Filed 11/10/14 P. v. Arevalo 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Sutter)



THE PEOPLE,                                                                                  C075052

                   Plaintiff and Respondent,                                   (Super. Ct. No. CRF12-1323)

         v.

MONICA RENEE AREVALO,

                   Defendant and Appellant.




         Following a jury trial, defendant Monica Renee Arevalo was convicted of first
degree residential burglary (Pen. Code, § 459)1 and receiving stolen property (§ 496,
subd. (a)), and sentenced to an aggregate term of two years in state prison. On appeal,
defendant contends she cannot be convicted of both “stealing and receiving the same
property.” Defendant also contends the trial court relied on “improper factors” in
denying her probation. We conclude defendant was properly convicted of both crimes
and any error in denying defendant’s probation was harmless. We affirm the judgment.




1   Undesignated statutory references are to the Penal Code.

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                            PROCEDURAL BACKGROUND2
        Defendant was charged with entering an inhabited dwelling house of another with
the intent to commit theft and/or any felony therein (§ 459), and receiving stolen goods
(§ 496, subd. (a)). After she was found competent to stand trial a jury found defendant
guilty as charged.
        At sentencing, defendant argued that although she was statutorily ineligible for
probation, her case was unusual and the court should grant her probation. The trial court
disagreed, finding the case was not unusual. In reaching its decision, the trial court
found: “there is certainly nothing about the offense that would show that this is an
unusual case. And there is really nothing, as I look at the factors in mitigation submitted
by [defendant] or anywhere else, that would indicate that this is an unusual case.”
        The court then outlined the criteria it considered under California Rules of Court,
rule 4.4143 in reaching its decision. Those factors include that: the crime was carried out
in a professional manner, defendant’s record of criminal activity was increasing in
seriousness, defendant’s ability to comply with probation would be limited due to her
history of substance abuse, emotional injury was inflicted on the victim, defendant was a
danger to others, and defendant had not shown any remorse for her crimes.
        The court also noted the rule 4.414 factors it considered that weighed in favor of
granting defendant probation: defendant’s prior performance on probation was
satisfactory and defendant had expressed a willingness to comply with the terms of
probation. On balance, the trial court concluded, defendant’s case was not unusual. The
trial court then sentenced defendant to an aggregate term of two years in state prison.




2The facts regarding defendant’s crimes are not relevant to the issues on appeal.
Accordingly, we omit them from our opinion.
3   Undesignated rule references are to the California Rules of Court.

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                                      DISCUSSION
                                             I
       On appeal, defendant contends she cannot be convicted of “stealing and receiving
the same property.” Whether defendant can be convicted of stealing and receiving the
same property is irrelevant because she was convicted of burglary (§ 459) and receiving
stolen property (§ 496, subd. (a)) -- not theft. In 1999, the California Supreme Court
ruled the law permitted a defendant to be convicted of burglary as well as receiving the
property he or she stole during those burglaries. (People v. Allen (1999) 21 Cal.4th 846.)
Defendant acknowledges the Supreme Court’s ruling, but argues the ruling needs to be
reconsidered. We disagree. We conclude there was no error.
                                             II
       Defendant also contends the trial court improperly relied on the factors set forth in
rule 4.414 in finding hers was not an unusual case in order to overcome the statutory
limitation on probation. We agree the trial court considered the wrong criteria in
determining whether defendant’s case was unusual. We also agree this was error. We
conclude, however, the error was harmless.
       Defendant was presumptively ineligible for probation, unless hers was an “unusual
case,” because she was convicted of a serious felony. (§ 1170, subd. (h)(3) [first degree
burglary]; § 1192.7, subd. (c)(18).) Rule 4.413(c) lists factors that “may indicate the
existence of an unusual case” to overcome the statutory presumption against probation.
They include facts limiting defendant’s culpability, such as whether the defendant is
youthful or aged and has no significant record of prior criminal offenses.
(Rule 4.413(c)(2)(C).) “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.’ [Citation.]” (People v. Stuart (2007) 156 Cal.App.4th
165, 178, italics omitted.) If a trial court determines the presumption against probation
has been overcome, then the court evaluates whether to grant probation under rule 4.414,

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which lists criteria affecting that decision. (People v. Stuart, at p. 178; People v. Superior
Court (Du) (1992) 5 Cal.App.4th 822, 830.)
       Here, in reaching its decision that defendant’s case was not unusual, the trial court
failed to consider the factors in rule 4.413(c). Instead, the trial court went directly to the
more general criteria for determining whether to grant probation listed in rule 4.414. This
was error; however, it was error that inured to defendant’s benefit because the court
considered criteria it should not have considered unless and until the court found
defendant’s case was unusual. The error was, therefore, harmless. Moreover, the trial
court’s consideration of the rule 4.414 criteria and resulting decision to deny probation,
unequivocally reveal that even if the trial court found defendant’s case “unusual,” the
court still would not have granted probation.
                                       DISPOSITION
       The judgment is affirmed.



                                              BLEASE                     , Acting P. J.


We concur:


          MAURO                     , J.


          HOCH                      , J.




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