Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Marin County Super. Ct. No. SC147074B
STEIN, J.
David L. Strong (defendant) pleaded guilty to one count of felony brandishing for the benefit of a criminal gang (Pen. Code, §§ 417, subd. (a)(2); 186.22, subd. (d)). He waived his right to appeal except for sentencing error. He also waived the possibility of a misdemeanor disposition, the right to a jury trial on sentencing factors, and the right not to have dismissed counts considered at sentencing. In accordance with the terms of the plea the court dismissed the remaining counts of assault with a firearm (§ 245, subd. (a)(2)) with an allegation of personal firearm use (§§ 1192.7, subd. (c)(8); 12022.5, subds. (a) & (d)) and being an accessory after the fact to an assault with a deadly weapon (§ 32). The sentence was left open to the court, and it imposed the upper term of three years.
All statutory references are to the Penal Code.
Defendant’s sole contention on appeal is that the court abused its discretion in imposing the upper term. We shall find that the selection and imposition of the upper term was within the court’s discretion, and shall affirm the judgment.
Facts
According to the probation report, on March 19, 2006, defendant, who was angry about damage done to his car a few days earlier, approached a group of people in Marin City that he believed were responsible and pulled up his shirt to display a gun. He then pulled it out and ran directly towards Shawn Carr, pointing the gun directly at him, as Carr ran away.
On April 26, 2006, the Marin County Sheriff’s Department responded to reports of shots being fired in the 200 Lot area of Marin City. Witnesses said that a car drove up carrying several people. Apparently also in retaliation for the damage to defendant’s car, a person identified as James Kendall fired several shots as the car went through the lot, causing everyone present, including little children and elderly people, to run for cover. In a police interview, defendant denied knowing that Kendall had a gun, and stated he stayed in a store with his girlfriend. When Kendall returned, he told defendant they had to go because he had fired shots.
Analysis
In selecting the upper term, the court found the following aggravating factors: (1) the crime involved a threat of great bodily harm to others; (2) defendant had two dismissed counts with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754); (3) he engaged in violent conduct that posed a serious threat to society; and (4) he had violated his juvenile probation twice. The court found the only mitigating factor was defendant’s youth. It found that the aggravating factors outweighed the mitigating factors and imposed the upper term.
Defendant contends that the court failed to consider other mitigating factors listed in his sentencing memorandum, including that he had a limited juvenile record, had admitted guilt at an early stage, and had plans to work and go to school. He argues that had the court considered these factors they would have “balanced out” the aggravating factors, and the court would instead have selected the middle term as recommended by the probation department.
An early admission of guilt is not a mitigating factor when it is made as part of a negotiated disposition that includes benefits for the defendant. (People v. Burg (1981) 120 Cal.App.3d 304, 306-307.)
Nothing in the record supports his contention. Defendant argued in his sentencing memorandum that the court should find the mitigating factors he now contends the court ignored. The court stated it had read the memorandum. We must presume that the court considered and rejected the suggested mitigating factors unless the record affirmatively shows that it did not. (Cal. Rules of Court, rule 4.409; People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 835; People v. White (1981) 117 Cal.App.3d 270, 280, disapproved on other grounds in People v. Scott (1994) 9 Cal.4th 331, 353, fn. 16.) The court is not required to state its reasons for rejecting factors in mitigation. Therefore, the mere failure to state these reasons does not affirmatively demonstrate that the court failed to consider the mitigating factors defendant suggested. (People v. Johnson (1988) 205 Cal.App.3d 755, 758; People v. Combs (1986) 184 Cal.App.3d 508, 511; People v. White, supra, at p. 280.)
The court also did not find all the aggravating factors suggested by the prosecution, and, by finding that defendant’s youth was a mitigating factor, implicitly rejected the prosecution’s argument that it should find no mitigating factors in light of defendant’s involvement with a street gang, and the fact that, although he was young, he was older than his codefendants.
The court has wide discretion to weigh aggravating and mitigating factors, and to balance them quantitatively and qualitatively. (People v. Lamb (1988) 206 Cal.App.3d 397, 401.) It is defendant’s burden to show that the court’s sentencing choice was arbitrary or irrational. He does no more than state his disagreement with the court’s decision. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
Conclusion
The judgment is affirmed.
We concur: MARCHIANO, P. J., MARGULIES, J.