P. v. Bradley























Filed 12/12/12 P. v. Bradley 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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. LEONARD R. BRADLEY, Defendant and Appellant.

A135331 (Marin County Super. Ct. No. SC11005368)

On
September 26, 2011, a home
in Nicasio was burglarized. Defendant
was arrested and charged with burglary,
receiving stolen property, and being a past convicted felon in possession
of firearms. Defendant’s criminal
history went back to 1977, and included three revocations of probation.

On
February 2, 2012, defendant
was set to appear before Judge Andrew Sweet, sitting as a magistrate to conduct
the preliminary examination. Matters
never got to that stage because defendant and the prosecution reached a href="http://www.mcmillanlaw.com/">negotiated disposition. Defendant entered a plea of guilty to the
burglary count (Pen. Code, § 459), and admitted allegations that the
burglary qualified as a serious felony (Pen. Code, § 1192.7, subd.
(c)(18)), and that he was presumptively ineligible for probation (Pen. Code,
§ 1203, subd. (e)(4)) because he had eight prior felony convictions. The two other counts were dismissed with the
proviso that they could be considered at the time of sentencing. Defendant acknowledged that the maximum term
of imprisonment was six years in state
prison. Judge Sweet then certified
the matter to the superior court for sentencing.

The
sentencing hearing was conducted by Judge Sweet on April 26, 2012.
Judge Sweet had before him a sentencing memorandum from defense counsel,
advising that “Mr. Bradley is not well, mentally or physically.” Counsel explained: “With respect to his physical health, Mr.
Bradley suffers from diabetes, high blood pressure, sleep apnea, and blindness
in one eye. In 2007 he suffered a
stroke” leaving him “with short-term memory loss, headaches, vomiting and the
inability to function in a normal work environment.” “Regarding his mental health, Mr. Bradley has
been diagnosed with Schizophrenia and Bipolar Disorder.” Because of these myriad maladies, counsel
represented, defendant is taking a dozen daily medications. On top of that, “Mr. Bradley is a
self-admitted heroin and cocaine addict” who “has undergone substance abuse
treatment in five different facilities.”

Counsel
asked for probation because “Mr. Bradley has [only] recently been dual
diagnosed,” that is, his mental diagnosis added to his long-standing abuse
problem. His unsatisfactory history of
substance abuse treatment was therefore nullified because it did not address
his mental problems. Defendant has begun
attending a facility in Contra Costa (where he lives)which “is equipped to
provide the psychotherapy, vocational therapy and social/psychiatric rehabilitation”
that he needs. Defendant is also
attending “NA meetings 2-3 times per week” and seeing a psychiatrist. Finally, “Mr. Bradley has the complete
support of his wife of 20 years,” who “has been instrumental in getting him the
help he so desperately needs.” Given
that “This Honorable Court . . . has worked closely with dual
diagnosis,” the court was aware that “dual diagnosis treatment is a long and
arduous road.” Counsel therefore
submitted that “prison . . . is not the right option for Mr.
Bradley.” With some caution, the
probation officer agreed with this reasoning and recommended probation.

At
the sentencing hearing, the prosecutor stated that he was “quite shocked” by
the probation officer’s recommendation, and remained “solidly convinced that
this is a State Prison case and that Mr. Bradley has earned not only a State
Prison sanction, but that it should be an upper term State Prison
sanction.” Defendant’s criminal history
“weighs very heavily against [him],” the prosecutor submitted, thus making the
statutory presumption of probation ineligibility “strong here.”

After
listening to additional argument from counsel and hearing from defendant, Judge
Sweet stated his decision as follows:

“I’m
going to deny probation and sentence Mr. Bradley to prison.

“My
first legal calculation starts with Penal Code Section 1203 (e)(4) and
Penal Code Section 462 (a). Both of
those sections indicate that Mr. Bradley is not eligible for probation, unless
this is an unusual case where the interest of justice would be served to grant
him probation.

“To
help the Court make that legal evaluation, the Rules of Courthref="#_ftn1" name="_ftnref1" title="">[1]
provide some guidance; Rule 4.413, specifically. I’ve carefully reviewed Rule 4.413 and find
that the following factors clearly do not apply: (c)(1) (A), (c)(1)(B), (c)(2) (A) and (c)(2)(C). That would leave only factor (c)(2)(B)
applicable here, possibly.

“That
factor guides the Court and allows the Court, even when probation is
presumptively not appropriate per statutes, to grant probation if the Court can
conclude that the crime at issue was committed because of a mental condition
and there’s a high likelihood that the defendant would respond favorably to
mental health treatment.

“I’ve
evaluated this case as carefully as I can and all the things I know about it
and about the defendant and I cannot conclude either of those things are
true. This crime was committed because
the defendant wanted money to pay bills and buy drugs. I cannot conclude that it was committed
because he has a mental
health condition.

“He
may well have a mental health condition but his motive was personal and selfish
and independent, in my mind, of any mental condition that he has. He wanted money and he wanted to steal
people’s things so he could sell them to get money to pay his bills and to buy
drugs. So I do not find that this crime
was committed because of a mental condition.

“Secondly,
the Court would also have to find, not alternatively, but also have to find
there’s a high likelihood that the defendant would respond favorably to mental
health treatment. But as I’ve indicated,
this report makes clear to me that the defendant was undergoing mental health
treatment already and committed this offense.
So I cannot find, nor do I find, that there’s a high likelihood that, in
the future, he would respond favorably to mental health treatment because, in
the past, he has not.

“I
am making this finding with as much compassion as I can but when I evaluate the
factors that I need to evaluate, I find that this is not an unusual case and
the interest of justice would not be served to place the defendant on
probation. I think the community would
be at risk if he was on probation.

“So
under 4.413, in conjunction with Penal Code Sections 462 (a) and 1203 (e)(4),
probation is denied. If there were no
probation preclusion clauses in play in this case, I would do an evaluation on
whether probation is appropriate under Rule 4.414.

“Just
running through those factors quickly, even if I was making a probation versus prison
determination, based on Rule 4.414, I would still deny probation. The unfavorable factors that I find are
listed under factors (a)(5), (a)(6), (a)(8), (b)(1), (b)(2), (b)(6), (b)(7),
and (b)(8). And rather than go through
all of those, specifically, I’m just indicating for the record that probation
would be denied under those factors, even if [Penal Code Sections] 1203 (e)(4)
and 462 (a) were not in play. But since
those are in play, the Court is not finding this an unusual case, I don’t have
to do the full analysis.

“To
decide which term of the triad to impose, the Court has to evaluate the
aggravating circumstances versus the mitigating circumstances. I’ve evaluated the aggravating circumstances under Rule
4.421 and find that the following apply and are aggravated circumstances in
this case: factor (a)(8), the manner in
which the crime was carried out indicates planning, sophistication and
professionalism. It appears to the Court
that the defendant drove to an isolated area where he knew there were
homes—this is a residential area—and had a plan on how to burglarize these
homes. I’m not indicating that the plan,
itself, was particularly sophisticated in that he knocked on doors until he
broke in, but, overall, the fact that he went to a place out of view and had
this plan, at least, indicates to me, indicates planning, some level of
sophistication and some level of professionalism.

“I
find that factor (a)(9) also applies in that the amount of loss to the victims
was great in this case. The numbers are
detailed in the probation report. I find
that it was a significant amount of loss.

“Factor
(b)(2), I find, applies. The defendant’s
prior convictions are numerous; specifically, he has eight prior felony
convictions. Factor (b)(3) applies as an
aggravating factor. The defendant served
a prior prison term. I think two, the DA
thinks maybe three, but two prior prison terms.

“(B)(4)
applies. The defendant was on probation
at the time the offense was committed.
He was on probation out of Alameda County. And factor (b)(5) also applies, as probation
documented in their report, defendant’s prior performance on probation or
parole was unsatisfactory. It seems to
the Court that, if not every time he’s been on probation or parole, certainly,
most of the time, he’s been revoked.
Some of his probation grants have ended up in revocations leading to
State Prison terms. Those are the
aggravating factors.

“When
the Court considers the mitigating factors listed in Rule 4.423, I can only
find one mitigating factor and that is (b)(3), which is that the defendant
voluntarily acknowledged wrongdoing at an early stage of the criminal
process. And I think that’s true and
that certainly, in this case, is a mitigating factor.

“It
should be noted that, in addition to—well, what I want the record to reflect
is, I’m not relying on the People’s representation that the property associated
with Count II, [the receiving stolen property count] that was dismissed with a >Harveyhref="#_ftn2" name="_ftnref2" title="">[2]
waiver. I’m not accepting the People’s representation
that that property was the subject of first degree burglaries or ones that the
defendant committed. That was a 496
charge dismissed with a Harvey
waiver. I’m considering that count only
in the following context: That
Mr. Bradley had in his possession property of others that he was not
entitled to have. I’m not concluding
that he committed additional burglaries in imposing my sentence here. [¶] . . . [¶]

“So
all of that being said, the Court has to select the appropriate term, balancing
the aggravating and mitigating factors.
This is a two, four, six crime.
The Court has balanced the aggravating factors and finds the aggravated
term is the appropriate one. Defendant
is, therefore, sentenced to six years in the State Prison.”

The
two statutes cited by the trial court concerning probation eligibility provide
in relevant part:

“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 of the following
persons: [¶] . . . [¶] (4) Any person who has been
previously convicted twice in this state of a felony
. . . .” (Pen. Code,
§ 1203, subd. (e)(4).)

“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 burglary of an inhabited dwelling house
. . . .” (Pen. Code,
§ 462, subd. (a).)

A
trial court’s decision under these statutes is reviewed according to the abuse
of discretion standard. (E.g., >People v. Bradley (2012) 208 Cal.App.4th
64, 89 [§ 1203]; People v. Marquez
(1983) 143 Cal.App.3d 797, 803 [§ 462].)
This court has explained the extremely deferential nature of this
review: “ ‘The standard for viewing
a trial judge’s finding that a case may or may not be unusual is abuse of
discretion.’ [Citation.] The trial judge’s discretion in determining
whether to grant probation is broad.
[Citation.] ‘[A] “ ‘decision
will not be reversed merely because reasonable people might disagree. “An appellate tribunal is neither authorized
nor warranted in substituting its judgment for the judgment of the trial
judge.” ’ ” ’ [Citation.] ‘[T]hese precepts establish that a trial
court does not abuse its discretion unless its decision is so irrational or
arbitrary that no reasonable person could agree with it.’ [Citation.]
Generally, ‘ “ ‘[t]he burden is on the party attacking the
sentence to clearly show that the sentencing decision was irrational or
arbitrary. [Citation.] In the absence of such a showing, the trial
court is presumed to have acted to achieve legitimate sentencing objectives,
and its discretionary determination to impose a particular sentence will not be
set aside on review.’ ” ’
[Citation.]” (>People v. Stuart (2007) 156 Cal.App.4th
165, 178-179.)

The sole point of defendant’s opening brief is that Judge
Sweet abused his discretion “in applying [rule 4.413 (c)(2)(B)] and denying
. . . probation.” Judge
Sweet’s remarks were quoted at length to show that he certainly did consider
whether defendant should be admitted to probation, and even quoted the language
of the rule. We do think it notable that
defense counsel at trial made a point of mentioning Judge Sweet’s familiarity
with the concept of dual diagnosis, yet appellate counsel charges Judge Sweet
with failing to recognize that defendant’s “case squarely fit this exceptional
circumstance.” Counsel’s claim that
Judge Sweet “was unwilling to engage in a thorough analysis” seems particularly
unfair. Defendant’s drawing attention to
this court’s observation in People v. Stuart, supra, 156
Cal.App.4th 165, 178—that the situation contemplated by rule 4.413(c)(2)(B)
“ ‘is permissive, not mandatory’ ”—undercuts defendant’s contention
because it only underscores the scope of the trial court’s discretion. And although counsel’s reargument of
defendant’s circumstances is ably done, it does not establish that Judge
Sweet’s conclusion was legally erroneous.
At best, it only establishes that reasonable minds could differ as to
the application of the rule to defendant’s situation. However, as we recognized in Stuart,
such a disagreement cannot establish an abuse of discretion, that is, a
decision so irrational and arbitrary that no reasonable person could agree with
it.

There
is a separate and independent ground for affirmance. Judge Sweet’s remarks show that he went a
step further than defendant acknowledges and in essence considered defendant’s
application for probation de novo, as if there was no issue of statutory
ineligibility. So, even if defendant was
correct in his claim that Judge Sweet “was wrong on the facts and wrong in its
application of [rule 4.413(c)(2)(B)],” there is no answer to the plain fact
that Judge Sweet concluded that “even if I was making a probation . . .
determination[] based on Rule 4.414, I would still deny probation. Defendant’s failure to challenge that
determination means that reversal is not possible. (See People v. Bradley, supra,
208 Cal.App.4th 64, 89.)

The
judgment of conviction is affirmed.









_________________________

Richman,
J.





We concur:





_________________________

Kline, P.J.





_________________________

Haerle, J.