Filed 3/28/14 P. v. Flores CA4/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E057234

v.                                                                       (Super.Ct.No. RIF1202970)

GILBERT CARMELO FLORES,                                                  OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Edward D. Webster,

Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant

to art. VI, § 6 of the Cal. Const.) Affirmed as modified.

         Donna L. Harris, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Sabrina Y.

Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.




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       A jury found defendant and appellant Gilbert Carmelo Flores guilty of residential

burglary (Pen. Code, § 459).1 The trial court thereafter denied probation and sentenced

defendant to the upper term of six years in state prison. On appeal, defendant contends

that (1) the trial court abused its discretion in denying him probation; (2) the court clerk’s

minute order and abstract of judgment directing him to participate in a substance abuse

program while in prison should be amended; and (3) the court clerk’s minute order

prohibiting him from owning or possessing any firearms, ammunition or deadly weapons

for life must be amended. We agree with the parties that the minute order and abstract of

judgment should be modified, but reject defendant’s remaining contention.

                                               I

                                FACTUAL BACKGROUND

       On May 23, 2012, at around 8:00 a.m., Riverside County Sheriff’s Deputy Taroo

Curry responded to a residential burglar alarm. While investigating the residence,

Deputy Curry noticed that the rear bedroom window of the residence had been broken.

Approximately three minutes later, the deputy saw a man, later identified as defendant,

looking out the window. Deputy Curry was concealed from defendant’s view and called

for backup.

       About several minutes later, Deputy Curry saw defendant at the rear sliding glass

door. Defendant opened the rear sliding glass door, peered around, and then walked out




       1   All future statutory references are to the Penal Code unless otherwise stated.


                                               2
of the residence holding a duffle bag. Deputy Curry did not make eye contact with

defendant. Defendant jumped over a fence into another backyard.

       Deputy Curry followed defendant and confronted him. Deputy Curry identified

himself and told defendant to stop. Defendant stopped, turned around, and made eye

contact with the deputy. When the deputy asked defendant if anyone else was inside the

residence, defendant responded that his friend was inside, asserted the residence was his,

and then fled, jumping over fences through several backyards. While speaking to

defendant, Deputy Curry noticed a black Camaro in his peripheral vision. The Camaro

made a U-turn and traveled in the same direction that defendant fled. Deputy Curry was

unable to chase defendant due to the fences, and advised dispatch of his location and

defendant’s description.

       Deputy Curry returned to the residence and found no one inside. The deputy

observed that the residence had been ransacked; that doors and drawers had been left

open; and that clothing, mail and other items had been scattered throughout the house.

The deputy also found the duffle bag he saw defendant carrying. The duffle bag

contained gloves the deputy saw on defendant’s hands, jewelry, a broken vase, and loose

coins. The home owner later identified those items as her property.

       Approximately an hour and a half later, other deputies stopped the Camaro. Three

males were inside the vehicle; however, defendant was not among the three males.

Deputy Curry nonetheless suspected the men were involved in the burglary and the

vehicle was searched. Deputy Curry found defendant’s driver’s license inside a wallet, as

well as a rental agreement for the car in defendant’s name.


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       Later that day, deputies went to defendant’s residence and arrested defendant. A

search of defendant’s residence revealed stolen items and pawn slips.

                                               II

                                        DISCUSSION

       A.      Denial of Probation

       Defendant argues that the trial court abused its discretion in denying him probation

because the court misapplied the relevant criteria for determining a finding of an unusual

case justifying probation. Defendant also asserts that the court abused its discretion in

denying him probation because the court failed to consider and misapplied the factors

supporting a grant of probation. We disagree.

       The trial court is required to determine whether a defendant is eligible for

probation. (Cal. Rules of Court, rule 4.413(a).)2 All defendants are eligible for probation

if they are not within one of the categories restricting the availability of probation. The

most severe restrictions unconditionally prohibit probation for certain felony cases (see,

e.g., §§ 1203.06-1203.09), while other restrictions merely limit the sentencing court’s

authority to grant probation except in unusual cases in which the interest of justice would

best be served. (See, e.g., § 1203, subd. (e).) Section 462, subdivision (a), prohibits a

grant of probation to defendants who commit residential burglary “[e]xcept in unusual

cases where the interests of justice would best be served if the person is granted




       2   All further rule references are to the California Rules of Court.


                                               4
probation.”3 Defendant acknowledges that he was presumptively ineligible for probation

under this provision.

       When a defendant is presumptively ineligible for probation, a trial court first

decides (employing the criteria set forth in rule 4.413) whether the presumption is

overcome because it involves an unusual case in which the interest of justice would be

served by a grant of probation. (People v. Superior Court (Du) (1992) 5 Cal.App.4th

822, 830.) The court’s ruling on this issue will not be reversed absent an abuse of

discretion. (Id. at p. 831.) If the court determines the case qualifies as an unusual case, it

then considers whether to grant probation employing the criteria set forth under rule

4.414. (Id. at p. 830.) “Under rule 4.413, the existence of any of the listed facts does not

necessarily establish an unusual case; rather, those facts merely ‘may indicate the

existence of an unusual case.’ (Rule 4.413(c), italics added.) This language indicates the

provision ‘is permissive, not mandatory.’ [Citation.] ‘[T]he trial court may but is not

required to find the case unusual if the relevant criterion is met under each of the

subdivisions.’ [Citation.]” (People v. Stuart (2007) 156 Cal.App.4th 165, 178.)

       The appellate court presumes the trial court acted to achieve legitimate sentencing

objectives, and a defendant must therefore clearly show that a sentencing decision was

“so irrational or arbitrary that no reasonable person could agree with it.” (People v.


       3  Section 462 specifically provides: “(a) 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 a burglary of an inhabited dwelling
house . . . . [¶] (b) If the court grants probation under subdivision (a), it shall specify the
reason or reasons for that order on the court record.”


                                              5
Carmony (2004) 33 Cal.4th 367, 377.) This court has no authority to substitute its own

judgment for that of the trial court and must affirm even if reasonable people might

disagree. (People v. Stuart, supra, 156 Cal.App.4th at pp. 178-179.) To establish abuse,

the defendant must show that, under the circumstances, the sentencing decision was

arbitrary, capricious, or “‘exceed[ed] the bounds of reason . . . .’” (People v. Warner

(1978) 20 Cal.3d 678, 683, superseded by statute on another ground as stated in People v.

Douglas (1999) 20 Cal.4th 85, 92, fn. 6.) Defendant bears a heavy burden when

attempting to show an abuse of discretion. (People v. Aubrey (1998) 65 Cal.App.4th 279,

282.)

        Under rule 4.413, facts that may indicate an unusual case include: (1) the

circumstance giving rise to the limitation on probation is substantially less serious than

the circumstances typically present in other cases involving the same probation

limitation, and the defendant has no recent record of committing similar crimes; (2) the

current offense is less serious than a prior felony conviction that is the cause of the

limitation on probation, and the defendant has been free from incarceration for a

substantial time before the current offense; (3) the defendant participated in the crime

under circumstances of great provocation, coercion or duress not amounting to a defense;

(4) the crime was committed because of a mental condition not amounting to a defense,

and there is a high likelihood that the defendant would respond favorably to mental health

care and treatment that would be required as a condition of probation; and (5) the

defendant is youthful and has no significant record of prior criminal offenses.




                                              6
       Courts must construe “unusual cases” and “interests of justice” narrowly so that

the statutory limitations on probation have substantial scope and effect. (People v.

Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1229 (Dorsey) [Fourth Dist.,

Div. Two].) Thus, unusual cases are limited to those matters in which the crime is either

atypical or the offender’s moral blameworthiness is reduced. (Ibid.)

       Citing to cases wherein the victims suffered injuries or were sexually assaulted

during the commission of the residential burglaries, defendant argues that his case is

“much less serious” than other cases involving residential burglaries. Defendant explains

that his burglary was committed at around 8:00 a.m. when no one was home, thus

minimizing the risk of confrontation with residents; that he was not armed with a weapon

and did not physically harm anyone; and that the total loss to the victim was of not great

value. He further argues that he was youthful, only 23 years old when he committed the

instant offense, and that he did not have a significant record of prior criminal convictions.

Defendant also asserts that beginning at a young age, he was not provided with the proper

guidance, and suggests that he had suffered from traumatic events when his mother took

him away from his father and allowed him to drop out of school in the sixth grade; and

that, with the guidance of his paternal uncles, since being released on his own

recognizance he had applied for and enrolled in the U-Turn for Christ program,

completing over 315 hours of volunteer service by August 2012. Defendant made similar

arguments in the court below. The trial court rejected these arguments, finding none of

the relevant probation eligibility criteria applicable in this case, and concluded “[i]t’s

clear . . . that this would be an inappropriate case for probation.”


                                               7
       Following a thorough review of the record, we cannot find that the trial court

abused its discretion in finding defendant was not eligible for probation. While defendant

did not confront or harm or assault a resident during the commission of this residential

burglary, we do not agree that defendant’s conduct here is substantially less serious than

any other residential burglary. (See Dorsey, supra, 50 Cal.App.4th at p. 1229 [unusual

cases must be narrowly construed].) Moreover, the record shows that defendant had a

recent record of committing a similar crime of violence. Defendant stated that he had

served 37 to 38 months in prison for a 60-month sentence imposed following his

conviction for felony grand larceny committed in Nevada in 2007. In regards to that

prior offense, defendant explained that he had stolen a firearm from a residence.

Following his Nevada conviction, defendant had initially been placed on probation for

60 months, but then violated probation and was sentenced to prison for 60 months.

Defendant stated that he had also spent time in custody for possession of a stolen vehicle,

but claimed that charge had been dismissed. In addition, there is a pending receiving

stolen property charge in light of the stolen property found in defendant’s residence at the

time of his arrest in this case. Hence, besides defendant’s conduct being typical of other

types of residential burglaries, defendant had a recent record of committing similar

crimes; defendant’s current offense was just as serious or more serious than his prior

felony conviction; and defendant had not been free from incarceration for a substantial

time before he committed the current offense.

       We acknowledge that defendant can be characterized as being relatively young;

that he presumably had an unstable upbringing; and that he had been provided with


                                             8
guidance and support since being released on his own recognizance in this case.

However, these factors are insufficient in this case to overturn the trial court’s finding

that this was not an unusual case, especially in light of the current offense and relatively

similar and recent past offenses.

       The trial court here properly exercised its discretion in finding that the

presumption against probation eligibility should not be overridden. The trial court was

aware of the factors before it and thoroughly analyzed those factors; and defendant’s trial

counsel fervently argued in favor of probation while methodically examining each factor.

Because exceptions for unusual cases are to be narrowly construed, and because the

record reflects the trial court was aware of the analytical factors before it, we hold that

the trial court did not abuse its discretion in determining defendant’s case was not

unusual. Defendant has not provided relevant authority or facts to support his claim that

his case is unusual or that the court’s sentence was arbitrary or capricious.

       Because we are satisfied that the trial court did not abuse its discretion under rule

4.413 in determining defendant was not eligible for probation, we need not consider

defendant’s arguments pertaining to rule 4.414 that he was a suitable candidate for

probation.4



       4  We note that rule 4.413 contemplates a two-step process where the court must
first evaluate the factors set forth in rule 4.413(c) and determine whether there are
unusual circumstances to overcome the statutory limitation on probation. If the court
makes that determination, then it must still consider the factors set forth in rule 4.414 to
determine if probation should be granted or denied. (Rule 4.413(b); Dorsey, supra,
50 Cal.App.4th at p. 1229; Du, supra, 5 Cal.App.4th at p. 830.) Where, as here, the court
                                                                   [footnote continued on next page]


                                              9
        B.       Correction of Minute Order re Substance Abuse Program

        Defendant contends, and the People correctly concede, that the clerk’s minute

order and abstract of judgment reflecting that he participate in substance abuse

counseling while in prison must be amended. We agree.

        At the sentencing hearing, the trial court ordered defendant to participate in a

counseling or education program having a substance abuse component while in prison “if

he thinks it is necessary.” It appears that the court was merely recommending such a

program. However, the clerk’s minute order and abstract of judgment explicitly order

defendant to participate in substance abuse counseling. The minute order and abstract of

judgment specifically state: “Defendant to participate in a counseling or educational

program having a substance abuse component through the Div. of Adult Institutions

(PC 1203.096).”

        Section 1203.096, subdivision (a), specifically provides that a trial court only

“recommend in writing that the defendant participate in a counseling or education

program having a substance abuse component while imprisoned.” (§ 1203.096, subd. (a),

italics added). Case law also finds that the appropriate authorities need not heed the

recommendation. (People v. Peel (1993) 17 Cal.App.4th 594, 599-600.) It was

appropriate for the trial court to recommend such counseling rather than order it. As




[footnote continued from previous page]
finds that the case was not unusual under rule 4.413, it has no authority to grant
probation.


                                              10
such, we shall order that the minute order and abstract of judgment be modified to clarify

that such participation is recommended, not ordered, by the trial court.

         C.     Correction of Minute Order re Possession of Weapons

         Defendant also contends, and the People aptly concede, that the clerk’s minute

order prohibiting him from possessing a firearm, ammunition or deadly weapon must be

corrected to reflect the court’s oral pronouncement that defendant not possess firearms or

ammunition. We agree.

         At the sentencing hearing, the trial court stated, “as a matter of law under both

federal and state law, the defendant is not allowed to have any firearms or ammunition

for life.” Citing section 12021 and a federal statute, the minute order provided that

defendant “not knowingly own, possess or have under [his] control any firearm, deadly

weapon, ammunition or related paraphernalia for life.” The probation report indicated

that defendant “not knowingly own, possess or have under [his] control any firearm for

life.”

         The rendition of judgment is the oral pronouncement at sentencing. (People v.

Mesa (1975) 14 Cal.3d 466, 471 (Mesa), superseded by statute on other grounds as stated

in People v. Turner (1998) 67 Cal.App.4th 1258, 1267-1268.) Where there is a

discrepancy between the oral pronouncement rendering judgment and the minute order or

the abstract of judgment, the oral pronouncement controls. (Mesa, at p. 471; see also

People v. Mitchell (2001) 26 Cal.4th 181, 185 [abstract of judgment does not control if

different from the trial court’s judgment and may not add to or modify the judgment];

People v. Zackery (2007) 147 Cal.App.4th 380, 385–386 (Zackery) [clerk’s minutes


                                               11
should reflect what occurred at the hearing].) Because the trial court did not orally

pronounce that defendant is prohibited by law from possessing any deadly weapons or

related paraphernalia, we strike that language in the minute order and amend the minute

order to reflect the trial court’s pronouncement. (See Zackery, supra, at p. 385.)

                                            III

                                      DISPOSITION

       The judgment is modified to reflect that substance abuse counseling pursuant to

section 1203.096 is recommended, not ordered. The superior court clerk is directed to

prepare an amended minute order and abstract of judgment to state that substance abuse

counseling is recommended and to omit reference to “deadly weapons or related

paraphernalia” and to forward the amended abstract of judgment to the Department of

Corrections and Rehabilitation. (§§ 1213, 1216.) In all other respects, the judgment is

affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                               RAMIREZ
                                                                                        P. J.
We concur:



MILLER
                          J.



CODRINGTON
                          J.



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