Filed 2/28/13 P. v. Wiedemann CA1/5


             NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE



THE PEOPLE,
         Plaintiff and Respondent,                                       A135695
                   v.
JOSHUA GREG WIEDEMANN,                                                   (Lake County
                                                                         Super. Ct. No. CR928920)
         Defendant and Appellant.

         Defendant Joshua Greg Wiedemann (appellant) pled no contest to one count of
burglary and the trial court sentenced him to a three-year jail sentence. Appellant
contends the court abused its discretion in imposing the upper term. We affirm.
                                      PROCEDURAL BACKGROUND
         A March 2012 amended complaint charged appellant with burglary (Pen. Code,
§ 459) (counts 1 & 5), receiving stolen property (id., § 496, subd. (a)) (counts 2, 3 & 4),
misdemeanor possession of burglary tools (id., § 466) (count 6), and misdemeanor
possession of drug paraphernalia (Health & Saf. Code, § 11364.1) (count 7).
         Pursuant to a plea agreement, appellant pled no contest to the burglary charge in
count 5. The agreement specified that appellant would receive a jail sentence between 16
months and three years and the remaining counts would be dismissed pursuant to a
Harvey waiver, allowing the sentencing court to consider the facts of the dismissed
counts. (See People v. Harvey (1979) 25 Cal.3d 754.)


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       The trial court sentenced appellant to jail for the three-year upper term with credit
for 132 days time served. This appeal followed.
                                FACTUAL BACKGROUND
       According to the probation report, on February 18, 2012, a Lake County police
officer arrested appellant pursuant to two active warrants from Tehama County.
Appellant had in his possession a bag full of stolen property, a backpack containing
numerous burglary tools, marijuana, and drug paraphernalia associated with
methamphetamine use. He also had in his possession another man’s driver’s license,
which had been stolen during a February 14 car burglary, and a car registration and other
documents stolen during another prior car burglary.
       On February 19, 2012, a senior center reported that property had been stolen from
a Red Cross emergency response vehicle. The items found in appellant’s bag were
identified as property stolen from the vehicle.
                                        DISCUSSION
       Appellant contends the trial court abused its discretion in imposing a three-year
upper term sentence. We disagree.
I. Standard of Review
       A trial court’s exercise of its discretion in selecting a sentence under Penal Code
section 11701 is subject to review for abuse of discretion. (People v. Sandoval (2007) 41
Cal.4th 825, 847.) “[A] trial court will abuse its discretion . . . if it relies upon
circumstances that are not relevant to the decision or that otherwise constitute an
improper basis for decision. [Citations.]” (Ibid.) “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.’ [Citation.]” (People v. Lai (2006) 138 Cal.App.4th 1227, 1258 (Lai).) “ ‘The
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


1   All undesignated section references are to the Penal Code.

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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.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978; accord,
Lai, at pp. 1258-1259.)
II.    Background
       At the time of his February 2012 arrest on the present offense, appellant was 23
years old. The probation report stated that appellant began regularly using marijuana,
methamphetamine, and alcohol as a minor. Appellant was declared a ward of the court
when he was 14, after he vandalized a car. While appellant was still a minor, the juvenile
court found true probation violation allegations for fighting at school, possession of
marijuana and amphetamines, truancy, possession of a knife, and positive drug tests. He
also escaped from a vehicle while being transported to a juvenile detention facility. As
an adult, appellant was convicted of driving under the influence in 2007; driving on a
suspended license three times in 2008 and 2010; and spousal battery and petty theft in
2010. Also in 2010, appellant was convicted on a felony charge of transporting or
furnishing a controlled substance, and he was placed on probation in Tehama County. In
2011, he was convicted of felony possession of a controlled substance and again placed
on probation in Tehama County.
       The probation report concluded there were no exceptional circumstances that
would make appellant eligible for probation. Based on his prior multiple felony
convictions, his prior poor record on probation, and that he was on probation when he
committed the new offense, the probation officer recommended appellant be sentenced to
jail for the three-year upper term. The report recommended that appellant’s sentence “be
served in the Lake County Jail, pursuant to” section 1170, subdivision (h)(5)(A).2
       At the sentencing hearing, appellant’s counsel stated that appellant “was in a Prop
36 drug treatment program in Tehama County at the time of this offense” and wanted to

2  Section 1170, subdivision (h)(5)(A) provides that a trial court may, when imposing a
sentence on certain felonies, commit the defendant to a county jail “[f]or a full term in
custody as determined in accordance with the applicable sentencing law.”

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resume drug treatment. Alternatively, counsel argued “for something less than the
maximum possible sentence within the sentence range.” The prosecutor recommended
the upper term because appellant had a pattern of repeatedly violating probation and had
failed to address his substance abuse problem.
       The court declined to reinstate probation, noting appellant’s “very, very long rap
sheet.” The court imposed the upper term based on four aggravating factors identified in
the probation report: “the Court finds the defendant has engaged in violent conduct
which indicates a serious danger to society. His prior convictions as an adult and
sustained petitions as a juvenile are numerous. He was on probation when the crime was
committed. His prior performance on probation was unsatisfactory.” (See Cal. Rules of
Court, rule 4.421(b)(1), (2), (4) & (5).) The court found no circumstances in mitigation.
The court recognized that appellant admitted guilt but pointed out that “numerous other
counts were dismissed in consideration therefore.” The court also found that appellant
“has a demonstrated history of substance abuse.” The court imposed the upper-term
sentence of three years, to be served in the Lake County Jail, and awarded presentence
credits of 132 days.
III.   Analysis
       Appellant does not dispute that the aggravating circumstances identified by the
trial court are relevant and supported by the record. Instead, he claims the trial court
abused its discretion because it failed to consider or give sufficient weight to two
mitigating circumstances that, he claims, justified imposition of a shorter sentence or a or
“hybrid” sentence under section 1170, subdivision (h)(1) or (2).3
       In particular, appellant asserts the court failed “to give sufficient weight to the
early admission of responsibility” because appellant entered a no contest plea a little

3   “In sentencing a defendant to county jail under section 1170, subdivision (h)(1) or (2),
the trial court has an alternative to a straight commitment to jail for the term specified by
statute (id., subd. (h)(5)(A)). It can impose a hybrid sentence in which it suspends
execution ‘of a concluding portion of the term’ and sets terms and conditions for
mandatory supervision by the county probation officer. (Id., subd. (h)(5)(B).)” (People
v. Cruz (2012) 207 Cal.App.4th 664, 671.)

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more than a month after his arrest. However, the trial court considered that circumstance
but declined to give it weight as a mitigating circumstance because appellant received
substantial consideration for his plea in the dismissal of the remaining counts. Appellant
presents no authority the trial court was compelled to give that circumstance weight.
       Appellant also argues the trial court failed to give proper consideration to the fact
of his drug addiction as a mitigating circumstance. At the outset, we reject the suggestion
that the trial court failed to consider appellant’s drug addiction. The record shows the
trial court was aware of appellant’s history of substance abuse, and the court made a
finding to that effect. Appellant cites to People v. Garcia (1999) 20 Cal.4th 490 (Garcia)
in support of the proposition that drug addiction is a mitigating circumstance. Garcia
stated, in affirming a trial court’s decision to strike prior conviction allegations, “as the
trial court noted, [Garcia’s] prior convictions all arose from a single period of aberrant
behavior for which he served a single prison term. [Garcia] cooperated with police, his
crimes were related to drug addiction, and his criminal history does not include any
actual violence. Cumulatively, all these circumstances indicate that ‘[Garcia] may be
deemed outside the [Three Strikes] scheme’s spirit,’ at least ‘in part,’ and that the trial
court acted within the limits of its section 1385 discretion. [Citation.]” (Id. at p. 503.)
Although in a different statutory context, Garcia does provide persuasive support for the
proposition that, in an appropriate case, a trial court may consider the fact that a crime
was motivated by drug addiction as a mitigating circumstance.
       Nevertheless, we believe the facts in People v. Martinez (1999) 71 Cal.App.4th
1502 (Martinez), are more analogous and, thus, the reasoning therein more applicable to
the present case. There, the defendant contended his sentence of life imprisonment under
the “Three Strikes” law violated the state constitutional prohibition of cruel or unusual
punishment. (Martinez, at pp. 1509-1510.) In rejecting the claim, the court pointed out
in part that Martinez was “a frequent repeat offender who seemingly has not learned from
past incarceration. At sentencing he acknowledged that in the past dozen years he had
averaged about 45 days between leaving jail and being arrested again. [¶] [Martinez]
portrays himself as a drug addict and a victim of drugs. The record demonstrates [he] has

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had lifelong problems with alcohol and drugs. However, drug addiction is not
necessarily regarded as a mitigating factor when a criminal defendant has a long-term
problem and seems unwilling to pursue treatment. [Citations.] It is notable that
[Martinez] appears to have become seriously committed to seeking treatment after
incarceration on charges carrying a life term. [Martinez’s] upbringing and learning
disabilities are unfortunate, but the law still holds such an individual responsible for his
or her behavior.” (Id. at pp. 1510-1511.) In the present case, the record demonstrates
that appellant is a repeat offender who has performed poorly on probation and has failed
to take drug treatment seriously. He was on probation in a drug treatment program when
he committed the present offense. The trial court did not abuse its discretion in failing to
treat appellant’s drug addiction as a mitigating circumstance.
       Moreover, even if the court erred in failing to identify appellant’s acceptance of
guilt and drug addiction as mitigating circumstances, the error was not prejudicial
because there is no reasonable probability a more favorable sentence would have been
imposed in the absence of the error. (People v. Scott (1994) 9 Cal.4th 331, 355.) As
explained above, in the present case, the two mitigating circumstances relied upon by
appellant were weakly mitigating at best. Moreover, the record reflects that the trial court
had those circumstances in mind, even if it did not accept them as mitigating
circumstances. In light of the four undisputed aggravating circumstances identified by
the trial court, any error in identifying mitigating circumstances was harmless. (See
People v. Jones (2009) 178 Cal.App.4th 853, 863, fn. 7 [“Only a single aggravating
factor is necessary to make it lawful for the trial court to impose an aggravated prison
term. [Citations.]”].)
       We also reject appellant’s claim the trial court erred by not “suspend[ing] any
portion of the upper-term sentence” or “reserv[ing] jurisdiction to later determine an
appropriate portion to suspend,” under section 1170, subdivision (h)(5)(B). Appellant
has not shown the trial court was unaware of its discretion under section 1170,
subdivision (h), and we will not presume such unawareness. (People v. Mosley (1997) 53
Cal.App.4th 489, 496.) Neither does appellant present any authority that a trial court is

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required to expressly consider sentencing under section 1170, subdivision (h)(5)(B) on
the record. For the reasons stated previously, the trial court’s decision to impose the
upper term sentence was not an abuse of discretion. Appellant’s claims on appeal are
without merit.4
                                      DISPOSITION
       The trial court’s judgment is affirmed.



                                                 SIMONS, J.



We concur.




JONES, P.J.




NEEDHAM, J.




4   We need not and do not consider respondent’s contention that appellant’s claims were
forfeited by appellant’s counsel’s failure to object below.

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