P. v. Concepcion
Filed 12/30/09 P. v. Concepcion CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Shasta)
THE PEOPLE, Plaintiff and Respondent, v. STEVEN THOMAS CONCEPCION, Defendant and Appellant. | C061950 (Super. Ct. No. 08F10280) |
Defendant Stephen Thomas Concepcion took his brothers truck without permission. Driving 60 miles per hour in a 40 mile-per-hour zone, defendant struck a vehicle driven by Daniel Palmer, who sustained lacerations on his forehead and body, contusions, and a broken collarbone. Defendant had a blood-alcohol level of 0.36 percent, three prior convictions for driving under the influence of alcohol, and was on probation for driving under the influence.
Defendant pleaded no contest to driving under the influence with a blood-alcohol concentration above 0.08 percent, causing injury, with priors (Veh. Code, 23560, subd. (a), 23153, subd. (b)) and taking or driving a motor vehicle without the owners consent (Veh. Code, 10851, subd. (a)), while admitting a prior conviction for driving under the influence of alcohol and a great bodily injury enhancement (Pen. Code, 12022.7). The court denied probation and sentenced defendant to an upper term of three years for driving under the influence, a consecutive three-year term for the great bodily injury enhancement, and a consecutive eight-month term for unlawfully taking a vehicle, for a total term of six years eight months in prison. The court also imposed various fines and fees, and awarded 196 days credit (131 actual and 65 conduct). Defendant appeals. He has not obtained a certificate of probable cause.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant has filed a supplemental brief raising the following issues: 1) the great bodily injury enhancement should have been dismissed in the interests of justice; 2) his upper term sentence for driving under the influence was an abuse of discretion; 3) the court should have granted probation in light of the favorable evidence presented at the sentencing hearing; and 4) counsel was ineffective for failing to bring these or any other issues to the courts attention prior to sentencing.
At the sentencing hearing, defendant presented the testimony of Edgar Niederberger, a retired Shasta County Sheriffs deputy who had known defendant since 1996. He told the court defendant suffered from guilt over the death of his girlfriend in a traffic accident and could benefit from treatment. A director for Teen Challenge, a faith-based rehabilitation program, also testified. The witness said the highly structured program lasted 15 to 18 months, had a success rate of 80 to 85 percent for those who graduate, and had a spot available for defendant.
Defendant testified that he was an alcoholic. He expressed remorse for what happened to his victim and anger at himself. His goal is to get into Teen Challenge and address his problem with alcohol. The defense also presented a letter from defendant expressing regret, along with letters and testimony from others asking for leniency.
We are not persuaded by defendants claims regarding his sentence.
Because defendant willfully inflicted great bodily injury, he was ineligible for probation unless the court found an unusual case where the interests of justice would best be served by a grant of probation. (Pen. Code, 1203, subd. (e)(3).) A denial of a grant of probation generally rests within the broad discretion of the trial court and should not and will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner. [Citation.] (People v. Edwards (1976) 18 Cal.3d 796, 807.) The same abuse of discretion standard applies to the review of the trial courts determination of whether a case is an unusual one permitting probation. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)
Under Penal Code section 1385, a court has discretion to strike an enhancement in the furtherance of justice. (People v. Meloney (2003) 30 Cal.4th 1145, 1155.) A trial courts decision under Penal Code section 1385 is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) Likewise, a courts decision to impose an upper term is reviewed for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.)
The court adopted the circumstances in aggravation and mitigation and the reasons for denying probation from the probation report. Probation was denied because defendant was an active participant in the crime, the offenses were more serious than other instances of the same crimes, he took advantage of his brothers trust, and defendant was on probation for driving under the influence. The upper term sentence was based on the crime involving a taking or damage of great monetary value, defendants criminal record, his being on probation at the time of the offense, and his prior unsatisfactory performance on probation or parole.
The courts decision to deny probation and to impose the upper term and great bodily injury enhancement is amply justified by the record. Defendants criminal record demonstrates an inability to conform his conduct to the law and a serious problem with drunk driving. His conduct was particularly egregious -- driving a stolen truck with a 0.36 percent blood-alcohol level, and colliding with another vehicle at 60 miles per hour. While defendant presented mitigating evidence, his sentence was not an abuse of discretion in light of his extensive record of drunk driving and the highly aggravated nature of his offenses.
Finally, defendant does not identify any alleged deficiencies of trial counsel other than failing to present to the trial court the claims he has raised here. As those claims are without merit, trial counsel was not ineffective for failing to raise them. (People v. Cunningham (2001) 25 Cal.4th 926, 1038.)
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
BLEASE , J.
We concur:
SCOTLAND , P. J.
SIMS , J.
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