Filed 6/26/13 P. v. Caceres CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G046748

         v.                                                            (Super. Ct. No. 11CF2343)

JOSE NAPOLEON CACERES,                                                 OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Walter P.

Schwarm, Judge. Affirmed.
                   Gail Ganaja, 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, James D. Dutton and
Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
              Jose Napoleon Caceres pleaded guilty to possession of methamphetamine,
and a jury later convicted him of first degree burglary. Caceres contends the trial court
abused its discretion in denying his probation request and sentencing him to prison. For
the reasons expressed below, we affirm.
                                             I
                       FACTUAL AND PROCEDURAL BACKGROUND
              In August 2011, Erick Flores rented a room on Raitt Street in Santa Ana
from Caceres’s aunt Sonia. Caceres lived in a shed near the garage. On the morning of
August 23, Flores heard “the sound of the lock” and believed someone “peeked through
the door.” He walked to the bathroom and encountered Caceres and another Hispanic
male near the kitchen area about 10 feet from his room. Caceres asked Flores if knew

where Sonia’s husband lived. Flores replied he did not, and left for work around 7:30
a.m., locking his door. When Flores returned home from work around 6:00 p.m. he
discovered someone had forced open his bedroom door and taken his television and

laptop computer. He later confronted Caceres about the theft. Caceres denied the theft,
but claimed he “knew where the things were.”
              The next morning Officer Joe Castellanos questioned Caceres about the
burglary. Caceres told the officer “Memo” or “Martin” forced open the door into
Flores’s room and stole the television and computer. Martin then contacted “El Huero”,
who purchased the items for $300. Caceres later acknowledged he was “Martin”
Alcantar and it was a false identity he used for work. He directed the officers to a
residence on Garfield, where they recovered the stolen property.
              Following a trial in March 2012, the jury convicted Caceres of first degree

burglary. Caceres waived preparation of a probation and sentencing report. The trial



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court denied probation and sentenced Caceres to the mitigated prison term of two years
for burglary and imposed a concurrent term for possession of methamphetamine.
                                              II
                                        DISCUSSION
The Trial Court Did Not Abuse Its Discretion in Denying Probation

              Caceres contends the trial court abused its discretion in sentencing him to
state prison because his methamphetamine addiction constituted an unusual and
mitigating circumstance requiring treatment while on probation. We disagree. There is
no basis in the record to overturn the trial court’s sentencing decision.
              We review a trial court’s decision to deny probation for abuse of discretion.
(People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831 (Du).) An abuse of
discretion is shown only when the court’s decision exceeds the bounds of reason.
(People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1225.) The burden is
on the appellant to demonstrate the trial court’s decision was arbitrary and irrational.

(Du, id. at p. 831.) Caceres falls woefully short of this standard.
              The trial court correctly noted Caceres was presumptively ineligible for
probation. Penal Code section 462 provides that “(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 . . . or the inhabited portion of any other building.” Under these circumstances, the
court must evaluate the criteria in California Rules of Court, rule 4.413 (c), to determine
whether the statutory limitation on probation is overcome; and if it is, the court should
then apply the criteria in rule 4.414 to decide whether to grant probation. Subdivision (c)
lists several factors that would allow the court to deviate from the presumption and grant



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probation. These include whether “[t]he fact or circumstance giving rise to the limitation
on probation is, in this case, 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 or crimes of violence;” whether the defendant
participated in the crime under circumstances of great provocation, coercion, or duress

not amounting to a defense, and the defendant has no recent record of committing violent
crimes; whether the defendant committed the crime because of a mental condition not
amounting to a defense, and there exists a high likelihood the defendant would respond

favorably to mental health care and treatment as a condition of probation; whether the
defendant’s age presents a mitigating factor, and whether the defendant has no significant
record of prior criminal offenses. (Cal. Rules of Court, rule 4.413(c).)

              The trial court concluded Caceres’s burglary was no “less serious” than
other residential burglaries, no circumstances showed Caceres committed the crime
because of great provocation, coercion, or duress not amounting to a defense, he did not

have a mental condition, and at age 28 or 29 Caceres was “neither particularly youthful or
aged.”
              The trial court also stated it would not grant Caceres probation even if he
demonstrated his probation eligibility. In reaching this decision, the court followed the
criteria listed in California Rules of Court, rule 4.414. Rule 4.414 directs the court to
consider certain facts relating to the crime and the defendants.
              The trial court cited various factors in mitigation, but found the victim was
“more vulnerable” and Caceres took advantage of a position of trust because the victim
was his aunt’s tenant, who “could reasonably expect that a [housemate] . . . would not




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steal his property.” The court also noted Caceres had prior misdemeanor convictions for
domestic violence, and was on probation when he committed the burglary.
              The court considered Caceres’s argument he had never spent more than
10 days in jail for his prior offenses, Caceres helped locate the victim’s property, and the
victim seemed reluctant to prosecute. The court heard the mother of Caceres’s four

children declare Caceres was a good father and had helped them financially, and heard
Caceres’s statement at sentencing he was hard worker, and a person who “can learn from
his own mistakes.” The court observed that while Caceres helped recover the property,

he failed to “take responsibility for his role in the crime.”
              Caceres contends his methamphetamine addiction constituted a mental
condition amenable to treatment while on probation and his condition therefore was an

unusual and mitigating circumstance making him eligible for probation. But Caceres
failed to present evidence he would respond favorably to treatment. Nor was there
evidence showing the extent of Caceres’s drug problem and that it partially excused his
decision to burglarize the victim’s room. Courts have rejected the notion drug abuse or
addiction is mitigating when it does not reduce the defendant’s lucidity or ability to act
with planning or sophistication at the time of the crime. (People v. Reyes (1987)
195 Cal.App.3d 957, 961; People v. Reid (1982) 133 Cal.App.3d 354, 370–371; People v.
Bejarano (1981) 114 Cal.App.3d 693, 706–708; People v. Lambeth (1980)
112 Cal.App.3d 495, 500.)
              Caceres’s reliance on People v. Jordan (1986) 42 Cal.3d 308, 314-315 is
distinguishable. There, the Supreme Court upheld the trial court’s exercise of discretion
striking four prison term enhancements, noting that alcoholism may be a mitigating factor

at sentencing. (See People v. Simpson (1979) 90 Cal.App.3d 919, 927.) As noted above,



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Caceres did not raise methamphetamine addiction as a mitigating factor in the trial court
and nothing suggests he was “disabled” by drug addiction. The trial court therefore did
not abuse its discretion in concluding Caceres did not have a “mental condition” when it
denied probation. (See also People v. Regalado (1980) 108 Cal.App.3d 531, 538
[defendant’s “mere assertion” he suffers from a mental or physical condition significantly

reducing culpability was insufficient to establish mitigation].)
              Caceres emphasizes he helped the police recover the victim’s property the
day after the burglary, which “seemed to have the effect of lessening the monetary and

emotional harm that the victim suffered.” He argues these facts “weigh[ed] against” the
trial court’s finding the crime fit the profile of a typical residential burglary and that the
victim was particularly vulnerable. Caceres also notes he expressed remorse by

admitting his mistake but complains the court discounted his contrition and “seemed to
ignore the fact [he] provided financial support for his four children” and the adverse
impact imprisonment would have on his dependents.

       True, these factors may have “weighed against” the trial court’s decision, but they
do not demonstrate an arbitrary or irrational conclusion. Indeed, the trial court’s
reasoning is amply supported by the record, and under these circumstances we may not
reweigh the pertinent factors. (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311
[“‘In reviewing [a trial court’s determination whether to grant or deny probation], it is
not’” the appellate court’s function to substitute its judgment for that of the trial court; its
function is to determine whether the trial court’s order is arbitrary or capricious or
exceeds the bounds of reason considering all the facts and circumstances.])1 We discern
no abuse of discretion.

       1
            Caceres mistakenly claims the court erred in finding the crime was
committed with sophistication or professionalism, but the court at sentencing stated

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                                            III
                                       DISPOSITION
              The judgment is affirmed.




                                                  ARONSON, J.

WE CONCUR:



O’LEARY, P. J.



RYLAARSDAM, J.




“[t]here is nothing in the manner of the burglary that shows any sophistication [or]
professionalism.”

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