P. v. Tomasini

P. v. Tomasini

Filed 8/18/08 P. v. Tomasini CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. CYNTHIA ANN TOMASINI, Defendant and Appellant.

A118472 (Sonoma County Super. Ct. No. SCR-460221)

Defendant Cynthia Tomasini appeals from a judgment sentencing her, following revocation of probation, to prison for four years, four months, a sentence that included the upper three-year term on one count of commercial burglary. She contends that the trial court abused its discretion in imposing the aggravated sentence on the base term because it had previously indicated that a mitigated term was appropriate. We disagree, and we affirm.

I. Background[1]

On March 8, 2005, 82-year-old John Foss went to write a check but was unable to locate his checkbook. He recalled that a few days earlier, a womanlater identified as defendanthad come to his home and asked if he was lonely and wanted to talk. He let her inside, and they conversed for about three hours. At one point, the woman excused herself to use the restroom. Mr. Foss subsequently learned that on March 2, 2005, one of his checks in the amount of $400 had been cashed at a Rohnert Park Check Center. The signature on the check was not his, and he never gave anyone the authority to sign one of his checks. The drivers license number written on the check belonged to defendant.

Over the following week, defendant cashed or attempted to cash a series of bad checks at a Bank of America in Rohnert Park. On March 9, 2005, defendant cashed a $400 check. The next day, she deposited a $700 check. On March 14, she attempted to cash another $700 check but was told that while she could collect $100 at that time, a hold would be placed on the remainder of the funds until the check cleared. Two days later, defendant, who was very intoxicated, attempted to cash another $700 check. By this time, however, the bank had learned that the previously cashed checks had been written on a closed account, causing a loss to the bank of $1,800. After being told that the police would be notified if she did not cover the loss, defendant fled, leaving behind a check cashing card, a DMV printout, and a forged check.

On March 17, 2005, defendant entered the Cash Box in the Coddington Mall and attempted to cash a $960 check made out to her from Fifth Street Gym, Inc. The clerk at the Cash Box called the gym to verify the check, and the gym responded that it had never issued a check to defendant. Defendant was detained until the police arrived.

Defendant explained to the investigating officer that a man she had met the previous weekend asked her to cash a check for him, claiming he did not have any identification. She told him how to spell her name and he completed the check. She did not ask him if the check was stolen but she assumed it was. Defendant was placed under arrest. At the time of her arrest, defendant was on a grant of conditional sentence.

On June 1, 2005, a second amended felony complaint charged defendant with check fraud (count 1, Pen. Code, 470, subd. (a)[2]); commercial burglary (counts 2, 5, 6, 8, 10, and 12; 459); receiving stolen property (count 3; 496, subd. (a)); attempting to pass a counterfeit check (count 4; 475, subd. (a)); and forgery (counts 7, 9, 11, and 13; 470, subd. (d).) Defendant pleaded not guilty to all charges.

On the day of her scheduled preliminary hearing, pursuant to a negotiated plea agreement, defendant pleaded no contest to two counts of commercial burglary (counts 5 and 6) and two counts of forgery (counts 7 and 9).

On December 27, 2005, the court suspended imposition of sentence and granted defendant three years of formal probation on the condition that she successfully complete a residential treatment program for her alcohol problem. She was also ordered to serve six months in county jail with no jail alternatives, although she would be eligible for transfer out of jail to a treatment facility if a space became available prior to the completion of her six-month sentence.

On March 1, 2006, probation was summarily revoked. The local Treatment Alternative Service Organization declined to work with defendant due to her poor behavior while in custody, and defendant had therefore not found a residential treatment program as required by the terms of her probation.

On March 16, 2006, the district attorney agreed to dismiss the violation of probation allegation, and probation was reinstated nunc pro tunc as of March 1, 2006. Defendant was ordered to serve the six-month jail term previously imposed, again with no jail alternatives.

As of April 24, 2006, defendant still had not been accepted into a residential treatment program. Defense counsel explained to the court that defendant remained willing to complete a residential program but that no program would accept her without an out-of-custody screening. The court reiterated that it would not release defendant without her being in a program and offered her a choice: [S]he can withdraw her plea and go to trial or Ill give her the mitigated term today. Defendant expressed her desire to withdraw her plea, and the matter was set for trial on June 5, 2006. After her plea was withdrawn, the court reiterated that [i]t might be in [defendants] best interest to take the mitigated term today. Defendant requested additional time to find a treatment program, but the court explained that she had had months to find a program and the court was no longer interested in a program for her.

On June 2, 2006, just days before trial was scheduled to commence, defendant appeared back in court, representing that she had been accepted into the residential treatment program at Marin Services for Women. As a result, the court allowed her to reenter her plea pursuant to the previously negotiated plea agreement. Defendant once again pleaded no contest plea to two counts of burglary and two counts of forgery, and the court found her guilty on all counts.

On June 5, 2006, defendant was again granted formal probation and committed to jail pending release to an available treatment program. Defendant was subsequently admitted to the Marin Services for Women treatment program, where she successfully completed the residential treatment program, remaining alcohol-free and probation-compliant for almost a year.

In April of 2007, however, defendant relapsed and began abusing alcohol again. On May 5, 2007, the probation department requested that probation be summarily revoked, alleging that defendant had violated her probation by failing to abstain from alcohol and controlled substances. On May 30, 2007, probation was summarily revoked.

On June 13, 2007, defendant was arrested following an incident in which the police were called to a hotel where they found defendant intoxicated and refusing to leave. Two days later, the department filed a supplemental violation of probation report alleging that defendant again violated probation by failing to abstain from alcohol as well as absconding from probation. Defendant admitted the probation violations, but requested another opportunity to complete a treatment program.

On July 16, 2007, the matter came on for sentencing. In a supplemental sentencing report, the probation department recommended that defendant not be placed back on probation, opining that she has been given several opportunities to gain the skills necessary to maintain a clean, sober, law-abiding lifestyle and that she is no longer appropriate for a continued grant of probation. Defendant, on the other hand, requested an opportunity to return to treatment, indicating that her relapse started as a small slip. Following the probation departments recommendation, the court terminated probation as unsuccessful and sentenced defendant to state prison for an aggregate term of four years, four months, comprised of the three-year upper term on count 5 plus consecutive eight-month terms on counts 6 and 9 (one-third the midterm). Sentence on count 7 was stayed pursuant to section 654.

This timely appeal followed.

II. Discussion

Defendants only challenge on appeal is to the courts imposition of the upper term on count 5. Determination as to the appropriate sentence is within the trial courts broad discretion (People v. Roe (1983) 148 Cal.App.3d 112, 119), and must be affirmed unless there is a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Jordan (1986) 42 Cal.3d 308, 316.) Sentencing courts have wide discretion in weighing aggravating and mitigating factors. (People v. Roe, supra, 148 Cal.App.3d at p. 119.)

When imposition of sentence is originally suspended but probation is subsequently terminated as unsuccessful, the court must impose sentence on the original offense. (People v. Billetts (1979) 89 Cal.App.3d 302, 309.) However, California Rules of Court, rule 4.435 (Rule 4.435), subdivision (b)(1) provides that 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 . . . .

Defendant argues that the court here acted in violation of Rule 4.435, subdivision (b)(1) in that it relied on her conduct following the grant of probation when it imposed the aggravated sentence of three years on the base term. This, she argues, is evident from the fact that at the April 24, 2006 hearing (when she withdrew her original no contest plea), the court indicated it was willing to impose the mitigated term. After she ultimately failed on probation, however, the court, on July 16, 2007, imposed the three-year upper term on the base charge. According to defendant, the only possible explanation for this change in sentence is that the court considered events that transpired between the grant of probation and subsequent sentencing after probation was terminated, namely, her performance while on probation.

This conclusion, claims defendant, is bolstered by the courts explanation for its sentencing choices:

The Court: [W]hen I was determining what the appropriate level for state prison would be, [I] took a look at her criminal history as set forth in the original presentence report, and Im noting a great concern, three DIsfour DUIs and three driving on a suspended license. Im sure that all of those driving on suspended licenses had to do with the fact of her DUIs. Shes got two separate theft convictions. And a drunk in public.

Defendant: All of my crimes areare related to alcohol, Your Honor.

The Court: I also note continuing problems while shes incarcerated.

According to defendant, this reference to problems while shes incarcerated demonstrates that the court improperly relied on factors that arose during the period of probation in fixing her sentence. We disagree.

First, defendant selectively cites the courts comments at the sentencing hearing to support her claims and, in doing so, fails to accurately convey the courts reasoning for its sentencing decision. At the hearing, the trial court imposed the four-year, four-month sentence and expressly stated, Thats based solely upon her prior criminal history, which is the kind of criminal history that makes her a danger to society. While the court may have earlier in the hearing made passing reference to defendants continuing problems while shes incarcerated, it confirmed that the sentence was in fact based solely on her criminal history, leaving no room for defendants assertion that the sentence was based on events that transpired after her June 5, 2006 grant of probation.

Additionally, defendants focus on the trial courts reference to the mitigated term is misplaced. This comment arose at the April 24, 2006 hearing at which defendant withdrew her initial plea of no contest, expressing her wish to instead proceed to trial. Subsequently, on June 2, 2006, she re-entered the same plea and was granted probation on June 5, 2006. Thus, the operative grant of probation was the June 5, 2006 probation grant, a fact defendant concedes. Because the reference to the mitigated term occurred prior to the operative grant of probation (that of June 5), the comment is of no relevance to the courts sentencing decision that resulted from defendants failure on that grant of probation. (See People v. Harris (1990) 226 Cal.App.3d 141, 145-146.) We find no support in the law, and certainly defendant does not cite any authority, for the proposition that when the court is imposing sentencing following a failed probation, it can be bound by an informal comment made prior to the time when probation was granted.

Defendant places significance on People v. Colley (1980) 113 Cal.App.3d 870 (Colley), a case defendant terms instructive. It is not. It is distinguishable. Defendant Colley was convicted of first degree burglary and placed on probation. The following year he was found in violation of probation and sentenced to prison for the middle term. Subsequently, however, his sentence was recalled and probation was again granted. Thereafter, Colley was convicted of petty theft, and the court again revoked probation and sentenced him to prison, this time imposing the upper term on the burglary conviction. In doing so, the court stated,  Well, I think hes been asking for the high base term. The court has given him every conceivable break.  (Id. at p. 872.)

The Court of Appeal held it was readily apparent that the trial court, in violation of an earlier version of Rule 4.435,[3] based the imposition of the upper term on circumstances that did not exist at the time of the grant of probation. (Colley, supra, 113 Cal.App.3d at p. 873.) The court explained: Obviously, by its previous selection of the middle term of imprisonment when [defendants] probation was revoked on the first occasion, the trial court did not make any findings which would have then [i.e., when probation was originally granted] supported the selection of the upper term.  While on the latest occasion the court did allude to appellants extensive criminal background and record [citation] such factor could only have supported the selection of the upper term if it were predicated upon appellants record prior to the original grant of probation. By its interim selection of the middle term, the court had necessarily determined that this record was not then sufficient to warrant imposition of the upper term. (Id. at pp. 873-874, italics omitted.)

Defendant suggests that the same is true here, that the court necessarily determined that the upper term was not justified by her pre-probation conduct because at the time she withdrew her no contest plea on April 24, 2006, the court was prepared to impose the mitigated term. However, unlike in Colley, where the trial court had actually imposed the middle term only to later recall the sentence and reinstate probation, the court here never imposed sentence, instead making only a passing reference to the mitigated term as part of an apparent attempt to keep defendants plea in place and avoid a trial. Nowhere does the record suggest that the court had weighed mitigating and aggravating factors and determined the mitigated sentence to be appropriate.

Lastly, we note that defendant presents two additional arguments in reply that were not raised in her opening brief. First, she argues the imposition of the aggravated term was arbitrary and capricious because her prior convictionsall misdemeanors, dating back fourteen yearsdid not warrant the upper term. Second, she argues that the factors in aggravation cited in the November 21, 2005 pre-sentencing report had not been admitted by defendant or found true by a jury and could not, therefore, be considered by the court pursuant to Blakely v. Washington (2004) 542 U.S. 296. Defendants failure to raise these issues in her opening brief waives them on appeal. (People v. Stanley (1995) 10 Cal.4th 764, 793; Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1345-1346, fn. 6; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) But even if these argument were not procedurally defective, we would nevertheless reject them on the merits.

As to the first argument, the courts imposition of the upper term was neither arbitrary nor capricious, nor did it exceed the bounds of reason after consideration of all of the circumstances. (People v. Trausch (1995) 36 Cal.App.4th 1239, 1247.) The court explained that defendants four convictions for driving under the influence were the kind of criminal history that makes her a danger to society. These convictions spanned 10 years, from 1993 to 2003, with the last of the four occurring just over two years prior to her arrest in this case. Defendants failure on probation due to her inability to abstain from alcohol demonstrated that she remained at risk for future DUI convictions, and we see nothing arbitrary or capricious about the trial courts imposition of the upper term in an attempt to protect society from that risk.

As to the second argument, as detailed above the court made clear that it was imposing the aggravated sentence on the base term solely based on defendants extensive criminal history, not the other aggravating factors cited in the pre-sentencing report, and as defendant concedes, the fact of a prior conviction need not be admitted or found true by a jury. (People v. Sandoval (2007) 41 Cal.4th 825, 836-837.)

III. Disposition

The judgment of conviction is affirmed.

_

Richman, J.

We concur:

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Haerle, Acting P.J.

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Lambden, J.

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[1] Because defendant entered into a negotiated plea agreement prior to trial, we derive the factual background from the felony presentence report.

[2] All statutory references are to the Penal Code.

[3] What was Rule 435 in 1980 has since been re-numbered Rule 4.435.