Filed 10/15/13 P. v. Reynolds CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A137792
v.
JAMES D. REYNOLDS,                                                   (Sonoma County
                                                                     Super. Ct. No. SCR-616010)
         Defendant and Appellant.


         Appellant James D. Reynolds entered pleas of no contest to a felony violation of
Penal Code section 646.9,subdivision (a),1 stalking, and to a misdemeanor violation of
section 148, subdivision (a)(1), resisting, delaying or obstructing a police officer.
Reynolds was sentenced to the upper term of three years in state prison on the felony
charge, with a concurrent term of one year in county jail on the misdemeanor. At the
time of sentencing, the court “strongly encourage[d] the Department of Corrections [and
Rehabilitation] to immediately assess Mr. Reynolds for mental health treatment within
the prison system” and to assess Reynolds’s qualification as a mentally disordered
offender (MDO).2
         Reynolds contends the court’s statement reflects that the “primary reason” for the
prison sentence was to make him eligible for MDO status, and that the trial court abused

         1
             All statutory references are to the Penal Code unless otherwise indicated.
         2
        The MDO law mandates treatment for prison inmates with severe mental
disorders who meet certain specified criteria (see § 2962) and can result in involuntary
civil commitments for treatment beyond the term of imprisonment (§§ 2970, 2972).


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its sentencing discretion in “use of the hope [Reynolds] would be found an MDO to deny
probation and send [him] to prison.” We disagree with Reynolds’s characterization of the
trial court record and find no abuse of discretion. We therefore affirm.
                                   I.     BACKGROUND
       Reynolds does not challenge his conviction. We therefore address the underlying
facts of the offenses only as they are relevant to the court’s sentencing choices.
       On March 11, 2012, Sonoma County Sheriff’s deputies were called when
Reynolds threatened to kill his former employer, J.F. When the deputies arrived,
Reynolds had a large knife sticking out of his back pocket, and was making threats to kill
J.F. Reynolds refused the deputies’ orders to lie on the ground and pulled out the knife,
waived it in the air, and continued his threats. Reynolds tossed the knife in the direction
of one of the officers and was taken into custody. Reynolds, who was known to the
deputies as an extreme alcoholic, had no odor of alcohol about him at the time, but
appeared delusional. Reynolds accused the officers of being in a conspiracy with Satan,
accused the victim of molesting his daughter, and talked about invisible people standing
next to the deputy and hiding in trees. Reynolds had previously threatened J.F.’s life in
October 2011. A mental health hold under Welfare and Institutions Code section 5150
was placed on Reynolds.
       On March 17, 2012, Reynolds told J.F.’s girlfriend that he was going to go to
J.F.’s house and kill J.F. When a sheriff’s deputy went to Reynolds’s home, Reynolds
had been drinking, a violation of the terms of his probation on another matter. Reynolds
denied threatening J.F., but said that J.F. was a child molester who was stealing energy
from the ground and God, and that J.F. had stolen Reynolds’s 62 children. When arrested
for the probation violation, Reynolds told the deputy that the next time he was arrested, it
would be for killing J.F.
       Reynolds was interviewed while in custody about the allegations that his daughter
had been sexually molested. The interviewing officer said that Reynolds appeared
“fixated” on J.F., that Reynolds’s thoughts were disorganized and “[h]is behavior was . . .
alarming.”


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       On March 20, 2012, Reynolds was charged by felony complaint with threatening
to kill J.F. (§ 422.) On March 26, defense counsel declared a doubt about Reynolds’s
competence (§ 1368), and criminal proceedings were suspended. The psychiatric
evaluation report found that Reynolds was not competent to assist in his defense. The
examining psychiatrist found Reynolds delusional, without insight into his condition, and
refusing medication. On May 7, the court found Reynolds incompetent and ordered him
detained in the Napa State Hospital. On August 31, the court found that Reynolds’s
competency had been restored and criminal proceedings were reinstated. A first
amended felony complaint was filed charging Reynolds with two counts of criminal
threats to commit a crime which would result in death and great bodily injury to J.F.
(§ 422; counts 1, 2), threatening violence upon police officers (§ 69; counts 3, 5), and
resisting, delaying or obstructing a police officer (§ 148, subd. (a)(1); counts 4, 6).
       On November 1, 2012, the complaint was amended to add the stalking charge
(§ 646.9, subd. (a); count 7), and Reynolds entered pleas of no contest to counts 6 and 7
and admitted a probation violation. As part of the plea agreement, the court agreed to
dismiss the remaining counts in the amended complaint, as well as charges then pending
in other cases. No promises were made as to the sentence that would be imposed.
       At a sentencing hearing on January 28, 2013, the district attorney asked the court
to impose the three-year aggravated term because Reynolds “presents[s] an imminent risk
of very realistic fatal harm to the victim” and that “prison is really the only viable way to
potential lifelong care and treatment, psychiatric treatment, for [Reynolds] . . . .”
Reynold’s counsel argued for a probationary sentence. Defense counsel contended that
“it is by no means assured that Mr. Reynolds would be deemed an MDO in terms of
going into the prison system,” and said that “to place him into prison on the hope that he
would be deemed MDO also is a pretty drastic remedy for Mr. Reynolds in terms of if he
is not deemed MDO . . . .”
       The court noted that it had reviewed the probation presentencing report, a
probation supplemental report, and a report from Napa State Hospital. The court denied
probation, expressing its concern for long-term protection of the victim and indicating


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that it had no confidence that Reynolds would comply with conditions of probation. The
court again noted its review of the record and reports and its concern with the fact that
Reynolds “has a very long history of alcohol related crimes, and he’s had some treatment
voluntarily in the past and yet has found himself here.” The court sentenced Reynolds to
the three-year upper term on count 7, listing the aggravating sentencing factors as: “One,
he does have a long history of offenses related to alcohol and substance abuse. He was
on probation at the time that this incident occurred. Also the Court finds most
compelling that he was taking actions really in furtherance of his threats at one of the
times that he was contacted by law enforcement, and quite frankly, Mr. Reynolds, I think
you are quite fortunate that you didn’t end up being shot by law enforcement on that
night.” The court also expressed its concern with Reynolds’s “lack of incite [sic] about
the level of both his substance abuse and his mental health as well, and I think both of
those things combined really does cause me to be greatly concerned about his level of
dangerousness . . . .” The court went on to “strongly encourage the Department of
Corrections [and Rehabilitation] to immediately assess Mr. Reynolds for mental health
treatment within the prison system and that possibly he be deemed an MDO if he
qualifies.” The court explained that “I think that would be the most beneficial for
Mr. Reynolds in the long term, and I hope that he is provided the services that are
available to him through that process because I am extremely concerned that without
ongoing and long-term mental health treatment, if he doesn’t remain in remission and off
of substances, that he will pose a danger to both himself and to the community.” The
court imposed a concurrent one-year term on count 6 and awarded Reynolds credit for
543 days served.
       Reynolds filed a timely notice of appeal, challenging only his sentence.
                                    II.    DISCUSSION
       “A sentencing court enjoys broad discretion in determining whether to grant or
deny probation. A defendant who is denied probation bears a heavy burden to show the
trial court has abused its discretion. [Citations.]” (People v. Mehserle (2012)
206 Cal.App.4th 1125, 1157, citing inter alia People v. Carbajal (1995) 10 Cal.4th 1114,


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1120.) “In reviewing for abuse of discretion, we are guided by two fundamental
precepts. First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that
the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a
showing, the trial court is presumed to have acted to achieve the legitimate sentencing
objectives, and its discretionary determination to impose a particular sentence will not be
set aside on review.” ’ [Citations.] Second, a ‘ “decision will not be reversed merely
because reasonable people might disagree. ‘An appellate tribunal is neither authorized
nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’
[Citations.] Taken together, these precepts establish that a trial court does not abuse its
discretion unless its decision is so irrational or arbitrary that no reasonable person could
agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 376–377.) “ ‘[A] denial of
probation after consideration of the application of its merits is almost invariably upheld.
[Citations.]’ (3 Witkin & Epstein, Cal. Criminal Law [(3d ed. 2000)] Punishment, § 532,
pp. 718–719.)” (People v. Mehserle, at p. 1157.)
       Reynolds argues that the trial court abused its discretion in sentencing him to state
prison on the “hope” that he would be treated as an MDO. We find no abuse of the
court’s considerable discretion.
A.     Forfeiture
       The Attorney General first contends that Reynolds has forfeited his challenge to
his sentence by failure to object to the court’s statement “strongly encourag[ing]”
assessment of Reynolds by the Department of Corrections and Rehabilitation for mental
health treatment, and by failing to object to the aggravating factors relied upon by the
trial court in support of the upper term. “[C]omplaints about the manner in which the
trial court exercises its sentencing discretion and articulates its supporting reasons cannot
be raised for the first time on appeal” (People v. Scott (1994) 9 Cal.4th 331, 356),
because “[r]outine defects in the court’s statement of reasons are easily prevented and
corrected if called to the court’s attention” (id. at p. 353).
       Were Reynolds specifically challenging the court’s choice of the aggravated three-
year term, we would agree that such a claim would be forfeited. But Reynolds makes no


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such argument.3 Instead, he contests only the court’s decision to deny him probation, and
contends that the court relied upon an improper factor in doing so. It is questionable
whether Reynolds has preserved his claim that the court relied upon an improper factor in
denial of probation, since he made no specific objection to any of the reasons set forth by
the court as the bases for its decision. However, even if we were to assume that his
generalized argument for probation, and that MDO treatment in prison was “by no means
assured,” was sufficient to preserve the more narrow issue for appeal, we would reject it
on the merits.
B.     Denial of Probation
       Reynolds insists that there “should be no question the primary reason the court
sentenced him to prison was to make him eligible for MDO status.” We first disagree
with the foundational premise upon which Reynolds’s arguments rest, and we disagree
with his conclusion.
       “Where [a] defendant is eligible for probation, the court must state its reasons for
selecting a prison commitment as its sentencing choice. This obligation to state reasons
is satisfied by an explanation of why probation has been rejected in favor of
imprisonment. [Citations.]” (People v. Leung (1992) 5 Cal.App.4th 482, 506.) “For
instance, the ‘ “nature and seriousness of the offense” ’ is sufficient. [Citation.]” (People
v. Mehserle, supra, 206 Cal.App.4th at p. 1158.)
       “Criteria affecting the decision to grant or deny probation include facts relating to
the crime and facts relating to the defendant. . . .” (Cal. Rules of Court, rule 4.414;
People v. Weaver (2007) 149 Cal.App.4th 1301, 1312.) “In deciding whether to grant or
deny probation, a trial court may also consider additional criteria provided those criteria




       3
        Such an argument would, in any event fail, on the merits. The court articulated
reasons for the aggravated term that had nothing to do with possible MDO treatment.
“The court’s discretion to identify aggravating circumstances is otherwise limited only by
the requirement that they be ‘reasonably related to the decision being made.’ (Cal. Rules
of Court, rule 4.408(a).)” (People v. Sandoval (2007) 41 Cal.4th 825, 848, fn. omitted.)


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are reasonably related to that decision. ([Cal. Rules of Court], [r]ule 4.408(a).)[4] . . .
Unless the record affirmatively shows otherwise, a trial court is deemed to have
considered all relevant criteria in deciding whether to grant or deny probation or in
making any other discretionary sentencing choice. ([Cal. Rules of Court], [r]ule 4.409.)”
(People v. Weaver, at p. 1313.)
       The record here reflects that the court carefully considered the facts relating to
both the offenses committed by Reynolds and his demonstrated substance abuse and
mental health issues. Despite Reynolds’s insistence otherwise, nothing in the record
reflects that the court’s “primary reason” in rejecting probation was the possibility of
MDO treatment in state prison. Rather, the court urged MDO evaluation based on
Reynolds’s well-documented history of delusional behavior, compounded by substance
abuse, and the resulting danger that Reynolds presented to the community and to himself
if untreated. Reynolds fails to demonstrate that the court’s decision to deny probation
was limited to any single factor, and does not meet his heavy burden to show that
decision was irrational or arbitrary.
       Moreover, Reynolds fails to carry his appellate burden to show the error allegedly
made by the court was prejudicial. “When a trial court has given both proper and
improper reasons for a sentence choice, a reviewing court will set aside the sentence only
if it is reasonably probable that the trial court would have chosen a lesser sentence had it
known that some of its reasons were improper. [Citation.]” (People v. Price (1991)
1 Cal.4th 324, 492.) Reynolds contends, without any cited support in the record, that
“[h]ad the trial court realized, in the circumstances, using the hope that [Reynolds] would
be found to be an MDO as support for a state prison sentence was improper, it is
reasonably probable it would have granted [Reynolds] probation as recommended by the
probation officer.” Again, we read the court’s clearly expressed concerns with

       4
        Since we find that the court’s denial of probation is otherwise adequately
supported, we need not decide if consideration of the mental health treatment possibilities
available under the MDO scheme are, or are not, factors reasonably related to the court’s
sentencing discretion under California Rules of Court, rule 4.408(a).


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Reynolds’s level of dangerousness, and his failure to comply with prior conditions of
probation, very differently than what Reynolds urges. Reynolds does not show any
reasonable probability that the court would have granted him probation even absent
consideration of the possibility of MDO treatment, and any alleged error in denying
probation was unquestionably harmless.
                                  III.   DISPOSITION
      The judgment is affirmed.




                                                _________________________
                                                Bruiniers, J.


We concur:


_________________________
Jones, P. J.


_________________________
Needham, J.




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