Filed 8/26/15 P. v. Swint CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G050366

         v.                                                            (Super. Ct. No. 13NF1803)

JEVON RAMON SWINT,                                                     OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, William
R. Froeberg, Judge. Affirmed.
                   Robert L.S. Angres, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and
Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
              Appellant Jevon Ramon Swint contends the trial court abused its discretion
in sentencing him to the midterm of three years in prison for aiding and abetting a
robbery. He argues the court overlooked some mitigating factors that, if considered,
would have necessitated the imposition of the lower term of two years. Finding no error,
we affirm the judgment.
                                           FACTS
              Appellant and codefendant David Alvares went to the men’s department of
the Sears store in Buena Park. After Alvares stacked up an assortment of pants and
shirts, appellant left the store and entered a car in the parking lot. Then Alvares left the
store too, without the clothing. He spoke to appellant in the parking lot and then went
back inside the store and retrieved the stack of clothes he had previously assembled.
Items in hand, he then left the store through an emergency exit, triggering the alarm.
When a security officer confronted him outside, Alvares pointed a flare gun at him and
made popping sounds with his mouth. He then ran to appellant’s car, threw the clothes
inside and got in. Appellant drove away, but the police arrested him the following day.
At first he denied any involvement in the robbery, but after the police told him they had
surveillance footage of him at the store, he admitted being Alvares’ getaway driver. He
claimed it was Alvares’ idea to steal the clothes, and he did not really want to go along
with it.
              At trial, appellant reiterated his claim that he was a reluctant participant in
the theft. In fact, he testified he tried to prevent it by slowly circling around in the
parking lot while Alvares was in the store. He hoped that if Alvares did not see him
when he came outside, it would dissuade him from trying to steal anything. That didn’t
happen. And when appellant saw Alvares running to his car with the clothes, he opened
the passenger door for him. Although appellant admitted he had previously seen a flare
gun at Alvares’ cousins’ house, he claimed Alvares did not have a gun with him on the
day of the robbery.

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              The jury convicted appellant of aiding and abetting the robbery but found
not true the allegation he was personally armed with a firearm. After the trial court found
appellant had previously suffered a prior strike conviction and a prior serious felony
conviction, it sentenced him to 11 years in prison, consisting of double the midterm of 3
years for the robbery, plus 5 years for the prior serious felony conviction. This appeal
followed.
                                         DISCUSSION
              Appellant contends the trial court abused its discretion in imposing the
middle term for his robbery. We disagree.
              Prior to sentencing, the probation department prepared an extensive
sentencing report for the court. The report reflects appellant was involved in several theft
and drug-related crimes as a minor. After he became an adult in 1995, he graduated to
more serious offenses, like driving under the influence, battery and arson. He was also
sentenced to multiple jail and/or prison terms. All told, he has suffered close to a dozen
convictions, and his performance on probation and parole has been poor. In fact, he was
on probation on this occasion. In light of appellant’s lengthy criminal record, the
probation officer surmised “it would seem he has no interest in rehabilitation and will
continue to do as he pleases, regardless of the consequences to himself or anyone else.
[He] has been given numerous opportunities by the court, parole and probation; however,
he has yet to take the law seriously.”
              At the sentencing hearing, the trial court denied appellant’s request to
dismiss his prior strike conviction in the interest of justice, based on appellant’s lengthy
criminal record and lack of rehabilitative efforts. Speaking to the circumstances of the
present offense, the court stated “the crime involved the threat of bodily harm in that
[appellant] was the wheelman of a getaway car when his coparticipant threatened a
security guard with a weapon. The manner in which the crime was committed indicates
planning, sophistication and professionalism. The crime involved an attempted or actual

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taking of great monetary value. [Appellant] has engaged in violent conduct that indicates
a danger to society.” The court stated it had considered the aggravating and mitigating
factors, but “[t]here do not appear to be any factors in mitigation.”
              Even so, given that Alvares was the one who confronted the security guard,
the court did not sentence appellant to the upper term of five years for the robbery.
Instead it opted for the middle term of three years. Appellant contends that was still a
year too much. In his view, the court abused its discretion by failing to impose the low
term of two years, but as we now explain, that is not the case.
              When, as here, the statute under which the defendant is convicted specifies
three possible terms, the decision to impose the upper, middle or lower term rests within
the sound discretion of the court. (Pen. Code, § 1170, subd. (b); Cal. Rules of Court, rule
4.420(a).)1 In making his selection, “the sentencing judge may consider circumstances in
aggravation or mitigation, and any other factor reasonably related to the sentencing
decision.” (Rule 4.420(b); see also People v. Black (2007) 41 Cal.4th 799, 813.) It is up
to the sentencing judge to decide how much weight should be given to the pertinent
circumstances. (People v. Brown (1988) 46 Cal.3d 432, 470.) The judge may minimize
or disregard circumstances in mitigation (People v. Lamb (1988) 206 Cal.App.3d 397,
401) and impose the upper term based on but a single factor in aggravation (People v.
Osband (1996) 13 Cal.4th 622, 730).
              On appeal, “‘[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 legitimate
sentencing objectives, and its discretionary determination to impose a particular sentence
will not be set aside on review.’ [Citation.] Concomitantly, ‘[a] decision will not be
reversed merely because reasonable people might disagree. “An appellate tribunal is


       1      All further rule references are to the California Rules of Court.


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neither authorized nor warranted in substituting its judgment for the judgment of the trial
judge.” [Citations.]’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th
968, 977-978.)
              In attempting to overcome this highly deferential standard of review,
appellant contends there were two mitigating factors attendant to the robbery that the trial
court overlooked, namely that appellant played a minor role in the crime, and the victim
was not harmed. (Rule 4.423(a)(1), (6).) However, the applicability of these factors,
which defense counsel mentioned at the sentencing hearing, was questionable to be sure.
Appellant’s role in the robbery may have been minor compared to Alvares’, but it was
still important in that he provided the means of escape from the scene. And while the
victim did not suffer any physical harm, it must have been traumatic for him when
Alvares pulled out a flare gun and started mimicking the sound of gunfire.
              Even assuming the mitigating factors, the trial court did not err in imposing
the middle term. Although the court surmised that no circumstances in mitigation
appeared to be present, it did cite appellant’s limited role in the robbery as a justification
for not imposing the upper term, so appellant benefited from that. The truth is, that even
if the court had considered both of the alleged mitigating factors, it is not reasonably
probable appellant would have received a more favorable sentence because the number of
factors in aggravation cited by the trial court – eight in all – was simply overwhelming.
(See People v. Davis (1995) 10 Cal.4th 463, 552 [reasonable probability standard of
harmless error review applies to alleged sentencing errors].) Indeed, the record shows
appellant is a habitual offender whose crime-free stints have only occurred when he has
been locked up behind bars. Therefore, any sentencing error that occurred was
manifestly harmless. (Compare People v. Burney (1981) 115 Cal.App.3d 497, 504-506
[trial court’s failure to consider genuinely applicable mitigating factors warranted a
remand for resentencing where the number of mitigating factors was roughly equal to the
number of aggravating ones].)

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                                  DISPOSITION
            The judgment is affirmed.




                                            BEDSWORTH, J.

WE CONCUR:



O’LEARY, P. J.



FYBEL, J.




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