Filed 4/13/15 P. v. Bernal CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H040652
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS131466A)

         v.

PEDRO BERNAL,

         Defendant and Appellant.


         Defendant Pedro Bernal pleaded nolo contendere to carrying a loaded firearm
(Pen. Code, § 25850, subd. (a))1 and to evading a police officer (Veh. Code, § 2800.2,
subd. (a)). He was denied probation and sentenced to a total term of three years four
months in prison. On appeal, he argues that the trial court abused its discretion, because
it denied him probation solely because he smiled during the sentencing hearing.
         We affirm the judgment. The trial court articulated a valid reason for denying
probation. During the hearing, it stated it believed defendant would not be willing to
comply with the terms of probation, a conclusion that is adequately supported by the
record. Therefore, we find no abuse of discretion and no merit in defendant’s claim.




         1
             Further unspecified statutory references are to the Penal Code.
                       FACTUAL AND PROCEDURAL BACKGROUND
       The Offense2
       On July 23, 2013, several officers assigned to the Monterey County Joint Gang
Task Force saw a car with a front license plate that was not visible and a broken center
brake light traveling down a street. Officers attempted a traffic stop. At first, the car
came to a complete stop nearby. However, as officers exited their car and began to
approach, the car accelerated away. A chase ensued, and at some point, the car slowed
down for a passenger to jump out and run away. Shortly thereafter, officers found the car
abandoned but still running. A passerby informed officers that the driver of the car,
defendant, was hiding behind another car. Defendant was arrested after a foot chase. A
handgun was found in the car’s center console, and defendant admitted to being a
member of the Sureno criminal street gang when he was booked into jail.
       Procedural History
       On September 25, 2013, the Monterey County District Attorney’s office filed an
amended complaint charging defendant with a count of carrying a loaded firearm (§
25850, subd. (a); count 1) with the special allegations that he was actively participating in
a criminal street gang (id., subd. (c)(3)), that he was not the registered owner of the
firearm (id., subd. (c)(6)), and that he committed the crime for the benefit of, at the
direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). He was
also charged with a count of evading a police officer (Veh. Code, § 2800.2, subd. (a);
count 2) with the special allegation that he committed the offense for the benefit of, at the
direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)), a count



       2
        The factual circumstances of defendant’s offenses are not relevant to the issues
raised on appeal. We therefore provide only a brief recitation of the facts, which we take
from the probation officer’s report.


                                              2
of street terrorism (id., subd. (a); count 3), and a count of resisting, delaying, or
obstructing a public officer (§ 148, subd. (a)(1); count 4).
       On November 1, 2013, defendant pleaded nolo contendere to counts 1 and 2. He
also admitted the special gang allegations associated with each count. The plea was
entered on the condition he would receive no more than three years four months in
prison. The trial court had the discretion to grant felony probation, but probation was in
no way guaranteed.
       The December 18, 2013 Hearing
       On December 18, 2013, the trial court held a sentencing hearing. The probation
department had submitted a report recommending defendant be placed on felony
probation, which the People opposed. The People argued that defendant had prior
contacts with police and had acknowledged being a member of the Sureno criminal street
gang. Additionally, the People disagreed with the probation department’s assessment
that defendant would be a minimal threat to the community.
       During the hearing, the following colloquy occurred:
       “[THE COURT]: I’m going to go along with the recommendation in the
probation report and I’m going to give you probation, but I’m going to tell you right now
there is no reason that you couldn’t have just been sent to CDCR. And if you come back
here on a violation of probation that has anything at all to do with or sounds like it has
something to do with gang activity or more violence or more actions like that, I’m not
talking about drunk in public or something, you should expect to go off to the
Department of Corrections.
       “Your lawyer says you’re smart and he says this is a one time thing and that you
know that you’re on a fork in the road right here, and we’re going to find out, because
I’m going to go along with what the probation officer recommends.



                                               3
       “And the DA is adamantly opposed to letting you have probation. He thinks
you’re a menace to society and that you’re going to go out and screw up right away and
you’re going to hurt somebody, and that’s what he’s concerned about. And that’s clearly
a reasonable attitude to take.
       “So, I see you smiling. But I’m telling you that looking at what’s going on in here
and reading through this, his approach is perfectly reasonable. And if you think it’s
funny, then maybe he’s right. So, what are you smiling about?
       “[DEFENDANT]: Just about the probation recommendation. I’m going to be
with my family.
       “[DEFENSE COUNSEL]: It’s just--he’s very inarticulate, your Honor, but he’s
indicated that he doesn’t think that the dangerousness is a real reality in his mind.
       “[THE PEOPLE]: No. He’s a smart person, Judge.
       “[THE COURT]: So, you know, [defendant], I’m not going to sentence you
today. I’m sorry. I--watching you laugh and start to smile and laugh when I got to the
part where I was talking about how it made sense that you should go to Department of
Corrections [sic] and it was a reasonable recommendation makes me think that you’re not
getting the program. So I’m not going to sentence you today because I’m not sure that I
could give you a fair sentencing.”
       The December 20, 2013 Hearing
       Several days later, the court continued its sentencing hearing. The court had
received and reviewed an apology letter from defendant. Defendant had written it was
“not [his] intention to disrespect [the court] in any way” and that he was “smiling because
[he] was very excited to get out and make [his] family proud.”
       Thereafter, defense counsel made the following statement: “I’ve been
representing [defendant] here in this matter for quite some time. We’ve had a lot of
contact with him. And invariably, and always, he’s taken this matter seriously. It’s never

                                              4
been a laughing matter for him in any way. He’s pressed me hard on the questions and
issues that this case raises for him. [¶] I can tell you that he--the Court saw a smile on his
face. And I think he explained it to me because he heard the Court say that you were
going to follow the probation offer, was not in any way disrespectful to this court [sic].”
       However, after considering the letter submitted by defendant, and the statements
made by defense counsel and the People, the court ultimately decided to deny probation
and sentenced defendant to three years four months in prison.
       The court made the following comments:
       “[THE COURT]: All right. You know, [defendant], I was on the fence about how
to sentence you when you were here earlier in the week, and was essentially swayed by
the probation officer’s comments and the report that they thought you could benefit from
some probation. And yet when I watched you in court, you didn’t smile when I said I
was going to give you probation. You waited until I talked about the fact that the DA
wanted you to go to the prison, but I was inclined not to send you to prison, that I was
going to give you a chance to be on probation. So I’m just not confident that you care
enough about complying with the terms and conditions of probation to give you
probation, because that’s completely inconsistent with the timing of what we’re talking
about so--and I indicated to you before that I was--I thought that this--you could be
sentenced in either fashion, that there were reasons to sentence you either to prison or to
give you the probation that the probation department was attempting to give you a chance
at.
       “But having reflected on it for an extra couple of days, and how you approached
this matter, I don’t find this letter of apology by you today to be persuasive. And I’m not
going to grant you probation. Having reviewed the factors in aggravation and mitigation
and the Rules of Court, I don’t think you’re a reasonable candidate for probation, and I’m
not going to grant you probation in this case.”

                                              5
       Defendant’s trial counsel made the following objection: “Judge, for the record. I
don’t think that people should be sent to prison for a smile.” The trial court responded,
“That’s not why he’s going to prison. He’s going to prison because his attitude does not
convince me that he would be a good candidate for probation, that he would comply with
their terms and conditions, or that he would take it seriously.”
       Defendant appealed.
                                        DISCUSSION
       Defendant’s sole argument on appeal is that the trial court erroneously denied him
probation. He claims that although the court stated it had considered the factors in
aggravation and in mitigation as set forth under the California Rules of Court, the record
reflects that the court denied him probation solely for one improper reason: he smiled
during the sentencing hearing.
       “Probation is an act of leniency, not a matter of right” (People v. Walmsley (1985)
168 Cal.App.3d 636, 638, disagreed on another point in People v. Lafantasie (1986) 178
Cal.App.3d 758, 764) and is “generally reserved for convicted criminals whose
conditional release into society poses minimal risk to public safety and promotes
rehabilitation.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) “The sentencing
court has broad discretion to determine whether an eligible defendant is suitable for
probation and, if so, under what conditions.” (Ibid.)
       We review a court’s denial of probation for abuse of discretion. (People v.
Downey (2000) 82 Cal.App.4th 899, 909.) Under this standard, we presume the court
acted correctly unless it is clearly shown that its sentencing choice was arbitrary or
capricious, or exceeds the bounds of all reason. (People v. Hubbell (1980) 108
Cal.App.3d 253, 260; People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)
When determining whether a trial court abused its discretion by denying probation, we
consider whether there is sufficient or substantial evidence to support the court’s finding

                                              6
that a particular factor was applicable. (People v. Leung (1992) 5 Cal.App.4th 482, 506-
507.) A reviewing court must set aside a sentence where “it is reasonably probable that
the trial court would have chosen a lesser sentence had it known that some of its reasons
were improper.” (People v. Price (1991) 1 Cal.4th 324, 492 (Price).)
       The trial court, in deciding whether to grant or deny probation, must consider
statutory guidelines, including the safety of the public, the nature of the offense, the
interests of justice, the loss of the victim, and needs of the defendant. (§ 1202.7.)
California Rules of Court, rule 4.414 also sets forth certain criteria affecting a court’s
decision to grant or deny probation.3 These criteria include facts relating to the crime,
such as the “[t]he nature, seriousness, and circumstances of the crime as compared to
other instances of the same crime.” (Rule 4.414(a)(1).) The criteria also include facts
relating to the defendant, such as his prior record, his willingness to comply with the
terms of probation, whether he is remorseful, and the likelihood that he will be a danger
to others if not imprisoned. (Rule 4.414(b).) Additionally, in deciding whether to grant
or deny probation, a trial court may consider additional criteria not listed in the rules, so
long as those criteria are “reasonably related to the decision being made.” (Rule
4.408(a).) A trial court is generally required to state its reasons for imposing a prison
sentence and denying probation. (Rule 4.406(b)(2).)
       Defendant argues it is clear from examining the criteria set forth in rule 4.414 that
the court failed to consider the appropriate factors. Additionally, he claims it is clear
based on what transpired during the two sentencing hearings that the court denied him
probation solely because he smiled during the proceedings.
       We disagree. The trial court expressly stated it considered the factors in
aggravation and mitigation as set forth in the rules of court. Absent evidence to the


       3
           Further unspecified rule references are to the California Rules of Court.


                                               7
contrary, the court is presumed to have acted to achieve legitimate sentencing objectives.
(People v. Zaring (1992) 8 Cal.App.4th 362, 378.) Therefore, based on the statements
made by the court during the sentencing hearing, the record does not clearly show the
trial court relied on an improper factor when denying probation.
       Additionally, the court articulated reasons for its denial aside from defendant’s act
of smiling during the proceedings. In fact, the court expressly responded to defense
counsel’s objection on this point by clarifying it was not denying probation simply
because defendant smiled. The court stated it did not believe defendant would be willing
to comply with the terms of probation, a criteria expressly set forth in rule 4.414(b)(3).
There was sufficient evidence to support this conclusion.
       First, during the sentencing hearing on December 18, 2013, the People argued that
it appeared defendant had previously denied being an active member of the Sureno
criminal street gang. In the course of this instant offense, he had also allowed the
passenger of the vehicle to escape, which the People claimed showed a “willingness to
help other people avoid justice.”
       Second, the court also considered the assessment provided in the probation
department’s report. The report noted that defendant had a “marginal” prior performance
on probation, since he was on misdemeanor probation at the time he committed the
present offenses. The report also indicated defendant denied being an active member of a
criminal street gang but later admitted to being a member of the Sureno criminal street
gang when he was placed in the county jail. The report also asserted that although
defendant “readily accepted responsibility for his actions, placing the blame for his
erratic behavior on substance abuse . . . he fell short of fully taking into account the gang
element of the offense.”
       Ultimately, the probation report recommended the trial court grant probation.
However, “[t]he purpose of a probation report is to assist the sentencing court in

                                              8
determining an appropriate disposition. [Citation.] The court has the unquestioned
discretion to reject it in part or in toto.” (People v. Municipal Court (Lopez) (1981) 116
Cal.App.3d 456, 459.) Additionally, “ ‘[a] trial court may minimize or even entirely
disregard mitigating factors without stating its reasons.’ ” (People v. Zamora (1991) 230
Cal.App.3d 1627, 1637.) And, a “trial court need not articulate its reasons for rejecting
factors which would support the grant of probation.” (People v. Kronemyer (1987) 189
Cal.App.3d 314, 366, disapproved of on another ground in People v. Whitmer (2014) 59
Cal.4th 733, 742.) Therefore, there was support in the record for the court’s
determination that defendant would not be willing to comply with the terms of probation,
based on his failure to take full responsibility for the gang aspect of his crime and his
poor performance on misdemeanor probation.
       Furthermore, it is unclear whether defendant’s act of smiling, which the People
argue relates to his attitude, was an improper factor for the court to consider. As we
previously noted, a trial court may examine additional criteria not listed in the rules, so
long as those criteria are “reasonably related to the decision being made.” (Rule
4.408(a).) Defendant’s demeanor during the court proceedings can be perceived as being
reflective of his overall attitude. Conceivably, his attitude can be construed as related to
the sentencing decision being made. After all, whether a defendant appreciates the
severity and importance of court proceedings may be indicative of whether he is
remorseful (rule 4.414(b)(7)) and whether he is willing to comply with the terms of
probation (rule 4.414(b)(3)).
       However, we need not decide whether defendant’s smile was necessarily an
improper factor for the court to consider. “The decision to grant or deny probation
requires consideration of all the facts and circumstances of the case.” (People v.
Birmingham (1990) 217 Cal.App.3d 180, 185.) As we previously determined, the court
specifically said it was denying probation because it found defendant would not be

                                              9
willing to comply with the terms of probation. This conclusion was grounded in support
in the record. Furthermore, this single factor was “a sufficient basis for a sentencing
choice.” (People v. Castellano (1983) 140 Cal.App.3d 608, 615.) There may have been
mitigating factors that would have supported a grant of probation, but as the reviewing
court we may not substitute our judgment for that of the trial court. Nor should we
reweigh the evidence or factors the trial court considered.4
       Additionally, even if defendant’s smile was an improper factor to consider, it is
not “it is reasonably probable that the trial court would have chosen a lesser sentence had
it known that . . . its reason[] [was] improper.” (Price, supra, 1 Cal.4th at p. 492.) The
trial court reiterated during the sentencing hearing it was denying probation not because
defendant smiled, but because it did not think defendant would be inclined to adhere to
the proposed probationary terms.
       Furthermore, in denying defendant probation, the court impliedly found that the
factors against probation outweighed the factors in favor of probation. This finding was
not arbitrary, capricious, or an abuse of discretion. (See People v. Downey, supra, 82
Cal.App.4th at pp. 909-910.)
                                       DISPOSITION
       The judgment is affirmed.




       4
          In his opening brief, defendant says his incarceration as a first-time felon for
over three years is a fiscally irresponsible choice, because it costs tens of thousands of
dollars to imprison a felon per year. We do not take the financial burden imprisonment
imposes on the state lightly. However, the costs to the state for imprisoning a defendant
is not a consideration the trial court takes into account when determining whether to grant
or deny probation, such as the safety of the public, the nature of the offense, the interests
of justice, the loss of the victim, and needs of the defendant. (§ 1202.7.)


                                             10
                             Premo, J.




      WE CONCUR:




             Rushing, P.J.




             Elia, J.




People v. Bernal
H040652
