Filed 10/9/13 P. v. Moore CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B242606

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA122183)
         v.

WALTER MOORE,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Ricardo R. Ocampo, Judge. Affirmed.
         Michael Allen, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, and Paul M. Roadarmel,
Jr., Deputy Attorney General, for Plaintiff and Respondent.




                                         ________________________
       Walter Moore appeals from the judgment entered after he was convicted by a jury
of simple assault and possession of cocaine. Moore contends the trial court abused its
discretion in sentencing him to the upper term for possession of cocaine. We affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND
       1. The Charges
       In an amended information Moore was charged with assault with a deadly weapon
(Pen. Code, § 245, subd. (a)(1), count 1)1 with a special allegation he had inflicted great
bodily injury (§ 12022.7) and possession of cocaine (Health & Saf. Code, § 11350, count
2). The information also specially alleged Moore had suffered two prior serious or
violent felony convictions for aggravated assault within the meaning of section 667,
subdivision (a)(1) and the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-
(d)) and had served two separate prison terms for felonies (§ 667.5, subd. (b)).
Represented by counsel, Moore pleaded not guilty and denied the special allegations.

       2. Summary of Trial Evidence
       On February 22, 2012, Moore stabbed Breonne Tate in the back during a physical
altercation at their independent living facility in Los Angeles. Tate was transported to the
hospital for treatment, and Moore was taken into custody. As part of the booking
process, an officer conducted a strip search of Moore in a room designated for that
purpose. Following the search, the officer found a small plastic bag containing .023
grams of rock cocaine on a bench, inches from where Moore had been sitting during the
search.




1      Statutory references are to the Penal Code, unless otherwise indicated.
                                              2
       3. Verdict and Sentence
       The jury found Moore guilty of both simple assault, a lesser included offense of
assault with a deadly weapon, and possession of cocaine. In a bifurcated proceeding,
Moore admitted the prior conviction allegations.2
       Prior to sentencing, the trial court indicated it had read and considered the parties’
sentencing memoranda, the probation report reflecting Moore’s criminal record3 and
Moore’s motion to dismiss his prior strike convictions (§ 1385; People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, 504 (Romero)). In support of the Romero motion,
defense counsel argued Moore, who was 55 years old, suffered from longstanding drug
addiction, and his prior strike conviction should be dismissed so he could complete a
court-ordered drug treatment program on probation. The prosecutor argued because of
Moore’s violent criminal history and prior prison commitments, the motion should be
denied, and that, in any event, there was no evidence Moore was under the influence of
cocaine when he committed the offenses in this case. The court summarized Moore’s
criminal history, noting Moore had been continually involved in acts of violence since
1983 and denied the Romero motion.
       After brief additional argument by counsel, the court selected the upper term of
imprisonment for possession of cocaine, stating it found Moore’s “numerous convictions,
including state prison sentences, for crimes of violence” and Moore’s status as “either on
parole or probation at the time the [present] crime[s] were committed” to be aggravating
factors; and it did “not consider[] any factor mitigating at this time.” The court then


2     Moore admitted a 2000 conviction (L.A.S.C. case No. SA037654), as a prior strike
conviction and prior prison term enhancement; he admitted a 2006 conviction (L.A.S.C.
case No. BA302213), as a prior prison term enhancement.
3      The probation officer’s report showed Moore had five felony convictions for
aggravated assault, one misdemeanor conviction for disturbing the peace and for simple
assault and had served three prison commitments. At the time of the current assault,
Moore was on summary probation.
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imposed an aggregate sentence of seven years six months, consisting of six years (the
three-year upper term doubled under the three strikes law) for possession of cocaine, one
year for the prior prison term enhancement and six months in county jail for
misdemeanor assault.

                                        DISCUSSION
       Moore contends the trial court abused its discretion by imposing the upper term
sentence for possession of cocaine because the court failed to consider as mitigating
factors his long standing drug addiction, the small amount of cocaine found in his
possession and his lack of prior drug-related convictions.

       1. Standard of Review
       Courts have broad sentencing discretion, and we review a trial court’s sentencing
choices for abuse of that discretion. Discretion is abused if the sentencing decision was
arbitrary or irrational. (People v. Sandoval (2007) 41 Cal.4th 825; 847 (Sandoval).) A
trial court abuses its discretion if it relies upon circumstances that are not relevant to, or
that other otherwise constitute an improper basis for, the sentencing decision or fails to
exercise its discretion. (Sandoval, at pp. 847-848.) The burden is on the party attacking
the sentence to show the sentencing decision was irrational or arbitrary, and an appellate
court will not substitute its judgment for that of the trial court. (People v. Jones (2009)
178 Cal.App.4th 853, 861.) “Even if a trial court has stated 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.]’” (Ibid.)

       2. The Trial Court Did Not Abuse Its Discretion in Imposing the Upper Term
       Whether to impose the upper term is a decision resting in the trial court’s sound
discretion. (§ 1170, subd. (b).) In determining the appropriate term, the court may
consider the record in the case, the probation report, evidence introduced at the
sentencing hearing, and “any other factor reasonably related to the sentencing decision.”

                                               4
(Cal. Rules of Court, rule 4.420(b) 4.) The court “shall select the term which, in the
court’s discretion, best serves the interests of justice.” (§ 1170, subd. (b).)
       A trial court may base an upper term sentence upon any aggravating factor the
court deems significant, subject to specific prohibitions not at issue here. The court’s
discretion to identify aggravating factors is limited only by the requirement they be
reasonably related to the decision being made. (Sandoval, supra, 41 Cal.4th at p. 848.)
The court “shall state the reasons for its sentence choice on the record at the time of
sentencing.” (§ 1170, subd. (c); see also Sandoval, at pp. 846-847; rule 4.420(e).)
However, the court is not required “to cite ‘facts’ that support its decision or to weigh
aggravating and mitigating circumstances,” nor must it provide a “‘concise statement of
the ultimate facts that the court deemed to constitute circumstances in aggravation or
mitigation.’ [Citations.]” (Sandoval, at p. 847.)
       The trial court identified as aggravating factors Moore’s record of violent crimes,
consisting of numerous convictions for aggravated assault; his three prior prison term
commitments; and his probationary status at the time of the instant offenses. (Rule
4.421(b)(1), (b)(2), (b)(3), & (b)(4).) Moore does not dispute that these aggravating
factors are relevant and supported by the record. Indeed, the trial court could have
justified the imposition of the upper term on any one of these factors. (People v. Black
(2007) 41 Cal.4th 799, 816; accord: People v. Myles (2012) 53 Cal.4th 1181, 1221.)
Nonetheless, Moore asserts that the trial court’s failure to identify any mitigating factors
demonstrated that it failed to consider Moore’s longstanding drug addiction, the small
quantity of cocaine found in his possession and the absence of prior drug-related
convictions. Further Moore concluded that, had the court considered these mitigating
factors, it is reasonably likely it would have selected the middle or lower term sentence.
       The trial court expressly found that no factor was mitigating at the time of
sentencing; this finding demonstrates that the court evaluated the issue. The record
shows the court was aware of these factors: Moore’s drug addiction figured prominently


4      References to rule or rules are to the California Rules of Court.
                                               5
in his Romero motion; the court heard the trial testimony concerning the cocaine
possession offense; and it reviewed Moore’s criminal record prior to sentencing. On this
record, we must conclude the court considered, but rejected as mitigating his punishment,
the factors argued by Moore. The court was not bound to further explain its reasons for
the sentence. (See People v. Lai (2006) 138 Cal.App.4th 1227, 1258; People v. Zamora
(1991) 230 Cal.App.3d 1627, 1637.)
       Moore’s addiction, the amount of cocaine in his possession and lack of drug-
related convictions could be mitigating factors in the appropriate case. They do not
change the nature of Moore’s crime here (see rule 4.421(a)(1)). The record demonstrates
that his conduct was neither an isolated event nor a brief period of aberrant behavior (see
e.g. People v. Garcia (1999) 20 Cal.4th 490), but instead stands as part of a 30-year
history of aggression posing a threat to public safety (see rule 4.421(b)(1)). The trial
court made an individualized sentencing choice well within its discretion. This court will
not substitute its judgment for that of the trial court. (People v. Superior Court (Alvarez)
(1967) 14 Cal.4th 968, 978.)

                                         DISPOSITION
       The judgment is affirmed.




                                           ZELON, J.


We concur:




       PERLUSS, P. J.




       WOODS, J.

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