Opinion
D058391
01-24-2012
THE PEOPLE, Plaintiff and Respondent, v. MARK LEROY SUELFLOHN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Super. Ct. No. SCE294737
APPEAL from a judgment of the Superior Court of San Diego County, Herbert J. Exarhos, Judge. Affirmed in part and remanded to correct the abstract of judgment.
A jury convicted Mark Leroy Suelflohn of burglary of an inhabited dwelling (Pen. Code, §§ 459/460, count 1) and attempted arson (§ 455, count 2). The court sentenced Suelflohn to prison for a total term of four years, consisting of the middle term of four years on count 1 and a concurrent middle term of four years on count 2.
All statutory references are to the Penal Code unless otherwise specified.
Suelflohn appeals, contending (1) the court abused its discretion when it sentenced him to prison against the recommendation in the probation report; (2) the sentence for count 2 should be stayed under section 654; and (3) the abstract of judgment does not conform to the order of the court at sentencing and must be corrected. We affirm the conviction and order the superior court to correct the abstract of judgment to reflect a stay of the conviction of attempted arson and its corrected two-year sentence.
FACTS
Suelflohn's nephew, Brent Paulson, lived on Placid Court in El Cajon since December 2008. The residence was owned by Suelflohn's father and Suelflohn grew up in the house.
On March 16, 2009, Paulson left the residence for work at about 5:30 a.m. and returned around 3:30 p.m. When Paulson opened the front door he could smell natural gas. He saw a lit candle on the dining room table about 10 feet from the stove. He heard gas seeping from the stove and turned it off. The house was completely sealed except for an uncovered attic access with a vent, 30 to 40 feet from the kitchen. There was a trail of powdered sugar leading to Paulson's motorcycles in the garage. There was sugar on the seats and in the gas tanks of two of the motorcycles. The house was otherwise undisturbed.
An El Cajon police detective interviewed Suelflohn on September 10, 2009. Suelflohn became very upset and appeared to be sad. Suelflohn was bothered that his father was trying to write him out of his will and believed he deserved a portion of the Placid Court residence. Suelflohn admitted to turning on the burner, lighting a candle and pouring sugar in the gas tanks of the motorcycles. Suelflohn stated it was not his intent to hurt or kill anyone. Suelflohn stated he was trying to put a stink bomb in the house. He expressed remorse for using gas and said he did not know the science about natural gas and blowing up a house. He wrote an apology letter to his family.
The probation officer recommended formal probation. Statutorily, the crime of residential burglary does not allow for probation, except in unusual cases. The court found this was not an unusual case because there was significant planning that went into the incident and Suelflohn's activity exposed people and property to significant danger. The court stated that it weighed Suelflohn's drug abuse, family problems, statements in mitigation, and the recommendation in the probation report, but believed that because of the seriousness of the offense, he was better suited to a prison commitment. The court also expressed concern about Suelflohn's lack of remorse.
DISCUSSION
I
THE COURT DID NOT ABUSE ITS DISCRETION WHEN
IT FOUND THE CASE WAS NOT UNUSUAL UNDER CALIFORNIA
RULES OF COURT, RULE 4.413(b)
All rule references are to the California Rules of Court unless otherwise specified.
Suelflohn claims the court's decision to sentence him to prison constitutes an abuse of discretion because it is unsupported by the record and against the recommendation of the probation report. Suelflohn argues the court abused its discretion by failing to give sufficient weight to his age, lack of criminal record, lack of criminal sophistication, and long years of community service. Suelflohn also claims that the crime was fostered by unique emotional issues unlikely to reoccur.
Suelflohn was convicted of residential burglary. Section 462, subdivision (a), provides that: "Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person who is convicted of a burglary of an inhabited dwelling . . . ." Rule 4.413 applies to probation eligibility when probation is statutorily limited. Under rule 4.413(b), a court may not grant probation unless the statutory limitation is overcome by showing the case is unusual. To establish an unusual case, one of two criteria must be satisfied: (1) the basis for the prohibition of probation, although technically present, is not fully applicable; or (2) there are circumstances, not amounting to a defense, which limit the defendant's culpability for the offense. (Rule 4.413(c)(1), (2).) If either of these criterion is met, the court may, but is not required to, find the case unusual.
The facts showing a case may be unusual include whether the case is "substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence[,]" and "[t]he current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense." (Rule 4.413(c)(1)(A) & (B).)
The court may also determine that a defendant's culpability for the offense is limited because "[t]he defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence," or "[t]he crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation[,]" and "[t]he defendant is youthful or aged, and has no significant record of prior criminal offenses." (Rule 4.413(c)(2)(A), (B) & (C).)
We review a finding that a case may or may not be unusual for an abuse of discretion. "The trial court has broad discretion to grant or deny probation, except where otherwise limited by statute, and a decision denying probation will be reversed only upon a clear showing of abuse and that the court acted in a capricious or arbitrary manner." (People v. Marquez (1983) 143 Cal.App.3d 797, 803.) The burden is on the party challenging the sentence "to clearly show that the sentencing decision was irrational or arbitrary." (People v. Carmony (2004) 33 Cal.4th 367, 376.) "Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citation], and may balance them against each other in qualitative as well as quantitative terms." (People v. Roe (1983) 148 Cal.App.3d 112, 119.)
Here, the court found that the circumstances giving rise to the limitation on probation were not substantially less serious than the circumstances typically present in other cases involving the same probation limitation. (See Rule 4.413(c)(1)(A).) Suelflohn's attempted arson during the course of the burglary was as or more serious than crimes, like theft, typically intended during a burglary. The attempted arson, whether premeditated or not, could have resulted in serious damage to people and property.
Suelflohn claims that the facts reduce his culpability. The record shows that Suelflohn had problems with his family and career. Suelflohn was receiving treatment for debilitating health issues and severe depression, not amounting to a defense, at the time of sentencing. Suelflohn contends he is "aged," 53 years old, showed remorse for his actions, and that there is a high likelihood he would respond favorably to mental health care and treatment that would be required as a condition of probation. The court took these mitigating factors into consideration: "The record should reflect that I have read the defendant's statement in mitigation . . . . At no time did I detect any remorse or feelings from the defendant. His conduct was nothing less than bizarre." The court is required to consider these mitigating factors, but is not required to find them persuasive.
Suelflohn argues that the court abused its discretion when it sentenced him to prison against the recommendation of the probation report. However:
"The court in the final analysis must act upon its own judgment in these matters. In doing so, it may reject in toto the report and recommendation of the probation officer, and make its decisions in total disregard of that officer and of his recommendations . . . . [I]tsThe court is not required to follow the probation report. The report is a tool to help the court make its discretionary sentencing decision. The probation report here recommends probation but also states: "The defendant's actions were calculated and could have had grave circumstances." The court stated: "I have considered the fact that he's statutorily presumptively ineligible and the probation department opines that because of his lack of prior record, he should be considered for probation . . . but the seriousness of the offense, in and of itself, indicates and satisfies the court that he's not statutorily eligible for probation."
acts can in no way be subject to the criticism that they are arbitrary or without the legal discretion with which the court is invested." (People v. Lippner (1933) 219 Cal. 395, 403.)
The probation report concludes that if the court does not find this was an unusual case, the middle term, four years, is recommended. That is exactly the sentence the court gave Suelflohn.
Even if these arguments had merit, rule 4.413(c), did not require the court to find this was an unusual case. The finding of an unusual case is within the trial court's discretion, even when the relevant criteria are met, and the defendant bears a heavy burden when attempting to show an abuse of discretion. Suelflohn has not provided relevant authority or facts to support his claim that his case is unusual or that the court's sentence was arbitrary or capricious.
Because we are satisfied that the court did not abuse its discretion under rule 4.413, we need not consider Suelflohn's arguments pertaining to rule 4.414.
Rule 4.413(b) states " 'except in unusual cases where the interests of justice would best be served,' or a substantially equivalent provision, the court should apply criteria in (c) to evaluate whether the statutory limitation on probation is overcome; and if it is the court should then apply the criteria in rule 4.414 to decide whether to grant probation." (Italics added.) Where, as here, the court finds that the crime was not unusual under rule 4.413, it has no authority to grant probation.
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II
THE SENTENCE FOR COUNT TWO, ATTEMPTED ARSON,
MUST BE STAYED UNDER SECTION 654
Suelflohn contends, and the People concede, that the sentence for count 2, attempted arson, must be stayed under section 654. We agree.
Section 654, subdivision (a), provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Section 654 bars separate punishment for crimes where the crimes are incident to a single criminal objective. (People v. Britt (2004) 32 Cal.4th 944, 951-952.)
Suelflohn was convicted of burglary with the intent to commit arson. These offenses are part of a single indivisible transaction, and section 654 precludes punishment for both. Because the punishment is greater for burglary, the sentence for attempted arson must be stayed.
III
THE ABSTRACT OF JUDGMENT DOES NOT CONFORM
TO THE ORDER OF THE COURT
Suelflohn contends, and the People concede, that the abstract of judgment does not conform to the order of the court. We agree.
Suelflohn was convicted of attempted arson. The sentencing range for that crime is 16 months, two years, or three years. (§ 455, subd. (a).) The court selected the middle term of two years, and the abstract of judgment reflects a four-year concurrent term. The abstract of judgment is incorrect. Accordingly, it must be corrected to reflect a two-year stayed sentence on count 2.
DISPOSITION
We order the superior court to correct the abstract of judgment to reflect a stay of the conviction of attempted arson and its corrected two-year sentence. The judgment is otherwise affirmed.
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HUFFMAN, Acting P. J.
WE CONCUR:
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HALLER, J.
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AARON, J.