Filed 9/7/16 P. v. Faulkner CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F070977
         Plaintiff and Respondent,
                                                                         (Fresno Super. Ct. No. F13910611)
                   v.

TODD MICHAEL FAULKNER,                                                                   OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Alvin M.
Harrell III, Judge.
         Robert F. Kane, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and
George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-


*        Before Levy, Acting P.J., Gomes, J. and Franson, J.
       Defendant Todd Michael Faulkner was convicted by no contest plea of being a
felon in possession of an assault rifle (Pen. Code, § 29800, subd. (a)(1)).1 On appeal, he
contends the trial court abused its discretion when it imposed a midterm sentence of
two years in prison, rather than a mitigated sentence of 16 months or a grant of probation.
We affirm.
                       FACTS2 AND PROCEDURAL HISTORY
       On November 7, 2013, deputies responded to defendant’s Squaw Valley residence
regarding a disturbance. They found an injured dog and a trail of blood near the entrance
of the residence. After getting no response, they entered the residence to investigate. As
they walked through the residence, they smelled marijuana, observed two bedrooms
being used to grow and process marijuana, and saw evidence of marijuana honey oil
extraction. After obtaining a search warrant, the deputies discovered a large container of
honey oil, equipment for honey oil extraction, 47 marijuana plants hung to dry, 13 mature
marijuana plants, and 33 young marijuana plants. In the master bedroom, they found an
AR-15 chambered rifle with one round in the chamber but no magazine attached, several
boxes of .223 Remington ammunition containing 80 rounds, and two AR-15 magazines.
       Defendant and his girlfriend arrived home and learned that the deputies had found
the marijuana. Defendant told the deputies he had a Marijuana Recommendation Card.
The deputies explained that the card did not allow him to extract the honey oil. (Used
equipment suggested defendant had produced hundreds of doses of honey oil.)
Defendant admitted that everything inside the residence belonged to him, including the
rifle. He explained he had found the rifle at a marijuana growing site.
       On November 5, 2014, defendant pled no contest to being a felon in possession of
an assault rifle (§ 29800, subd. (a)(1)). The trial court indicated a sentence lid of


1      All statutory references are to the Penal Code unless otherwise noted.
2      The facts of the offenses are taken from the probation officer’s report.


                                              2.
three years in exchange for dismissal of two other felony counts, unlawful possession of
ammunition (§ 30305, subd. (a)(1)) and manufacturing phencyclidine (Health & Saf.
Code, § 11379.6, subd. (a)).
       The probation officer’s report noted that defendant’s health was poor: He had a
tumor removed in 2011 and suffered from serious migraines and a bad memory. He also
suffered from anxiety and took Xanax to treat it. He said he used marijuana twice daily,
but denied using any other drugs, including alcohol. He used marijuana for medical
purposes because it helped his pain and also helped him eat and sleep. The report noted
that defendant was engaged and had a 12-year-old child. Defendant did not submit a
written statement to the probation officer.
       The probation officer stated that defendant was statutorily ineligible for probation
in the absence of unusual circumstances, and the officer could find none. As for a prison
commitment, the probation officer analyzed circumstances in aggravation and mitigation,
finding the following factors. In aggravation: (1) the manner in which the crime was
carried out indicated planning, sophistication or professionalism; (2) the crime involved a
large quantity of contraband; (3) defendant’s prior convictions were numerous or of
increasing seriousness; (4) defendant’s prior performance on probation or parole was
unsatisfactory; and (5) the dismissed counts listed in the complaint could be considered
as factors in aggravation. In mitigation: (1) defendant voluntarily acknowledged
wrongdoing before arrest or at an early stage of the criminal process. The probation
officer recommended the middle term of two years in prison.
       Defendant had been convicted of misdemeanor driving without a license in 2000
and 2003, felony possession of marijuana in 2003, felony growing of marijuana in 2006,
and misdemeanor driving under the influence of alcohol in 2009. He had been granted
probation.
       On January 28, 2015, the sentencing hearing was held. The court stated it had
read and considered the probation officer’s report and asked if there were any changes,

                                              3.
corrections, deletions, or additions to be made. Defense counsel said no, then stated the
following:

              “[DEFENSE COUNSEL]: Your Honor, [defendant] is asking the
       Court for leniency, asking the Court either find unusual circumstances to
       place him on probation or sentence him to the mitigated term of 16 months.
       [Defendant] suffers from brain tumors and has significant pain that he has
       been dealing with as well as surgeries. He is the sole provider for his 12-
       year-old son, his 18-year-old son who still lives with him and his two-year-
       old son. He has two prior felony convictions, but he successfully
       completed both of those. He admitted responsibility at an early stage of the
       proceedings, was cooperative with officers, and this is not a crime of
       violence. [Defendant] would also like to address the Court.”
       Defendant then explained to the court that the deputies did not find the rifle during
their search of his residence. Rather, he approached them and told them he had a felony
and did not want the rifle on his property. He told them he found the rifle in the woods in
a Mexican cartel grove and took it because somebody could have shot a child or someone
else. He slashed the water lines and took the rifle and ammunition. He possessed the
rifle for two weeks and was afraid to give it to the police because he did not want to go to
prison for it. He knew he was not supposed to have it. When he handed it to the
deputies, the rifle was broken and inoperable. He said the photograph of the rifle
assembled did not show the rifle as it was when he gave it to the deputies. He turned the
rifle over willingly and could simply have remained silent about it.
       The court said the investigator’s report stated that defendant bought three rounds
of ammunition for the rifle from a friend. The court asked defendant why he would buy
ammunition if the rifle did not work. Defendant said the report was not true. He found
ammunition with the rifle and took everything to protect others. He did not know that the
rifle worked.
       The court gave counsel an opportunity to present argument. The following
occurred:




                                             4.
        “[PROSECUTOR]: Your Honor, what [defendant] told you is that
he single-handedly walked into a marijuana grove and took weapons away
from a Mexican drug cartel. I don’t know how believable that is, but he
says he took a—an automatic weapon and boxes of ammunition from a
Mexican drug cartel. That’s what we’re starting with. Second thing I’d
like to argue, is that [defendant is] before the Court with two felony
convictions, and this would be his third. So, the Court would have to find
unusual circumstances not to send him to prison. The third thing I would
like to argue is that when— [¶] … [¶] When the Court saw the weapon
and saw the boxes of ammunition, the Court could see that the—the
weapons here are very clean. The boxes are very clean as if they were
bought from a store, your Honor. It’s not as if they were found lying
somewhere in the dirt, and then we’re talking about a dirty weapon in
rusted condition that would have been left out by somebody, left out in the
open as if it was rusted and a child would find it. Third, the weapon was
found in a place—was found behind his dresser in a place where it could be
hidden. It wasn’t as if it was a weapon that he just found somewhere and
just left it for him to bring to law enforcement on a different day. He had
it—he had it behind a dresser, and one of the pictures shows the weapon as
it was found behind the dresser. If the Court sees the picture on the lower
bottom side—lower bottom right-hand side, this is a picture of the weapon
as it was found behind the dresser.

       “THE COURT: Let me see it. Looks like it’s all put together to me.

       “[PROSECUTOR]: Yes.

        “THE COURT: I’m going to return that, and I’m also taking the
opportunity to look at the boxes of ammunition. Court’s very familiar with
this type of ammunition. Those boxes do look like they’re in very good
condition. They do not look like boxes that are left out to the elements, and
I’m looking at the firearm, although it is painted camouflage green and
black, it does not appear to have any dirt or any type of leaves or anything
that would be consistent with it being left in a forest even for a short period
of time. So, I’m going to return that back to you, Counsel.

        “[PROSECUTOR]: Now, the offer I gave [defendant], I thought,
was generous, because if the Court were to look at Count Three, which I
dismissed as part of the plea, his exposure was seven years in prison. Now,
I think realistically he wasn’t going to do seven years, but I do think
realistically he could have done five, because it’s a three, five and seven
[offense]. Now, we combine that with the fact that he’s possessing a
weapon, that would be five years, not in local jail, but it would be five years
in prison. So, I gave [defendant] the benefit of the doubt by—by offering

                                      5.
the 16, two, three—16, two, three offense, and I wanted to argue the three
[years], and I’m still arguing the three. And the reason I’m arguing the
three is we’re talking about a man who has two prior marijuana offenses,
one from 2007, possession for sale of marijuana in ‘03 and another Health
and Safety Code [section] 11358 in ‘06 for another cultivation charge.
Now we have [defendant] coming before you when the officers come into
his house and find two large glasses filled with marijuana honey oil,
33 plants hanging from the ceiling to dry, another—that would be in the
central bedroom, in the west central bedroom, 14 marijuana plants hung
from the ceiling, 13 plants in a plastic box, 33 plants in red cups in the
master bedroom. He has the rifles, he has the ammunition, and he has two
large glasses filled with marijuana honey oil. This is a person with priors.
He has another prior—he has another case before you with the same
offense, and he told you he stole. In his—in his statement to you before—
to the Court right now, he told you he stole ammunition that—the same
ammunition that was found in the house. So, we have a person with
two priors, he’s doing the same thing again. He’s telling you he steals,
and—and his—and he has a weapon in his house. And now we’re talking
about not sending him to prison. Well, I’m arguing for prison
notwithstanding the Court’s indicated, and that is why.

     “THE COURT: Thank you. Very eloquently put. [¶] [Defense
Counsel], do you wish to be heard?

       “[DEFENSE COUNSEL]: I believe [defendant] would like to
address some of the things that were stated.

       “THE COURT: Yes.

        “THE DEFENDANT: Sir, my first marijuana charge was
possession, but I had a medical license, and Fresno County did not abide by
my medical license and gave me a felony anyway. In Count Two of my
medical charge, cultivation, I had a medical license, and they did not
acknowledge it. They took me to jail, and this—what’s going on now is,
yes, I did take the guns from the woods. They were in a big green military
bag. There was a water line. There was food. I stabbed all the water
line[s] so they couldn’t grow their pot up in the mountains. I took the gun.
I took all the ammunition, because I did not want some kid to shoot their
dad. My dad was working on trying to turn this gun in for me. I had it in
my possession for two weeks. My dad was still trying to work on turning
this in. I asked my girlfriend, ‘How do I go about doing this, because I’m
scared. I’m a felon.’ But I did not, in other words, want these weapons in
the woods where kids go with their parents. So, I took them, and I’m not
going to lie to nobody, and I did not lie from the beginning. I told the

                                     6.
officers this that arrested me. I have nothing to hide about this. I’m telling
the complete truth. When I got arrested for my first charge for marijuana, I
was not considered a marijuana person to use [Proposition] 215, which I
had my 215 card, which was a compassionate caregiver’s card. They still
threw me under the wheels, gave me felony probation, two years this and
that, a lid. I did good. I stopped smoking pot for two years, and I started to
use it again because of my tumors. Well, I grew 10 plants. I’m allowed 99,
so I grew 10. They busted me for cultivation because Fresno County did
not acknowledge the medical marijuana laws. They still don’t.

        “And yes, I’m going to be honest with you, sir, I’m not going to lie
to you, because I show nothing but compassion for this Court. I don’t want
somebody to be killed in the mountains where I’m at because some
Mexican cartel left the stockade of weapons and food and stuff for their
growers. I’m going to sabotage it. I’m not going to allow that in the
mountains where I live. I pulled over to take a leak. I seen the stuff in the
bushes, and that’s when I took action. Now, I know I did wrong, and I’m
not going to sit here and tell you that I’m not a wrong person. I told you I
was guilty. I didn’t just say no contest. I said, ‘I am guilty of taking this
gun,’ but after the police had searched my house for six hours from
4:00 o’clock in the morning until 11:00 o’clock when I got there in the day,
seen my dog dead, you know, I had nothing to say. I didn’t want to talk to
the cops. They had already been doing their searching. I did not have
15 pounds of marijuana. I didn’t have 15-pound plants growing. I didn’t
have anything but one plant hanging, and that was my last hand. I had
already harvested and gotten all my marijuana out of my house so my kids
didn’t have to be around it. I got the gun. It was stashed behind my
dresser, and I left it there because it was broken, and I kept trying to tell my
dad, ‘Hey, I need to get rid of this thing. Hey, I need to get rid of this
thing.’ I asked my girlfriend, ‘How do I get rid of this gun? I’m a felon.
I’m scared.’ I was scared. I’m still scared, but this is what’s going on. So,
this is where I’m at today. I want to take care of this matter. Whatever I
have to do, I will do, because I’m tired of coming back and forth to court
and trying to figure out what to do on something that I thought was right. I
don’t think the Mexican cartel should be up there growing. So, if I find
something of theirs, I’m going to take it, I’m going to slash it. I’m going
to—I’m going to destroy it. Still to this day, if I get out of jail, out of
prison, and I see it again, I’m going to do it again, because there’s a lot of
kids that go to these places. It’s a big waterfall. They go with their family,
and they see the waterfall. Well, they don’t know that the Mexican cartel
grows below. I do. I happen to take a leak, see a big ol’ green bag, went
down there, opened it up, looked in it, and there was the machine gun, the
AR15, and it was fully camouflaged. It had one camouflage clip in it and


                                       7.
two black clips with it. It had four rounds of—four boxes of ammunition. I
believe one or two boxes of .45 shells and a two—and a [.]30-30—box of
[.]30-30 shells. So, I know that those cartel members still have guns out
there in the field. I told the officers I’ll take them right to it right now
because it was still there. You know, I have nothing to hide. I have no
reason to hide nothing. I’m not lying about anything. I just want to take
care of my life and get it straightened out so I can go on with my life. I was
in the military, sir. I took a foreign oath—foreign, domestic, anything, if
somebody bad does something, I’m going to take care of it, regardless. I
don’t know what to say. I—I honestly don’t know what to say. I took the
firearm because I didn’t want a child to get killed. I did not know it was
real. I didn’t know it didn’t work. So, obviously, these Mexican cartels are
sending these broken guns up there so they can overtake their crops with no
problems. I have nothing to say about that. I’m guilty about the gun. I
took the gun, yes, I did. I possessed the firearm behind my dresser, no clip
in it, no pins in it, no way to fire it. And I stuck it behind my desk—or
behind my dresser folded in half, not that same picture [the prosecutor] is
showing me. Nothing was together. She seen it with her own eyes, and I
asked her, ‘What should I do with this thing?’ And she didn’t even know,
so I’m—I was just scared. I did not know what to do with this gun except
for, okay, these guys came to my house, you know, they’re searching
because my neighbor called the cops because of a fight. My dog was
killed. I’m not running from my problems. I went to the house to talk to
the police officers. The police officers talked to me. I said, ‘How you guys
doing? What’s going on?’ ‘Oh, you need to tell us what’s going on.
What’s all this wax?’ I said, ‘There isn’t a lot of wax.’ I had two dishes of
seven grams of medical marijuana oil that I used for two months. That’s
enough for me to use for two months because I can’t smoke marijuana. I
eat it. I get that wax, and I make cookies with it, and that’s the God honest
truth. I’m not trying to sit here, snowball the Court. I just want to get my
life straightened out and go live my life, regular person. That’s why I’m
here today telling you my story. I have no reason to lie to you. You can
ask the cops, because I told them the same thing. I had no reason to lie to
them.

       “[PROSECUTOR]: The People have no response.

        “THE DEFENDANT: I mean, I could have told the police myself,
‘Hey, I don’t have nothing,’ and they would have never found anything,
and I could still have this gun in my house, but I don’t lie. I told the police
that I have an AR15, broken, and I have the clips and the ammo and several
kinds of ammo for it that I had found in a cartel crop, if I could please turn
it in without any problems. [¶] … [¶] They told me, ‘Yes, that’s fine.’


                                      8.
They were going to cite me out, send me home for the honey butane oil, but
instead, I got arrested, put in jail, you know. I need medication every day.
I didn’t get medication for a whole week. I sat in that jail dying, migraine
pain. I’m not trying to run from you. I’m not trying to run from anybody
here. I’m totally being honest, and I’m telling you right now, I am guilty of
taking the rifle from an area where children are, and I have nothing further
to say, except for that I might have saved somebody’s life because,
honestly, sir, I could have told the cops I don’t have nothing, but I don’t lie.
I told them what I had, and I gave it to them.

       “THE COURT: Matter submitted?

       “[PROSECUTOR]: Yes.

       “[DEFENSE COUNSEL]: Submitted.

       “THE COURT: Pursuant to Penal Code Section 1203(e)(4),
[defendant], you are statutorily ineligible for probation except in cases of
unusual circumstances where the interest of justice would be best served if
you were granted probation. The explanation you provide to the Court
regarding your possession of the AR15 along with the ammunition and
the—

       “THE DEFENDANT: I had [.]270 rounds and .45 rounds.

      “THE COURT: Now, are you saying that there were not 33 plants
hanging from your—

       “THE DEFENDANT: No.

       “THE COURT: —ceiling?

       “THE DEFENDANT: No. There was one plant, sir.

        “THE COURT: Because they have it documented very well,
33 marijuana plants hanging from your ceiling to dry in the central
bedroom, 14 marijuana plants hung from the ceiling in the west central
bedroom, 13 mature marijuana plants in plastic pots, 33 young marijuana
plants in red pots, then in the master bedroom is where they found the
AR15 with one round in the chamber, no magazine attached, several boxes
of [.]223 ammunition—

       “THE DEFENDANT: Yeah.




                                       9.
       “THE COURT: —the two AR15 magazines and then also the honey
oil and so forth and so on. [¶] … [¶]

        “THE COURT: All right. [defendant], I’m going to tell you, sir,
that it’s very commendable for you to retrieve the firearm with the intent to
turn it in or destroy it and hopefully saving someone from hurting
themselves or someone else, but the bottom line is that should have been
turned over immediately. Whether you have a third person do it on your
behalf or something, it should have been turned over immediately. You
knew you weren’t supposed to have any firearms or any ammunition,
correct?

       “THE DEFENDANT: Yes, but see, I was so scared, I didn’t know
what to do. I was afraid I was going to go to jail right then and there if I
even called the local Sheriffs. They’re so—they’re so corrupt up there.
They take people to jail for little things.

       “THE COURT: It’s not getting any better for you, [defendant].

       “THE DEFENDANT: No, I’m just telling the honest truth, sir.

        “THE COURT: All right. Well, at this time, the Court does not find
unusual circumstances to grant probation. The Court had listened to your
version earlier and had [given] an indicated after hearing that of a stayed
prison term of three years. After listening to the prosecutor … and hearing
his eloquent recitation of the facts, the Court does believe that a prison term
is appropriate. Therefore, the Court is going to deny probation, and the
Court is as to Count One, a violation of Penal Code Section 29800(a)(1),
will select the mid-term of two years for the violation. You’ll receive time
credits of nine actual, eight good time/work time for a total of 17. You’ll
be committed to the California Department of Corrections and
Rehabilitation. Pursuant to Penal Code Section 1202.4, you will be ordered
to pay a restitution fine of $600, pursuant to Penal Code Section 1202.45,
an additional restitution fine of [$]600 if a period of parole is ordered and
will be suspended unless parole is revoked. Pursuant to Penal Code
Section 296, you’re ordered to provide buccal swab samples, a right thumb
print, a full palm print impression of each hand, any blood specimens or
other biological samples for law enforcement analysis. You will be
included in the State of California’s DNA forensic identification database
and data bank program. This order is to be included in the abstract of
judgment. You’re to pay a courtroom security fee of [$]40, $30 assessment
fee, probation report fee of [$]296. I’m going to suspend those fines
because I do not believe you have the means to pay.



                                      10.
        “[Defendant], I’m going to let you know, in the analysis—because
we were having two complete[ly] different stories, your story and then what
we have from the prosecution and what was set forth in the probation
report, and a couple things did you in. That picture that I saw of the AR15,
that is fully assembled. I know about AR15s. I’m very familiar with those
firearms.

       “THE DEFENDANT: Sir—

       “THE COURT: Stop, stop.

       “THE DEFENDANT: —that was totally taken apart.

        “THE COURT: When I saw the photographs where it’s taken in the
back behind your dresser, that’s fully assembled. I can’t see if the clip is in
there, but the statement says the clip was taken out, and there was a round
inside the gun. I find it hard to believe that law enforcement’s going to put
the gun back together, put it behind the dresser then take a picture.

      “THE DEFENDANT: Sir, the rifle is held together by a pin. Okay.
That holds the rifle straight. Okay.

       “THE COURT: I understand that.

       “THE DEFENDANT: That pin was gone. So, I handed that gun to
those cops folded. They put something in there to keep it from—from
folding.

        “THE COURT: From what I can see on that picture, the upper is
fully attached to the lower, and it’s crystal clear, and you indicated that that
is not how that gun was.

       “THE DEFENDANT: It’s not how that gun was, sir.

        “THE COURT: Well, there’s a picture that refutes that. And then
you indicated that you got some of the ammunition—well, all the
ammunition from the field, but however, it’s stated in a report here from
law enforcement that you indicated that you purchased, it says, three rounds
of ammunition from one of your friends, AR15 ammunition, which would
be either 5.56 or the [.]223, and if—if someone was going to return the gun,
I can’t imagine why they would purchase ammunition for the gun from
their friend.

      “THE DEFENDANT: Well, I don’t understand why I would
purchase ammunition when I just found three boxes with the gun.


                                      11.
              “THE COURT: I don’t know why you’d do that either, sir.

              “THE DEFENDANT: So, why is that on there? I don’t—that’s a
       lie.

              “THE COURT: I don’t know why you’d do that either, but in any
       event, that’s the Court’s ruling.”
                                       DISCUSSION
       Defendant contends the trial court abused its discretion when it sentenced him to
two years in prison and failed to state its reasons for the sentence. He argues the court
failed to consider all of the mitigating factors, including his 2011 surgery to remove a
brain tumor, his pain and anxiety, his use of medications, his 12-year-old child, his
prison-free history, his “serendipitous” discovery of the rifle, his fear of turning the rifle
over to authorities, his use of marijuana for personal medical purposes, and the fact that
probation may have been considered in his case. He argues that even if there were no
unusual circumstances to support a grant of probation, the two-year term was an abuse of
discretion.
I.     Decision Not to Grant Probation
        “Probation is not a matter of right but an act of clemency, the granting and
revocation of which are entirely within the sound discretion of the trial court.” (People v.
Pinon (1973) 35 Cal.App.3d 120, 123.) California Rules of Court, rule 4.414 sets out
some of the criteria the trial court may consider in exercising its discretion.3 But the trial
court is not limited to those factors, and it may consider others not enumerated in the
rules so long as the court states any additional criteria on the record. (Rule 4.408(a).)
The criteria enumerated in the rules will be deemed to have been considered by the trial
court “unless the record affirmatively reflects otherwise.” (Rule 4.409.) “Under some
circumstances, the court may grant probation only in ‘unusual cases where the interests of
justice would best be served’ according to established criteria. (§ 1203, subd. (e);

3      All references to rules are to the California Rules of Court.


                                              12.
[citation].)” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) “A
defendant who is denied probation bears a heavy burden to show the trial court has
abused its discretion. [Citations.] Furthermore, ‘a denial of probation after consideration
of the application on its merits is almost invariably upheld.’ ” (People v. Mehserle
(2012) 206 Cal.App.4th 1125, 1157.)
II.    Decision Not to Select Lower Term
       A trial court’s exercise of its discretion in selecting a lower, middle, or upper term
sentence under section 1170.1 is also reviewed for abuse of discretion. (People v.
Sandoval (2007) 41 Cal.4th 825, 847.) To determine the appropriate sentence, the trial
court weighs the factors in aggravation, found in rule 4.421, against those in mitigation,
found in rule 4.423. (See Rule 4.420(b) [trial court may consider circumstances in
aggravation and mitigation “and any other factor reasonably related to the sentencing
decision”].) The relevant rules also permit the trial court to consider factors not
specifically enumerated in rules 4.421 and 4.423. (Rules 4.408, 4.420(b).) A single
factor may be determinative in the sentencing decision. (People v. Black (2007) 41
Cal.4th 799, 813 [“Under California’s determinate sentencing system, the existence of a
single aggravating circumstance is legally sufficient to make the defendant eligible for
the upper term”; People v. Forster (1994) 29 Cal.App.4th 1746, 1758 [single factor is
sufficient to justify the court’s sentencing choice].)
       “Sentencing courts have wide discretion in weighing aggravating and mitigating
factors. [Citation.] Indeed, a trial court may ‘minimize or even entirely disregard
mitigating factors without stating its reasons.’ ” (People v. Lai (2006) 138 Cal.App.4th
1227, 1258.) The court is not required to review in detail each of the mitigating factors
upon which the defendant relies. Indeed, a court can reject all mitigating factors without
explanation. (See People v. Avalos (1996) 47 Cal.App.4th 1569, 1583 [court need not
explain its reasons for rejecting mitigating factors].) “ ‘Further, unless the record
affirmatively indicates otherwise, the trial court is deemed to have considered all relevant

                                             13.
criteria, including any mitigating factors.’ ” (People v. King (2010) 183 Cal.App.4th
1281, 1322, fn. omitted.)
III.   Analysis
       As a reviewing court, we may not reweigh the sentencing factors or substitute our
judgment for that of the trial court. (People v. Scott (1994) 9 Cal.4th 331, 355.) Instead,
we limit our review to a single issue—“whether the sentencing court abused its statutory
discretion.” (People v. Jordan (1986) 42 Cal.3d 308, 317.) In the absence of a showing
by defendant that the trial court’s sentencing decision was irrational or arbitrary, we must
presume the trial court acted to achieve legitimate sentencing objectives, and its
discretionary determination will not be set aside on review. (People v. Superior Court
(Alvarez), supra, 14 Cal.4th at pp. 977-978.) We may not reverse the court’s decision
merely because reasonable people might disagree with it. (People v. Carmony (2004) 33
Cal.4th 367, 377.)
       At the outset, we reject defendant’s suggestion that the trial court failed to
consider his health problems, his need for medication and medical marijuana, and the
circumstances of his discovery of the rifle and ammunition. These circumstances were
identified in the probation officer’s report, which the court stated it had read and
considered. Furthermore, at the sentencing hearing, defense counsel and defendant
expounded at length on defendant’s medical issues, his need for medical marijuana, the
circumstances of the rifle discovery, and the reasons he was afraid to hand the rifle over
to law enforcement. The court was not required to discuss each factor before it, and we
presume it properly considered each factor.
       The court told defendant it was commendable to retrieve the rifle to protect others,
but he was required to turn the rifle over to authorities immediately. Defendant admitted
knowing he was not supposed to have the rifle, but said he was afraid of going to jail.
The court said it did not believe defendant’s explanation about his possession of the rifle
and the ammunition. The deputies’ photograph showed the rifle fully assembled and

                                              14.
hidden behind the dresser, and the court did not believe the deputies had assembled the
rifle and staged the photograph. Furthermore, the court did not believe defendant’s story
of finding the ammunition in the woods because defendant said he bought three rounds
from a friend, which he would not have done if he had found three boxes of ammunition
or if he had intended to turn the rifle over to authorities. The prosecutor pointed out that
the rifle and the boxes of ammunition appeared to be very clean, as if bought from a
store, rather than found out in the elements. The court looked at the photographs and
agreed that nothing looked as though it had been left out in a forest for even a short time.
The prosecutor stressed that defendant had an automatic weapon, boxes of ammunition,
and large vessels of honey oil. Plus, he had priors.
       Thus, the problem for defendant was not that the court did not consider all of the
factors; the problem was simply that the court did not believe defendant’s story. In other
words, the court rejected defendant’s explanations as factors in mitigation. The court
determined that defendant purposely kept an assembled, operable, and loaded rifle, plus
boxes of ammunition, hidden behind the dresser in the master bedroom of his house
where he was growing marijuana and producing large amounts of honey oil, and that he
did not intend to surrender the rifle to authorities. We are in no position to question the
trial court’s credibility determinations or reweigh the sentencing factors. The court’s
decision that under all the circumstances of this case, defendant’s purposeful possession
of a hidden, loaded rifle was a crime warranting the middle term was neither irrational
nor arbitrary, even if defendant was suffering from health issues. We see no abuse of
discretion.
                                      DISPOSITION
       The judgment is affirmed.




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