Filed 8/30/16 P. v. Gagush 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Butte)
                                                            ----



THE PEOPLE,

                   Plaintiff and Respondent,                                                 C079825

         v.                                                                     (Super. Ct. No. CM042617)

CHRISTOPHER WALTER GAUGUSH,

                   Defendant and Appellant.




         Defendant Christopher Walter Gaugush pleaded no contest to possession of a
controlled substance in jail. The trial court sentenced him to the upper term of four years
in prison. Defendant now contends the trial court abused its discretion in imposing the
upper term because it failed to consider numerous mitigating factors. Finding no merit in
defendant’s arguments, we will affirm the judgment.
                                                  BACKGROUND
         During a jail contraband search, jail officials found defendant in possession of
tramadol pills, marijuana and tobacco. Defendant initially lied about how he obtained the
items but eventually admitted bringing the contraband into jail with him when he was



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booked two days earlier. He ultimately pleaded no contest to possessing a controlled
substance in jail (Pen. Code, § 4573.6, subd. (a)) in exchange for the dismissal with a
Harvey1 waiver of prior prison term allegations.
       Defendant represented himself at sentencing. The trial court noted it had
considered “quite a bit of material,” including the probation report, a letter from
defendant, and a letter written in support of defendant. The trial court explained it was
inclined to follow probation’s recommendation and impose the upper term.
       Defendant argued for the middle term, explaining his father was ill and he wished
to return to him as soon as possible. Defendant also said he suffered from a drug
addiction and he had enrolled at Butte College. He attributed his parole violations to
Proposition 83. As to his current offense, he explained he had in fact agreed to hold the
drugs for someone else, but added: “I totally take my responsibility in the matter.”
       The prosecutor pointed out that although defendant now claimed he held the drugs
for someone else, he previously admitted bringing the drugs with him into jail. The
prosecutor said that since the 1990’s there was no time when defendant has not been on
probation or in custody, describing him as an “untreated sex offender” who was “at high
risk of reoffense.”
       Defendant responded that it had been 12 years since his sex offense.
       The trial court imposed the upper term of four years, noting defendant’s record
indicated a pattern of regular criminal conduct. The trial court said it appreciated
defendant’s comments but the following factors warranted imposing the upper term:
“Your prior convictions as an adult and sustained petitions in juvenile delinquency are
numerous; you have served two prior prison terms; you were on parole when this crime




1 See People v. Harvey (1979) 25 Cal.3d 754.


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was committed; and your prior performance on probation and parole was unsatisfactory.”
The trial court added: “No factors in mitigation are noted.”
                                        DISCUSSION
       Defendant contends the trial court abused its discretion in imposing the upper term
because it failed to consider numerous mitigating factors, namely (1) that when jail
officials found him with contraband, defendant immediately admitted possessing it and
bringing it into jail; (2) he pled no contest early in the proceeding, three weeks after his
arrest; (3) he has struggled with addiction his whole life and would benefit from
extensive rehabilitation rather than prison; (4) his current crime was victimless; (5) his
father was ill; (6) defendant was homeless; (7) he had enrolled at Butte College; and
(8) an officer who contributed a comment to the probation report noted that while
defendant had originally been untruthful, he ultimately acknowledged fault and expressed
remorse for bringing contraband into jail.
       The People respond that defendant has forfeited his contention by failing to assert
it in the trial court and by failing to object when the trial court said there were no
mitigating factors. We will address the merits and conclude the trial court did not abuse
its discretion.
       A trial court’s decision to impose the upper term is subject to review for abuse of
discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) An upper term may be
based on “any aggravating circumstance” the court deems significant or any other
circumstance, even if not enumerated in California Rules of Court, rule 4.421, so long as
it is “ ‘reasonably related to the decision being made.’ ” (Sandoval, at p. 848, quoting
Cal. Rules of Court, rule 4.408(a).) A court abuses its discretion if it relies on
circumstances not relevant to the decision or that “constitute an improper basis for
decision.” (Sandoval, at p. 847.)
       A challenge to the sentence must show the decision was irrational or arbitrary.
(People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978; accord, People v.

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Lai (2006) 138 Cal.App.4th 1227, 1258-1259.) Absent 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.’ ” (Alvarez, at pp. 977-978.)
       Here, the trial court relied on multiple aggravating factors in imposing the upper
term: defendant’s numerous prior convictions and sustained juvenile delinquency
petitions, his two prior prison terms, his parole status when committing the current crime,
and his unsatisfactory probation and parole performance. These factors supported the
upper term. (See People v. Black (2007) 41 Cal.4th 799, 815 [the presence of one
aggravating circumstance permits a trial court to impose an upper term].)
       Regarding the trial court’s statement that there were no mitigating factors, the
“trial court may ‘minimize or even entirely disregard mitigating factors without stating its
reasons.’ ” (People v. Lai, supra, 138 Cal.App.4th at p. 1258, quoting People v. Salazar
(1983) 144 Cal.App.3d 799, 813.) Here, there were possible reasons for the trial court to
minimize or disregard the information asserted by defendant. Defendant claims to have
immediately acknowledged wrongdoing, but he initially lied to jail officials. He
eventually admitted bringing the drugs into jail, but then at sentencing maintained that he
held the drugs for someone else. The trial court could also decline to accept defendant’s
characterization of drug possession in jail as a victimless crime, or it could conclude that
the lack of a victim simply meant the absence of an additional aggravating factor rather
than a factor in mitigation. Similarly, the trial court could have concluded that
defendant’s ill father, his homelessness and his enrollment in college did not lessen
defendant’s culpability. (Compare Cal. Rules of Court, rule 4.423 [factors in mitigation
include: playing a passive or minor role in the crime; the crime was committed under
great provocation; defendant was coerced; defendant exercised caution to avoid harm to
others; defendant was motivated by a desire to provide for his family or self].)



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       In any event, the record shows the trial court considered “quite a bit of material,”
including the probation report, a letter from defendant, and a letter written in support of
defendant. The trial court also heard (and said it appreciated) defendant’s verbal
comments at the hearing.
       The factors in aggravation support the upper term and none of defendant’s
proffered mitigating factors render the imposition of the upper term irrational or arbitrary.
The trial court did not abuse its discretion.

                                       DISPOSITION

       The judgment is affirmed.



                                                       /S/
                                                    MAURO, J.



We concur:



    /S/
HULL, Acting P. J.



   /S/
MURRAY, J.




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