Filed 7/1/14 P. v. Welch CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,

         Plaintiff and Respondent,                                                    F067513

                   v.                                                    (Super. Ct. No. F13901657)

COLLETTE MARIE WELCH,                                                             OPINION

         Defendant and Appellant.



                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Fresno County. Alan M.
Simpson, Judge.
         Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda
Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

        Before Cornell, Acting P.J., Poochigian, J., and Detjen, J.
       Appellant, Collette Marie Welch, pled no contest to unlawful driving or taking of
a vehicle (count 1/Veh. Code, § 10851, subd. (a)) and receiving stolen property
(count 2/Pen. Code, § 496, subd. (a)). On appeal Welch contends the court abused its
discretion when it imposed the upper term. We affirm.
                                          FACTS
       On February 15, 2013, at approximately 8:30 a.m. after a California Highway
Patrol officer spotted a stolen Dodge Avenger in a motel parking lot, an anti-auto theft
team set up surveillance of the car. A short time later, Aaron Schwabenland parked a
stolen Honda in the lot and walked to room 256. At 11:05 p.m. Schwabenland came out
of the room and was arrested. Schwabenland admitted knowing the Honda and its license
plates were stolen, but denied stealing them.
       Officers then went into room 256 and contacted Welch who admitted she had been
driving the stolen Avenger and knowing the car was stolen. Welch also told the officers
a friend had given her the keys to the car and that they were in her purse.
       On February 20, 2013, the district attorney filed a complaint charging Welch with
unlawful driving or taking of a vehicle (count 1/Veh. Code, § 10851, subd. (a)) and
receiving a stolen vehicle (count 2/Pen. Code, § 496d, subd. (a)), and charging
codefendant Schwabenland with the same two counts (counts 3 & 4) and one count of
receiving stolen property (count 5/Pen. Code, § 496, subd. (a)).
       On March 6, 2013, after count 2 was amended to allege that Welch received stolen
property, Welch pled no contest to counts 1 and 2.
       On May 13, 2013, pursuant to the court’s directive, the probation officer filed a
supplemental report. According to this report, when officers arrested Welch, in her purse
they found several pieces of paper containing personal information for several people and
a GPS unit that had been taken from a stolen vehicle. In her wallet the officers found
four checks that belonged to Eric Gimm and Kara Vincent. In the motel room they found

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two laptops, three cell phones, folders containing personal information for several
individuals, a photocopied driver’s license with Welch’s photo and personal information
for Desiree Tigson, several checks from a trucking company, and several photocopied
identification cards and Social Security cards.
       Additionally, Welch told the officers she had “been doing identity theft for the
past two or three years.” She also admitted that “people” would bring her information
that she used to open credit card accounts and online accounts at stores like Wal-Mart
and Lowe’s. Welch would have items shipped to the store or a friend’s address and
eventually sell them.
       Pursuant to a further directive by the trial court, on June 19, 2013, the probation
department filed a second supplemental probation report that contained Welch’s complete
criminal history. According to this report, as a juvenile Welch was adjudicated in 2003
of possession of a controlled substance and being under the influence of a controlled
substance. As an adult, Welch was convicted in 2008 of possession of opium pipes
(Health & Saf. Code, § 11364) and placed on misdemeanor probation for three years. In
2011, Welch was convicted of possession of a bad check with the intent to defraud (Pen.
Code, § 475, subd. (b)) and second degree burglary (Pen. Code, §460, subd. (b)) and was
placed on felony probation for three years. Welch also violated her misdemeanor
probation by committing those offenses. In 2012 and 2013 Welch violated her felony
probation twice and failed to appear in court twice in that matter. Welch was on felony
probation when she committed the instant offenses.
       The report listed the following as aggravating circumstances: (1) Welch’s prior
convictions as an adult or sustained petitions in juvenile delinquency proceedings were
numerous or of increasing seriousness (California Rules of Court, rule 4.421(b)(2));1

1      All further references to rules refer to the California Rules of Court.


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(2) the manner in which Welch committed her offenses indicated planning,
sophistication, or professionalism (rule 4.421(a)(8)); (3) Welch was on probation or
parole when she committed the underlying offenses (rule 4.421(b)(4)); and (4) her prior
performance on probation or parole had been unsatisfactory (rule 4.421(b)(5)). The
report listed as a mitigating circumstance Welch’s admission of guilt prior to arrest or at
an early stage of the criminal process (rule 4.423(b)(3)). It recommended the court
impose concurrent middle terms of two years on each count.
       On June 19, 2013, at Welch’s sentencing hearing the court imposed the aggravated
term of three years on count 1 and ordered her to serve 18 months in custody and 18
months on supervised release. In imposing the aggravated term, the court cited Welch’s
two sustained juvenile petitions and two convictions as an adult, her probationary status
when she committed the underlying offenses, her prior poor performance on probation,
and the planning and sophistication involved in her current offenses. Although the court
did not believe there were any mitigating circumstances, it found that to the extent there
were, the aggravating circumstances outweighed the mitigating ones. The court also
sentenced appellant to a concurrent middle term of two years on count 2.
                                      DISCUSSION
       Welch contends the court abused its discretion when it imposed the aggravated
term because: (1) it gave insufficient weight to mitigating factors; (2) Welch’s juvenile
adjudications and adult convictions “were of limited application” in imposing the
aggravated term; (3) the court discussed the “absolute length” of the terms it could
impose on her unlawful driving or taking of a vehicle offense in arriving at its sentencing
choice; and (4) the probation officer recommended the middle term based on the same
factors.
       “Generally, determination of the appropriate term is within the trial court’s broad
discretion [citation] and must be affirmed unless there is a clear showing the sentence

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choice was arbitrary or irrational [citation]. ‘Sentencing courts have wide discretion in
weighing aggravating and mitigating factors [citations], and may balance them against
each other in qualitative as well as quantitative terms.’ [Citation.] One factor alone may
warrant imposition of the upper term [citation] and the trial court need not state reasons
for minimizing or disregarding circumstances in mitigation [citation].” (People v. Lamb
(1988) 206 Cal.App.3d 397, 401-402.) “A remand for resentencing is required only
where it is reasonably probable a different result would have occurred had the improper
factor not been considered. [Citation.]” (People v. Kellett (1982) 134 Cal.App.3d 949,
962-963.)
       Of the four aggravating circumstances found by the court, Welch challenges only
the court’s reliance on her juvenile adjudications and adult convictions to impose the
aggravated term. She contends that her sustained petitions and adult convictions are of
limited application for sentencing purposes because she only had two sustained petitions
as a juvenile and her two prior adult convictions arose out of the same case. However,
pursuant to rule 4.421(b)(2) the court was entitled to consider Welch’s numerous
convictions and juvenile adjudications as an aggravating circumstance. Further, three or
more juvenile adjudications and/or adult convictions are numerous within the meaning of
rule 4.421(b)(2). (Cf. People v. Searle (1989) 213 Cal.App.3d 1091, 1098.)
       Welch also contends the court gave insufficient consideration to the following
circumstances that she claims were mitigating: (1) Welch’s relatively youthful age of 25;
(2) her remorse; (3) her substance abuse problem; (4) her education and intelligence
which provided her with more intellectual resources to apply to her reformation;2 and
(5) her husband’s suicide that occurred after her arrest for possession of an opium pipe.


2     Welch attended West Hills College for three years and earned an Associate of Arts
Degree.


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However, as noted above, the court was entitled to balance the mitigating circumstances
qualitatively against the aggravating circumstances and it was not required to state
reasons for minimizing or disregarding circumstances in mitigation.3 Further, since the
court had discretion on how much weight to give each mitigating circumstance or to
determine whether the circumstance had any mitigating effect, there is no merit to
Welch’s contention that the court gave insufficient weight to the above-noted
circumstances that she claims were mitigating.
       Moreover, even assuming the court improperly considered the “absolute length” of
the terms it could impose on her unlawful driving or taking of a vehicle offense, the court
found four aggravating circumstances and its findings are amply supported by the record.
Since only one circumstance is necessary to justify an upper term and the court did not
find any mitigating circumstances, Welch could not have been prejudiced by the court’s
consideration of this alleged improper factor in imposing the upper term.
       Further, since the probation officer’s report is advisory and not binding on the
court (People v. Server (1981) 125 Cal.App.3d 721, 728), the report’s recommendation of
the middle term is not a basis for challenging the court’s imposition of the aggravated
term. Thus, we conclude the court did not abuse its discretion when it imposed the
aggravated term on Welch’s unlawful driving or taking of a vehicle conviction.
                                     DISPOSITION
       The judgment is affirmed.




3      Nevertheless, we note the record supports the court’s implicit finding that Welch’s
early plea was not a mitigating circumstance because, as noted by the prosecutor, Welch
entered her plea in order to avoid the filing of additional charges based on supplemental
crime reports that had not been received from a detective.


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