Filed 6/14/16 P. v. Wilcox 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                                                  C079721

                   Plaintiff and Respondent,                                    (Super. Ct. No. CM042962)

         v.

JASON THOMAS WILCOX,

                   Defendant and Appellant.




         Defendant Jason Thomas Wilcox pleaded no contest to receipt of stolen property
having a value exceeding $950 (Pen. Code, § 496, subd. (a)),1 and the trial court imposed
a two-year middle term. On appeal, defendant argues the court abused its discretion in
denying probation and a split term. We disagree and affirm.
                                               I. BACKGROUND
         In April 2015, defendant was discovered with a cache of stolen items taken from a
stolen car. These items included a GPS navigation device, a digital camera, an MP3



1   Undesignated statutory references are to the Penal Code.

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player, sunglasses, clothing, and other equipment. He pleaded no contest to receiving
stolen property with a value over $950. (§ 496, subd. (a).) A separate count for second
degree burglary of a vehicle was dismissed with a Harvey waiver.2
        Defendant had three prior convictions. In 2001, he was convicted in Washington
State of “possession without a prescription” of marijuana, a felony. In 2013, he was
convicted in Oregon of fourth degree assault, a felony. And in 2014, he was convicted in
California of second degree burglary, a misdemeanor.
        When he committed his current offense, he was on probation in both Oregon and
California. His Oregon probation officer reported defendant had not complied with the
terms and conditions of his probation. Specifically, when he left Oregon for California,
he failed to notify his probation officer. He had also failed to report to probation several
times and missed court dates.
        At his sentencing in this case, defendant requested probation and asked to serve it
in Oregon, where he was receiving mental health treatment.
        In denying probation, the trial court noted: “I think it’s ironic that he absconded
from probation in Oregon and wants to be placed on probation here and do it in Oregon.”
The court then found defendant statutorily ineligible for probation: “He is eligible only
under [section ]1203[ subdivision](e)(4), unusual circumstances.” But the court
continued: “Even if he were not statutor[ily] ineligible, probation would be denied based
upon defendant’s prior record of criminal conduct, indicating a pattern of regular criminal
conduct. Again, he was on probation in Oregon on a felony [domestic violence] case
. . . . [¶] . . . In Mendocino, he’s also on probation on a burglary case.”
        The court then imposed a two-year middle term. It noted several factors in
aggravation and none in mitigation: “[H]is convictions as an adult are numerous. He has




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

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served a prior prison term. He was on probation at the time it was committed. I can
identify no circumstances in mitigation.”
         The court continued, “and for the same reason under [California Rules of Court,
rule] 4.415, the Rule, he’ll be on supervised probation in Oregon, and, therefore, the
Court is going to deny the split sentence.” 3
                                         II. DISCUSSION
A.       The Trial Court Acted Within its Discretion in Denying Probation
         Defendant contends the trial court abused its discretion in denying probation. He
points out that the court was mistaken when it concluded he was statutorily ineligible for
probation, a point on which the People agree. And defendant argues the court relied on
several erroneous factors: (1) defendant had served a prior prison term; (2) there were no
circumstances in mitigation; and (3) defendant’s “convictions as an adult are numerous.”
We conclude that probation was properly denied.
         “ ‘A denial or a grant of probation generally rests within the broad discretion of
the trial court and will not be disturbed on appeal except on a showing that the court
exercised its discretion in an arbitrary or capricious manner.’ [Citation.]” (People v.
Downey (2000) 82 Cal.App.4th 899, 909.) A defendant bears a heavy burden to show
abuse of discretion in a denial of probation. (People v. Brown (1969) 271 Cal.App.2d
391, 396.) An appellate court should only interfere in “ ‘a very extreme case.’ ” (People
v. Rodriguez (1990) 51 Cal.3d 437, 443.) Here, the trial court acted within its discretion.
         The trial court’s mistaken belief that defendant was statutorily ineligible was
harmless. Section 1203 renders a defendant ineligible for probation (absent unusual
circumstances) if he has been twice previously convicted of a felony in California, or in
another state if that offense would be punishable as a felony in California. (§ 1203, subd.




3    Undesignated rule references are to the California Rules of Court.

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(e)(4).) One of defendant’s two prior felonies was for possession of marijuana in
Washington State, in 2001. But in California in 2001, that offense would have been
punishable as a misdemeanor. (See Health & Saf. Code, § 11357, subd. (c); Stats. 1983,
ch. 434, § 1.5, p. 1721, operative Jan. 1, 1984.) Thus, as the People concede, defendant
was not statutorily ineligible for probation. That error was, nevertheless, harmless as the
trial court made abundantly clear: “Even if he were not statutor[ily] ineligible, probation
would be denied based upon defendant’s prior record . . . .”
       Similarly, the trial court’s misstatement that defendant “has served a prior prison
term” was harmless. Defendant has not, in fact, served a prison term (though he served
jail terms in 2001 and 2014). The misstatement was offered in support of imposing a
two-year middle term—which defendant does not challenge on appeal. And even if the
trial court had relied on that misstatement in denying probation, we could not see the
error affecting the outcome in light of defendant’s prior criminal history, two current
probation terms, and his poor performance on probation.4 (See People v. Downey, supra,
82 Cal.App.4th at p. 917 [trial court’s reliance on an improper sentencing consideration is
harmless if there is no reasonable probability that a more favorable result would have
occurred absent the error].)
       The finding of “no circumstances in mitigation,” did not render the exercise of
discretion arbitrary or capricious. Defendant argues that his current offense was not more
serious than other instances of the same crime. He argues that he did not use a weapon,
he did not demonstrate sophistication or professionalism in committing it, and he showed
remorse and admitted guilt at an early stage.5 He also claims that he did not prey on a


4For the same reason, had defendant challenged imposition of the middle term, we
would find no merit.
5 Defendant, however, told probation someone else took the goods from the victim’s car.
He claims he bought some of the stolen goods for $5 from someone, without knowing
they were stolen. And that someone, without defendant knowing, put the remainder of

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particularly vulnerable victim, and the victim did not suffer monetary loss. First, the trial
court’s statement that it could “identify no circumstances in mitigation” was offered in
support of imposing the middle term—not denying probation. And second, those
putative factors defendant identifies hardly push the needle in terms of rendering the
exercise of discretion arbitrary or capricious.6 (See People v. Ramirez (2006)
143 Cal.App.4th 1512, 1530-1531 [“even if there were several mitigating factors that
might weigh in favor of probation, this does not necessarily mean that the trial court
abused its discretion in deciding against granting probation”].)
       Finally, we find no merit in defendant’s challenge to the trial court’s
characterization of his past three convictions as “numerous.”7 (See People v. Searle
(1989) 213 Cal.App.3d 1091, 1098 [finding three convictions “numerous” within the
meaning of former rule 421(b)(2) (now rule 4.421(b)(2))].)
       Thus, the record supports the trial court’s exercise of discretion in denying
probation.
B.     The Trial Court Acted Within its Discretion in Imposing a Non-Split Sentence
       Defendant next contends the trial court erred in evaluating the criteria for a split
sentence. We disagree.
       A court shall “suspend execution of a concluding portion of the term” unless it
finds, “in the interests of justice,” a split sentence is not appropriate. (§ 1170, subd.


the stolen goods in the trunk of defendant’s girlfriend’s car, where police eventually
discovered them.
6Many of defendant’s proffered factors (most taken from rule 4.414) would be better
characterized as the absence of aggravation rather than a factor in mitigation.
7  Defendant also asserts that his 2001 conviction for marijuana possession is “largely
irrelevant.” Evolving attitudes towards marijuana in Washington do not change the fact
that he violated the law in 2001. Moreover, the possession of marijuana offense
defendant was convicted of is still a misdemeanor in California. (See Health & Saf.
Code, § 11357, subd. (c).)

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(h)(5)(A); rule 4.415(a).) In finding a split sentence inappropriate, the court must base its
determination on “factors that are specific to a particular case or defendant.” (Rule
4.415(b).) A court may consider factors including: (1) “the balance of custody exposure
available after imposition of presentence custody credits” (id. at (b)(1)); (2) “[t]he
defendant’s present status on probation” (id. at (b)(2)); (3) the defendant’s “lack of need
for treatment or supervision upon release” (id. at (b)(3)); and (4) “[w]hether the nature,
seriousness, or circumstances of the case or the defendant’s past performance on
supervision substantially outweigh the benefits of supervision in promoting public safety”
(id. at (b)(4)). The court must state reasons for denying a split term. (Id. at (d).)
       Defendant argues the court failed to consider his balance of custody exposure after
presentence credits, as well as factors indicating a lack of need for treatment. He adds
that the record does not support a finding that the benefits of supervision were
outweighed. Defendant also questions the court’s conclusion that he could go back to
supervised probation in Oregon. We are not persuaded.
       The trial court acted within its discretion in denying a split term. The court
referenced “the same reason” offered for imposing the middle term. This included his
past convictions and the fact that he was unsuccessfully serving two separate grants of
probation when he committed the instant offense. These factors, specific to defendant’s
case, squarely supported denying a split term, and defendant’s proffered factors do not
render the exercise of discretion arbitrary or capricious. (See People v. Stuckey (2009)
175 Cal.App.4th 898, 916 [“What the interests of justice require in a particular case
constitutes a question uniquely addressed to the broad judicial discretion of the trial
court”].)




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                          III. DISPOSITION
We affirm.


                                          /S/

                                     RENNER, J.



We concur:



/S/

NICHOLSON, Acting P. J.



/S/

MURRAY, J.




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