Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FMB007072, Rodney A. Cortez, Judge.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant and appellant Erron Bradford Zimmerman appeals following revocation and termination of his probation. He contends the trial court erred when it relied on his poor performance on probation to justify imposing the middle term of four years for his offense of first degree residential burglary. (Pen. Code, § 459.)
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Pursuant to a plea agreement, defendant pled guilty on November 16, 2004, to first degree residential burglary. (§ 459.) A probation officer’s report filed January 26, 2005, indicated defendant and a confederate were doing some framing and yard work at a residence while the homeowner was away. When the homeowner returned, he discovered a chop saw, a chain saw, and a paint spray gun were missing. He reported the theft and said he thought defendant and the confederate took the property in exchange for money they felt they were owed. When the chop saw and chain saw were located at a pawnshop, one of the employees identified defendant as the individual who brought the property into the pawnshop.
On January 26, 2005, defendant was granted probation for a period of 36 months, subject to certain terms and conditions, including substance abuse and mental health treatment. A petition to revoke defendant’s probation was filed on March 9, 2005. The petition alleged defendant was arrested on March 8, 2005, for being under the influence of methamphetamine and had failed to report his address to the probation officer as required. On April 6, 2005, defendant admitted the probation violations, and probation was continued on modified terms, which included 365 days in jail and an extension of probation to January 29, 2008.
A second petition to revoke defendant’s probation was filed on November 2, 2005. The petition alleged defendant had been arrested after drinking heavily and had stopped going to his mental health counselor and taking his medication. In a supplemental report, defendant’s probation officer concluded defendant “is not a good candidate for reinstatement on probation” and recommended a prison sentence of four years. On December 7, 2005, defendant applied to a mental health court program. He was accepted into the program on January 17, 2006. On January 24, 2006, despite the probation officer’s recommendation of a prison sentence, probation was continued subject to additional terms, including weekly participation in a mental health rehabilitation and treatment program.
On February 27, 2007, defendant failed to appear as ordered. The court revoked probation and issued a bench warrant. On March 29, 2007, probation was reinstated and defendant was released to begin the “Star Program.” However, on August 22, 2007, the court found defendant was not complying with the terms and conditions of the program, revoked his probation, and remanded him into custody. On September 4, 2007, criminal proceedings were suspended and defendant was placed in a diagnostics facility for diagnosis and a recommendation.
On January 3, 2008, defendant once again admitted being in violation of the terms and conditions of his probation. The court denied probation and sentenced defendant to the middle term of four years in state prison.
DISCUSSION
Citing rule 4.435 of the California Rules of Court, defendant contends the trial court abused its discretion because it imposed the middle term of four years based on defendant’s “numerous probation violations.” According to defendant, the length of his sentence could only be based on factors that existed at the time of the original offense, and subsequent events may not be taken into consideration.
In support of his argument, defendant also cites the following statement from our Supreme Court’s decision in In re Rodriguez (1975) 14 Cal.3d 639, 652: “[T]he primary term must reflect the circumstances existing at the time of the offense.” However, Rodriguez was decided prior to the Determinate Sentencing Act (Stats. 1976, ch. 1139, § 1 et seq.) and does not support defendant’s argument. The facts in Rodriguez are not analogous to those at issue here and the court in Rodriguez did not consider the circumstances presented in defendant’s appeal. The issues in Rodriguez were whether the 22-year term served by the defendant under California’s former indeterminate sentencing scheme was constitutionally disproportionate to his offense and whether the sentencing authority abused its discretion in failing to fix a lesser term and discharge the defendant on parole. (Id. at pp. 645-656.) “ ‘ “It is axiomatic that language in a judicial opinion is to be understood in accordance with the facts and issues before the court. An opinion is not authority for propositions not considered.” ’ ” (People v. Knoller (2007) 41 Cal.4th 139, 154-155.)
In pertinent part, rule 4.435(b) of the California Rules of Court states as follows: “On revocation and termination of probation . . . when the sentencing judge determines that the defendant will be committed to prison: [¶] (1) . . . [¶] The length of the sentence must be based on circumstances existing at the time probation was granted, and subsequent events may not be considered in selecting the base term . . . .”
At the time of sentencing, the trial court advised defendant as follows: “There is a penalty when you violate the terms of your probation and it is an individual basis. Every case is different. [¶] . . . [¶] What I have to look at is your history. I have to look at how many chances you have been given. How successful you were. Given those chances, at this point, I don’t believe that the aggravated term is appropriate. I recognize that this is going to be your first sentence to state prison. Yes, I am going to sentence you to prison. But I see based upon your lack of success on probation that the midterm of four years is the appropriate term. [¶] I don’t agree that the mitigated term is the appropriate term given the number of violations that you have had. Had we been here months earlier, with only one or two violations, then there would be a better argument.”
As defendant acknowledges, the appellate court in People v. Harris (1990) 226 Cal.App.3d 141 (Harris), reached a conclusion that undermines defendant’s argument. Harris essentially sets forth an exception to California Rules of Court, rule 4.435(b)(1). After the original grant of probation, the defendant in Harris had his probation revoked and then reinstated. (Harris, at pp. 143-144.) Citing former California Rules of Court, rule 435(b)(1), now rule 4.435, the defendant argued the court could consider only those circumstances existing at the time probation was originally granted. The Court of Appeal disagreed and concluded that “a later sentence upon revocation of the reinstated probation may take into account events occurring between the original grant and the reinstatement.” (Harris, at p. 147.) “To hold otherwise would seriously impede a court’s flexibility to deal effectively with the offender who, granted the ‘clemency and grace’ of probation in the hopes of achieving rehabilitation [citation], proves unable to abide by the conditions of that liberty the first time out. Allowing an offender to fail multiple grants of probation with absolute impunity under [California Rules of Court, rule 4.435 (b)(1)] would discourage a court from ever reinstating probation.” (Harris, at p. 147.)
Defendant urges us to reject the holding in Harris. However, the Harris decision has been good law since 1990. It is well reasoned, persuasive, and directly responsive to the issue raised in defendant’s appeal. We therefore have no reason to reject the holding in Harris. As a result, we also have no reason to conclude the trial court abused its discretion in considering defendant’s performance on probation from the time it was originally granted on January 26, 2005, until the final reinstatement on March 29, 2007.
It is true the record suggests the court may also have considered defendant’s poor performance on probation after the final reinstatement on March 29, 2007, until it was revoked again for the final time on August 22, 2007. “ ‘When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. [Citation.]’ ” (People v. Weaver (2007) 149 Cal.App.4th 1301, 1325.) We have found nothing in the record indicating there is a reasonable probability the court would have chosen a lesser sentence had it recognized it was precluded by California Rules of Court, rule 4.435(b)(1) from considering defendant’s performance during the relatively brief time period after the final reinstatement of probation on March 29, 2007, until probation was revoked for the last time on August 22, 2007. The court’s comments during defendant’s sentencing hearing indicate it was strongly in favor of the middle term based on the number of probation violations and the number of chances defendant had been given to make progress without going to prison. The record confirms defendant was given several generous opportunities over an extended period of time between January 26, 2005, and March 29, 2007, to address substance abuse and mental health issues and to comply with the terms of his probation but was unable to do so. In addition, as his counsel acknowledged at the time of sentencing, defendant did have a prior record of minor violations, including disturbing the peace and public intoxication. He was also on probation for one or more of these minor violations when he committed the offense in this case.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, J., GAUT, J.