Filed 5/12/15 P. v. Latham 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Yuba)
                                                            ----



THE PEOPLE,                                                                                  C076215

                   Plaintiff and Respondent,                                     (Super. Ct. No. CRF13598)

         v.

IRITA MARIE LATHAM,

                   Defendant and Appellant.




         Defendant Irita Marie Latham pleaded no contest to false personation (Pen. Code,
§ 529, subd. (a)(3)) and unlawfully taking or driving a vehicle without the owner’s
consent (Veh. Code, § 10851, subd. (a)). In exchange for her plea, defendant was placed
on probation under Proposition 36 (the Substance Abuse and Crime Prevention Act of
2000) and placed immediately into a residential treatment program. Defendant later
violated the terms of her probation, probation was revoked, and the trial court denied her
request to reinstate probation, sentencing her to three years eight months in “local
prison.”


                                                             1
        Defendant appeals. She contends the trial court abused its discretion in denying
her request to reinstate probation and in imposing the upper term. We affirm.
                                         FACTS
Underlying Offense
        On or about October 9, 2013, John S. reported his car stolen. A California
Highway Patrol officer saw defendant driving the stolen car and executed a traffic stop.
During the traffic stop, defendant identified herself as Stefanie Nicole Sears (defendant’s
sister). Officers found marijuana in defendant’s purse.
        Defendant told the officers she bought the car for $500 but could not produce a
bill of sale. She also told the officers she had recently moved to California and did not
yet have a California driver’s license. Defendant was taken into custody; at the county
jail officers discovered her true identity. Defendant was later charged with falsely
personating another person (Pen. Code, § 529, subd. (a)(3)), driving on a suspended
license (Veh. Code, § 14601.2, subd. (a)), and unlawfully taking or driving a vehicle
without the owner’s consent (Veh. Code, § 10851, subd. (a)).
        On October 30, 2013, defendant entered into an “open plea,” pursuant to which
she pleaded no contest to false personation. In exchange, the People agreed to dismiss
the charge of driving on a suspended license and dismiss with a Harvey waiver the charge
of driving a vehicle without the owner’s consent.1 The parties each also agreed to waive
time for judgment and sentencing to allow defendant the opportunity to participate in a
residential treatment program.
        Following execution of that plea agreement, the People determined defendant was
a “good candidate” for drug court. Accordingly, on December 3, 2013, defendant
withdrew her initial plea and pleaded no contest to falsely personating another person




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

                                             2
and driving a vehicle without the owner’s consent. In exchange for her plea, defendant
was granted Proposition 36 probation and referred to drug court. As part of her
Proposition 36 probation, defendant was released on her own recognizance into a
residential treatment facility. Defendant acknowledged that should she violate the terms
of her release, the court would sentence her to three years eight months in local prison.
       The trial court then admonished defendant: “You’re being given a real
opportunity, and that opportunity arises from [the People’s counsel] really going out of
her way to get you into this program. I want you to understand that.” Defendant replied,
“I know.”
Violation of Release Agreement
       Two days later, on December 5, 2013, defendant left the residential treatment
facility without permission from the staff or her probation officer. Accordingly, the court
revoked defendant’s “own recognizance release” and issued a warrant for her arrest.
       On February 25, 2014, law enforcement officers found defendant in bed with a
man in an outbuilding on residential property. Officers searched the outbuilding and
found “five hypodermic needles in a brown eye glass case on a coffee table near the bed.”
The syringes were filled with liquid heroin. Defendant was arrested and taken into
custody.
       On February 27, 2014, counsel was appointed, defendant was remanded into
custody without bail, and the matter was referred to the probation department (the
department) for a presentence report.
The Department’s Presentence Report
       Defendant’s interview and personal history
       Before preparing the presentence report, a deputy probation officer (the deputy)
interviewed defendant. When the deputy asked defendant why she used her sister’s name
when she was stopped by law enforcement, defendant said she assumed there was an



                                             3
outstanding warrant for her arrest and she did not want to go to jail. She claimed she did
not know the car she was driving was stolen.
       The deputy asked defendant why she left the residential treatment facility without
permission; she claimed she left because she was “having anxiety regarding her mother’s
health.” Defendant claimed her mother was in the hospital and she left the facility to “be
by her side.” Her mother passed away a few weeks later; defendant could not remember
the exact date but believed it was before Christmas.
       Defendant also told the deputy she did not want the court to grant her probation
because “she [did] not feel she [could] comply with the conditions of supervision.” She
admitted she did not want to follow the directions of her probation officer and said she
would rather go to prison. She said that while she had been in custody she was able to
“kick” her heroin addiction and felt she would never use controlled substances again.
She said she did not need treatment for substance abuse and prison would help her stay
substance-abuse free.
       The department investigated further and learned that defendant’s mother was still
alive and living in Mt. Vernon, Illinois. The department then received a letter from
defendant, wherein she explained that two and a half weeks after she left the residential
treatment facility, a woman named Viola Stopyra passed away. Stopyra was not
defendant’s biological mother, but defendant claimed she “regarded Viola as her
mother.” The department learned that a Viola Stopyra had died in the hospital on
January 14, 2014.
       According to the presentence report, defendant consumed alcohol and marijuana
for the first time when she was seven years old. Defendant began using
methamphetamine when she was 10 years old. By the time she was 11, defendant was
drinking alcohol on a daily basis; her drinking would “ ‘ebb and flow,’ with her abuse of
methamphetamine.”



                                             4
          Defendant stopped using methamphetamine when she was 18 years old; at the
same time her consumption of alcohol decreased. About that time, however, defendant
developed an addiction to prescription pain medication. Defendant began using
methamphetamine again in 2009, after her marriage ended. At the time of her arrest,
defendant was injecting heroin daily; she admittedly injected herself on the day of her
arrest.
          Defendant’s criminal history
          Defendant was first convicted of a crime in November 2007, when she was
convicted of driving under the influence of alcohol, with a blood-alcohol content at or
above .08 percent. (Veh. Code, § 23152, subd. (b).) Defendant was given three years of
probation, which she violated four times. In May 2010 she was convicted of
misdemeanor resisting an executive officer (Pen. Code, § 69), and in July 2010 she was
convicted of resisting public or peace officers in the discharge of their duties (Pen. Code,
§ 148, subd. (a)(1)) and possession of a hypodermic needle or syringe (Bus. & Prof.
Code, former § 4140).
          In November 2010, while on probation, defendant was arrested and charged with
falsely representing herself as another person to a peace officer (Pen. Code, § 148.9),
resisting a peace officer, and possession of methamphetamine, a controlled substance
(Health & Saf. Code, § 11377, subd. (a)).2 Defendant was then convicted of burglary
(Pen. Code, § 459) in January 2011 and sentenced to 16 months in state prison. In
July 2011 defendant was convicted of two more counts of burglary and sentenced to
another 16 months in state prison.
          On February 7, 2012, defendant was released from prison and placed on “post
release community supervision.” Defendant absconded on March 19, 2012. Defendant



2Those charges were dismissed with a Harvey waiver in the resolution of another
matter.

                                              5
was found on September 12, 2012, and served a “10 day flash incarceration.” Six days
after her release from the flash incarceration, defendant absconded again. She was found
on May 25, 2013, and ordered to serve a 120-day “custodial commitment.”
        In December 2013, after she was arrested on the charges for which she was
ultimately convicted in this matter, the trial court revoked defendant’s postrelease
community supervision for failing to obey all laws and for “drug use.” Then, in
February 2014, while she was released on Proposition 36 probation in this matter and
after she absconded from the residential treatment facility, defendant was charged with
unlawful possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a))
and possession of drug paraphernalia (Health & Saf. Code, former § 11364.1).
        On March 5, 2014, while she was incarcerated in the county jail, jail deputies
found 0.1 gram of methamphetamine on defendant’s person and another 9.4 grams of
methamphetamine on another inmate in her housing group.
        Sentencing recommendation
        The department reported defendant was presumptively ineligible for probation
because of her two prior felony convictions. (Pen. Code, § 1203, subd. (e)(4).) The
department’s report listed numerous factors weighing against a grant of probation:
(1) defendant was an active participant in the crime of which she was convicted (Cal.
Rules of Court, rule 4.414(a)(6));3 (2) this was defendant’s fourth felony conviction
(rule 4.414(b)(1)); (3) defendant was on community supervision at the time the offense
was committed and she had numerous violations of probation and parole
(rule 4.414(b)(2)); (4) defendant stated she was not willing to comply with the terms of
probation (rule 4.414(b)(3)); (5) defendant had an extensive criminal history, multiple
violations of probation, and failed to address her long-standing substance abuse despite




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

                                               6
intervention (rule. 4.414(b)(4)); (6) prison would not adversely impact defendant as she
had been in prison before (rule 4.414(b)(5)); and (7) “defendant [would] not suffer any
overly adverse collateral consequences from additional felony convictions”
(rule 4.414(b)(6)).
       The department found only two factors in favor of granting probation, that the
nature of the crime “when compared with other instances of the same crimes, fall[s]
within the mean” (rule 4.414(a)(1)) and defendant’s criminality does not pose a danger to
the public (rule 4.414(b)(8)).
       The department recommended defendant be sentenced to the middle term. In so
recommending, the department noted the following aggravating factors: (1) “defendant’s
prior convictions as an adult are numerous or of increasing seriousness”
(rule 4.421(b)(2)); (2) defendant served a prior prison term (rule 4.421(b)(3));
(3) defendant was on community supervision at the time of the offense (rule 4.421(b)(4));
and (4) defendant’s prior performance on probation and community supervision was
unsatisfactory (rule 4.421(b)(5)). The department found no mitigating circumstances;
however, the department also found “defendant’s actions in the present matter are not
viewed as an upper term sentence . . . .”
Sentencing
       Defendant appeared for sentencing on March 24, 2014, arguing for probation to be
reinstated. At the outset of the hearing, the trial court noted defendant “tried to pull the
wool over everyone’s eyes.” The court indicated defendant was untrustworthy (noting
that defendant’s biological mother was still alive despite defendant’s claim that she left
the residential treatment facility because her mother was dying) and did not “appear to be
suitable for anything other than the upper term.” Defendant explained (as she had in her
letter to the department) that when she referred to her mother dying, she was not referring
to her biological mother, but to a woman she considered to be like a mother to her.



                                              7
         Defendant also advised the court that after she was interviewed by the department,
she learned she was pregnant. Now defendant wanted another opportunity to go to drug
court. Defendant claimed her pregnancy gave her a “stronger reason than just herself” to
get clean and sober. The trial court was not persuaded.
         The court declared defendant ineligible for probation unless there were unusual
circumstances. The court then stated, “[t]here’s no unusual case finding to be made here
due to [defendant’s] lack of candor to the [department] and habitual lies indeed listed in
529(a)(3).”
         The court continued, “[b]ut, at any rate, there’s no reason to reinstate defendant in
this matter. She has three felony convictions, all crimes of moral turpitude. 459 second.
Three of them. She had one prior prison term 2011, that’s an aggravating factor. She
commits this crime while she’s on post release community supervision. She is unsuitable
for anything other than the upper term.”
         The trial court acknowledged that the department recommended the middle term
be imposed; the trial court, however, rejected the recommendation and imposed the upper
term of 36 months in local prison on the false personation charge. In so doing, the trial
court found the following aggravating factors: (1) defendant lied, putting her sister at
risk, because she did not want to go to jail; (2) defendant committed her crime while on
postrelease community supervision; (3) defendant has multiple felony convictions; and
(4) defendant has performed poorly on probation. The court found no mitigating factors
and defendant did not raise any. In addition, the court sentenced defendant to a
consecutive eight-month term (one-third the midterm) on the charge of driving a vehicle
without the owner’s consent.
         Defendant appeals; the trial court denied her request for a certificate of probable
cause.




                                               8
                                        DISCUSSION
       Citing her pregnancy and decades-long drug and alcohol addictions, defendant
contends the trial court abused its discretion in denying probation and in imposing the
upper term. Defendant also contends the trial court erred in imposing the upper term,
arguing the court relied on inappropriate aggravating factors and ignored the mitigating
factors. We reject defendant’s contentions.
Denial of Probation
       Because of her three prior felony convictions, defendant was presumptively
ineligible for probation; a grant of probation is not permissible “[e]xcept in unusual cases
where the interests of justice would best be served if the person is granted probation.”
(Pen. Code, § 1203, subd. (e); see id. at subd. (e)(4).) In determining whether a case is
“unusual,” the trial court uses the criteria listed in rule 4.413(c). Even assuming criteria
in rule 4.413(c) exist, the trial court may, but is not required to, find the case to be an
unusual one. (People v. Stuart (2007) 156 Cal.App.4th 165, 178.) If the trial court finds
the case to be an unusual one, it decides whether to grant probation using the criteria
listed in rule 4.414. We apply the abuse of discretion standard in reviewing both
determinations. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831 (Du).)
       “ ‘Probation is an act of clemency which rests within the discretion of the trial
court, whose order granting or denying probation will not be disturbed on appeal unless
there has been an abuse of discretion’ ” (Du, supra, 5 Cal.App.4th at p. 831), that is,
whether a court’s order is arbitrary or capricious, or “ ‘exceeds the bounds of reason, all
of the circumstances being considered.’ ” (People v. Warner (1978) 20 Cal.3d 678, 683.)
       In determining defendant’s case was not an unusual one, the trial court found
defendant was an “habitual li[ar],” noting not only her criminal lies to the police but her
lies to the probation department. Whether this was a proper basis for finding defendant’s
case was not an unusual one, the court went on to find that “at any rate, there’s no reason
to reinstate defendant in this matter.” Thus, even if the case were an unusual one, the

                                               9
court determined probation was unwarranted due to defendant’s lengthy criminal history
(rule 4.414(b)(1)), her prior prison term (rule 4.414(b)(1)), and the fact she committed
this crime while on community supervision (rule 4.414(b)(2)). We conclude this was an
appropriate exercise of the court’s discretion.
The Upper Term
       Defendant further contends the trial court erred in imposing the upper term.
Defendant did not, however, object to the court’s imposition of the upper term in the trial
court, so the claim is forfeited. (People v. Scott (1994) 9 Cal.4th 331, 354-355 (Scott).)
       Moreover, defendant cannot argue for the first time on appeal that the trial court
improperly relied on an aggravating factor that was also an element of the crime. (Scott,
supra, 9 Cal.4th at p. 353.) Nor can she argue the trial court erred in failing to consider
mitigating circumstances that she never raised in the trial court. (Ibid.)
       Though defendant forfeited her claims, even had she preserved them, we find no
error. Numerous factors supported the trial court’s imposition of the upper term,
including defendant’s multiple felony convictions and the fact that she had previously
served a prison term. A single factor supports a sentencing choice. (People v. Osband
(1996) 13 Cal.4th 622, 730.)
                                      DISPOSITION
       The judgment is affirmed.


                                                            RAYE               , P. J.

We concur:


         ROBIE              , J.


         DUARTE             , J.



                                             10
