Filed 7/8/15 P. v. Sims 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.



                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Butte)
                                                            ----




THE PEOPLE,                                                                                  C076643

                   Plaintiff and Respondent,                                    (Super. Ct. No. CM039638)

         v.

CHARLIE ANTHONY SIMS, JR.,

                   Defendant and Appellant.




         Defendant Charlie Anthony Sims, Jr., pleaded no contest to unlawfully driving or
taking a vehicle. (Veh. Code, § 10851, subd. (a).) The trial court denied his motion to
reduce his offense to a misdemeanor pursuant to Penal Code section 17, subdivision (b)
(hereafter section 17(b); unless otherwise stated, statutory references that follow are to
the Penal Code), and sentenced him to two years in county prison.
         On appeal, defendant contends the trial court abused its discretion in denying his
section 17(b) motion. We affirm the judgment.


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                                FACTS AND PROCEEDINGS

       The facts are taken from the probation report, which includes information obtained
from the California Highway Patrol report, and which, as stipulated by the parties,
provided the factual basis for defendant’s plea.
       Just before midnight on October 2, 2013, a California Highway Patrol officer
answered a report of a reckless driver in Oroville. He found the reported vehicle and,
after pacing it at 70 miles per hour in a 55 mile per hour zone, made a traffic stop. The
officer noticed a piece of metal protruding from the ignition. The driver, later identified
as defendant, appeared nervous and was unable to provide identification to the officer.
When asked for his name and driver’s license, defendant identified himself as “Marvin
Webb Lawson,” and gave a date of birth and address that matched that of Mr. Lawson. A
records check revealed the vehicle had been reported stolen several days earlier.
Defendant was arrested and transported to the Butte County Jail, where a fingerprint
check revealed his true identity and it was discovered he had outstanding warrants.
       Defendant was charged by information with unlawfully driving or taking a vehicle
(Veh. Code, § 10851, subd. (a) -- count 1), receiving stolen property (§ 496, subd. (a) --
count 2), false personation (§ 529 -- count 3), and providing false information to a police
officer (Veh. Code, § 31 -- count 4). The information alleged he had two prior prison
terms within the meaning of section 667.5, subdivision (b).
       Defendant entered a negotiated plea of no contest to count 1 in exchange for
dismissal of the remaining charges with a Harvey waiver (People v. Harvey (1979)
25 Cal.3d 754 (Harvey)).
       Several months after entry of the plea, the trial court granted defendant’s request
to represent himself, but denied his motion to withdraw his plea and his motion to reduce
count 1 to a misdemeanor pursuant to section 17(b). The court sentenced defendant to




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county prison for the middle term of two years, imposed various fees and fines, and
awarded presentence custody credit.

                                         DISCUSSION

       Defendant contends the trial court abused its discretion in refusing to reduce his
felony offense to a misdemeanor pursuant to section 17(b).
       Because a conviction for violating Vehicle Code section 10851 allows for
punishment “by imprisonment in a county jail for not more than one year or pursuant to
subdivision (h) of Section 1170 . . . or by a fine of not more than five thousand dollars
($5,000),” or both (Veh. Code § 10851, subd. (a)), the offense is considered a “wobbler,”
and the trial court has the sole discretion, under section 17(b), to treat the offense as a
felony or a misdemeanor for sentencing purposes. (People v. Superior Court (Alvarez)
(1997) 14 Cal.4th 968, 977 (Alvarez).)
       “By its terms, [section 17(b)] sets a broad generic standard. [Citation.]” (Alvarez,
supra, 14 Cal.4th at p. 977.) “[S]ince all discretionary authority is contextual, those
factors that direct similar sentencing decisions are relevant, including ‘the nature and
circumstances of the offense, the defendant’s appreciation of and attitude toward the
offense, or his traits of character as evidenced by his behavior and demeanor at the trial.’
[Citations.] When appropriate, judges should also consider the general objectives of
sentencing such as those set forth in California Rules of Court, rule [4.410].” (Alvarez, at
p. 978, fn. omitted.) (All rule references that follow are to the California Rules of Court.)
       On appeal, the “ ‘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.]” (Alvarez, supra, 14 Cal.4th at pp. 977-978.)




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       Here, after considering the probation report and the written arguments of the
parties, the trial court denied defendant’s section 17(b) motion based on defendant’s prior
criminal history, the value of the items stolen, and the allegation that defendant
“continued to lie about his name and identity throughout the booking process and to
avoid the warrant out of Sacramento County and evading his probation.”
       Defendant first takes issue with the court’s consideration of the value of the stolen
vehicle which, according to the prosecution, was over $3,000, an amount that “exceed[s]
the threshold ($950) between misdemeanor and felony thefts by 400%.” Defendant
argues consideration of value where the offense in question is a violation of Vehicle Code
section 10851 will nearly always result in a felony conviction because most automobiles
have a value in excess of $950. The claim lacks merit. Defendant cites no authority, and
we are aware of none, that prohibits consideration of the value of the object of the crime,
here, an automobile. To the contrary, the value of the stolen vehicle driven by defendant
was one of several facts relevant to the “ ‘nature and circumstances of the offense,’ ” and
was thus appropriate for consideration under Alvarez, supra, 14 Cal.4th at page 978.
       Defendant argues the valuation was “pure speculation” because there was no
indication in the record as to whether the stolen vehicle was “a total loss to the victim
rather than recovered and returned to the owner.” We reject this claim, as it appears to
confuse the trial court’s appropriate assessment of the gravity of the crime based, in part,
on the value of the automobile taken with what defendant mischaracterizes as something
more akin to a calculation of damages. The fact that defendant unlawfully drove or took
something worth over $3,000 as opposed to something of much less value is relevant in
determining the gravity of the offense and the appropriate punishment in order to meet
general sentencing aims.
       Next, defendant claims his prior criminal history was an invalid basis for denial of
the motion because his current offense was “not more serious” than his prior offenses,
most of which were drug-related, and because he demonstrated his desire for and efforts

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at participating in a rehabilitation program. Again, we disagree. The trial court’s
discretionary determination appropriately includes consideration of the general objectives
of sentencing as set forth in rule 4.410, such as “[e]ncouraging the defendant to lead a
law-abiding life in the future and deterring him . . . from future offenses.” (Rule
4.410(a)(3); Alvarez, supra, 14 Cal.4th at p. 978, fn. omitted.) However, in so doing, the
court does not consider the current offense in a vacuum, but rather against the backdrop
of all relevant factors, including the defendant’s criminal history. (Id. at p. 979.) While
reasonable people might disagree as to how much weight to attribute to the type and
seriousness of defendant’s prior offenses and his past and current efforts to rehabilitate
himself, we are “ ‘ “neither authorized nor warranted in substituting [our] judgment for
the judgment of the trial judge.” [Citations.]’ ” (Id. at p. 978, quoting People v. Preyer
(1985) 164 Cal.App.3d 568, 573.)
       Finally, defendant takes issue with the court’s consideration of the allegation that
he gave false identity information to the arresting officer, a charge that was dismissed as
part of his plea bargain. He surmises that the court concluded such actions reflected
negatively on his character and attitude about the offense, but argues such a conclusion
was arbitrary and capricious in light of his expression of remorse for breaking the law
and the court’s expression of appreciation for his “genuine and sincere” apology, his
demeanor, and the manner in which he conducted himself in his own defense.
       We note the false personation charge was dismissed with a Harvey waiver and was
thus appropriate for consideration. We also note defendant’s apology came after the
court ruled on his section 17(b) motion. In any event, as the court pointed out, defendant
not only “continued to lie about his name and identity throughout the booking process,”
he also attempted to avoid the outstanding warrant and evade probation. Consideration of
those facts, coupled with defendant’s criminal history that includes numerous prior
convictions and violations of probation and parole, was neither irrational nor arbitrary.



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      The trial court did not abuse its discretion in denying defendant’s motion to reduce
his felony offense to a misdemeanor.

                                       DISPOSITION

      The judgment is affirmed.



                                                      HULL                  , J.



We concur:



      NICHOLSON            , Acting P. J.



      RENNER               , J.




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