Opinion
H025251.
11-19-2003
THE PEOPLE, Plaintiff and Respondent, v. KIM VELASQUEZ, Defendant and Appellant.
After a court trial, defendant Kim Velasquez was convicted of commercial burglary (Pen. Code, § 459), receiving stolen property (§ 496, subd. (a)), and petty theft with a prior theft conviction (§§ 666/484). The trial court found true allegations that defendant had served three prior prison terms (§ 667.5, subd. (b)). Defendant was sentenced to state prison for three years for the burglary count and to one year for each of the three prison prior enhancements. On appeal defendant contends the trial court abused its discretion by imposing the upper term on the burglary count. We affirm the judgment.
I. Facts
On September 5, 2001, Kenneth Winton was doing maintenance work at his property located on Bardue Street in the town of Aromas when he noticed a wheelchair in front of an open garage door. When Winton saw defendant inside the garage, he asked what defendant was doing and told him to leave or he would call the police. Defendant walked over to his wheelchair and appeared to be leaving.
Twenty minutes later, one of Wintons tenants alerted him that a man was taking a toolbox. Winton walked to the garage area and found defendant seated in his wheelchair in an adjacent alley. A metal box containing a Makita sawzall was in defendants lap, and a Craftsman sawzall was on the ground near defendant. Defendant tried to get up from his wheelchair, but Winton did not permit him to rise from the chair. The total value of the tools that had been taken from Wintons garage was approximately $300.
Kathy Yannone, one of Wintons tenants, was pulling into her driveway when she saw defendant in a wheelchair holding a metal toolbox in his lap. Johnny Velasco, Yannones cousin, was gardening on Bardue Street that day. When Yannone told him about the male with the toolbox, Velasco looked over a fence and saw defendant seated in the wheelchair in the alley. At that time, defendant appeared to be reaching down to pick up something, and Velasco noticed a metal box on the ground next to the garage. Velasco earlier had seen defendant holding a wheelchair and yelling at someone in the garage and had seen defendant walk out of the garage and then wheel away.
When Monterey County Deputy Sheriff Joseph Martinez arrived at the scene, he photographed the physical evidence and spoke with defendant. Defendant, who was seated in his wheelchair, told Martinez he could not walk and could not have committed the crime.
Defendant testified on his own behalf as follows.
On September 5, 2001, he was on Bardue Street searching for a place to urinate. He found an old garage and was standing in its doorway when a man said he could not urinate there and that he had to leave. Defendant left. He was headed to a nearby park and was in an alleyway adjacent to the garage when the same man accused him of taking some of his things. Defendant testified that he never saw the two metal boxes until the deputy arrived and that he was unable to walk at the time of the alleged theft. He specifically denied walking from the garage.
II. Discussion
Defendant contends the trial court abused its discretion by imposing the upper term of three years for the burglary count. Defendant recognizes that, if the trial court were to select a sentence based solely upon his lengthy criminal record, his multiple prison terms, and the fact he was on parole at the time of the present offense, "a high end of imprisonment must be considered to be within its discretion." He argues, however, that the trial court failed to consider relevant mitigating factors, namely, that the present offense was "unsophisticated" and that the deputy district attorney in the case had "urged a low end term of imprisonment."
A sentencing court has wide discretion in weighing the aggravating and mitigating factors relevant to choosing an appropriate sentence. (People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1588.)
In this case, the probation report lists no mitigating factors. On the other hand, the report lists four aggravating factors under California Rules of Court, rule 4.421(b): defendants prior convictions are numerous (rule 4.421(b)(2)); defendant has served prior prison terms (rule 4.421(b)(3)); defendant was on parole when the current crime was committed (rule 4.421(b)(4)); defendants prior performance on probation was unsatisfactory (rule 4.421(b)(5)).
The probation report includes a comment from the victims wife that defendant "is known to steal items around the neighborhood, and is `considered a holy terror." The report also includes a comment from defendants parole agent that "defendant does have some mobility and physical problems, but these problems are not keeping him from stealing things." The parole agent also commented that, "before the instant offense, neighbors had been calling the Parole Officer to complain that the defendant was wheeling around the neighborhood stealing items from around houses."
The probation report further indicates that, since defendant originally was paroled on November 23, 1997, he has accumulated ten violations of probation. Three matters went to hearing. They involved heroin, cocaine, and alcohol abuse, and each resulted in defendant being returned to prison for at least three months. The violations that did not go to hearing include failure to report, cocaine use, a dirty test for cocaine, a dirty test for amphetamine, possession of alcohol and paraphernalia, a dirty test for cocaine.
The probation report recommendation was "that probation be denied and the defendant be committed to the custody of the Department of Corrections for the term prescribed by law." The report sets the base term sentencing range for the commercial burglary as 16 months, 2 or 3 years, and the report notes that each of the three prison prior enhancements "adds an additional year."
At sentencing, the prosecutor noted that defendant originally was facing two strikes in this case "which would [have] enhance[d] the sentence dramatically" and "hes already received the benefit of that." The prosecutor urged the court to impose a prison sentence, added that the comment in the probation report that defendant is "like a holly [sic] terror in the neighborhood is probably pretty accurate" given his many parole violations. Although the prosecutor acknowledged that defendant is "certainly deserving of the six years," i.e., the three-year upper term plus three years for the prior prison term enhancements, the prosecutor started to suggest the mitigated term but then simply said that he thought that defendants "conduct is so pathetic that perhaps he might be deserving of something less than the six years."
The trial court sentenced defendant to the upper term on the burglary count, based upon its opinion that "defendant is a poster boy for the word `incorrigible."
Assuming arguendo defendant may challenge the trial courts imposition of the upper term despite his failure to object to the trial courts sentencing choice as well as its failure to state more precise reasons for imposing the upper term, we conclude the trial court did not abuse its discretion in imposing the upper term in this case.
Since there were four factors in aggravation and no mitigating facts, one aggravating factor would support imposition of the upper term. (People v. Osband (1996) 13 Cal.4th 622, 730; People v. Zamora (1991) 230 Cal.App.3d 1627, 1637.) The trial courts determination that defendant "is a poster boy for the word `incorrigible" encompasses at least three of the four aggravating factors listed in the probation report, namely, that his prior convictions are numerous (rule 4.421(b)(2)), he was on parole when the crime was committed (rule 4.421(b)(3)), and his prior performance on probation was unsatisfactory (rule 4.421(b)(5)).
Defendant has failed to show that the sentencing decision was irrational or arbitrary. Even assuming arguendo the trial court should have considered the unsophisticated nature of the current offense and the prosecutors suggestion that a mitigated term would be appropriate, we are convinced the trial courts exercise of legal discretion was "`guided by legal principles and policies appropriate to the . . . matter at issue. [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) Accordingly, we conclude the trial court did not abuse its discretion in imposing the upper term.
III. Disposition
The judgment is affirmed.
We concur: Rushing, P.J., Wunderlich, J. --------------- Notes: All further statutory references are to the Penal Code unless otherwise specified.