Filed 8/1/16 P. v. Cramer CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Butte)
                                                            ----




THE PEOPLE,                                                                                  C080611

                   Plaintiff and Respondent,                                    (Super. Ct. No. CM041806)

         v.

LANDON RICHARD CRAMER,

                   Defendant and Appellant.




         Defendant Landon Richard Cramer pleaded guilty to corporal injury upon a
girlfriend (Pen. Code, § 273.5, subd. (a)),1 willfully making criminal threats (§ 422, subd.
(a)), and willfully resisting a peace officer (§ 148, subd. (a)(1)). He also admitted to
committing these offenses while released from custody on bail or his own recognizance.
(§ 12022.1.) The trial court sentenced defendant to an aggregate term of four years eight
months in prison.



1   Undesignated statutory references are to the Penal Code.

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       On appeal, defendant contends the trial court abused its discretion by denying his
request for probation. Defendant further contends the trial court abused its discretion by
imposing the upper term on the corporal injury offense and a consecutive eight month
sentence on the criminal threats offense. We conclude the trial court did not err, and
therefore affirm the judgment.
                                   I. BACKGROUND2
       In August 2014, the police were dispatched to the victim’s home in response to a
report of a domestic dispute. The reporting party advised the dispatcher that he had been
awakened by the sound of defendant punching the victim.
       The police officer that responded to the victim’s home observed several
lacerations on the victim’s right cheek, a large laceration on her left cheek, multiple
bruises on her face, a large bruise on her buttocks, and visible red marks and bruising
around her neck. The victim reported that she and defendant had been involved in a
romantic relationship for approximately two years. She stated that they had separated but
remained in an “on and off” again relationship for approximately three months. The
victim also reported that defendant had strangled her and punched her multiple times in
the face, rib cage, and buttocks. She further reported that defendant had physically
abused her in the past, had previously threatened to kill her, and had recently strangled
her.
       Around an hour after the attack, defendant sent the victim a text message stating:
“You have 12 hours to find me, before I find you.” The message included several
“ ‘emoji’ images of bombs, guns, knives, needles, and [a] fork and knife.” Defendant
sent another text message stating: “12 hours . . ., no one cheats on me.” He also sent a



2 During the plea hearing, defendant stipulated that the facts contained in the probation
report provided the factual basis for his guilty pleas. The factual statement in the
probation report serves as the basis for our statement of facts.

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message that said: “Better not be talking about this with [the victim’s roommate] or she
will be involve[ed] too.”
        As the police were conducting interviews at the victim’s home, defendant was
observed driving nearby. Police officers pursued defendant but were unable to apprehend
him, as he pulled into an apartment complex and fled on foot. Later that day, defendant
was arrested at his residence.
        In November 2014, an information was filed, charging defendant with one count
of corporal injury upon a girlfriend (§ 273.5, subd. (a)—count one), two counts of
willfully making criminal threats (§ 422, subd. (a)—counts two and three), and one count
of willfully resisting a peace officer (§ 148, subd. (a)(l)—count four). It was further
alleged that at the time defendant committed these offenses he was released from custody
on bail or his own recognizance for a case in Santa Clara County (case No. C1235435).
(§ 12022.1.)
        Pursuant to a negotiated plea, defendant pleaded guilty to counts one, two, and
four, and admitted the section 12022.1 allegations. The trial court sentenced defendant to
an aggregate term of four years eight months in prison. The court imposed and stayed an
additional two years for the enhancement, pending resolution of the Santa Clara County
case.
        Defendant filed a timely notice of appeal.

                                    II. DISCUSSION
A.      Denial of Probation
        Defendant contends the trial court erred by denying his request for probation. We
disagree.
        “ ‘Probation is generally reserved for convicted criminals whose conditional
release into society poses minimal risk to public safety and promotes rehabilitation.
[Citations.] The sentencing court has broad discretion to determine whether an eligible
defendant is suitable for probation and, if so, under what conditions. [Citations.]’ ”

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(People v. Olguin (2008) 45 Cal.4th 375, 379.) The defendant bears a heavy burden
when attempting to show an abuse of discretion. (People v. Aubrey (1998)
65 Cal.App.4th 279, 282.)
        “In reviewing [a trial court’s determination whether to grant or deny probation,] it
is not our function to substitute our judgment for that of the trial court. Our function is to
determine whether the trial court’s order granting [or denying] probation is arbitrary or
capricious or exceeds the bounds of reason considering all the facts and circumstances.”
(People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 825 (Du).) The primary
considerations in determining whether to grant probation are: “ ‘the nature of the
offense; the interests of justice, including punishment, reintegration of the offender into
the community, and enforcement of conditions of probation; the loss to the victim; and
the needs of the defendant.’ [Citation.]” (People v. Carajal (1995) 10 Cal.4th 1114,
1120; see also Cal. Rules of Court, rule 4.414 [listing the criteria affecting the decision to
grant or deny probation].)3
        At the outset of the September 16, 2015, sentencing hearing, the trial court
indicated that it had read and considered, among other things, the original and
supplemental probation reports, the section 1203 diagnostic evaluation, defendant’s
statement regarding probation and mitigation, and the supplemental brief to defendant’s
statement regarding probation and mitigation. The probation report recommended that
probation be denied based on the following factors: (1) the nature, seriousness, and
circumstances of the offense as compared to other instances of the same crime (rule
4.414(a)(1)); (2) the vulnerability of the victim (rule 4.414(a)(3)); (3) the substantial
physical and emotional impact to the victim (rule 4.414(a)(4)); (4) the offense was not




3   Undesignated rule references are to the California Rules of Court.

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committed because of an unusual circumstance and was likely to reoccur4 (rule
4.414(a)(7)); and (5) the substantial likelihood that defendant would be a danger to others
if he were not imprisoned (rule 4.414(b)(8)). Following the section 1203 diagnostic
evaluation, the probation officer submitted a supplemental report, stating that there was
no change in the sentencing recommendation. The supplemental report noted that while
the staff psychologist found no significant risk of violence by defendant if probation were
granted, the psychologist also determined that defendant’s judgment was immature and
impulsive. The report further noted that the correctional counselor who issued the report
and the associate warden that reviewed it both recommended defendant serve a prison
term.
        After hearing the parties’ arguments, the trial court denied defendant’s request for
probation, citing the following factors: (1) the nature, seriousness, and circumstances of
the offense as compared to other instances of the same crime (rule 4.414(a)(1)); (2) the
vulnerability of the victim (rule 4.414(a)(3)); (3) defendant inflicted physical and
emotional injury (rule 4.414(a)(4)); (4) defendant was an active participant in the offense
(rule 4.414(a)(6)); and (5) the likelihood defendant would be a danger to others if he was
not imprisoned (rule 4.414(b)(8)). On this record, we conclude the trial court did not
abuse its discretion in denying defendant’s request for probation. The record reflects the
trial court considered valid criteria in determining that defendant was not suitable for
probation. Defendant failed to show that the trial court’s decision was arbitrary,
capricious, or exceeded the bounds of reason under the circumstances of this case. (Du,
supra, 5 Cal.App.4th at p. 825.)




4 The probation report noted that defendant had engaged in an ongoing pattern of abuse,
including strangling the victim on numerous occasions.

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B.     Sentence Imposed
       Defendant contends the trial court erred by imposing the upper term on the
corporal injury offense and a consecutive eight month sentence on the criminal threats
offense. We disagree.
       A trial court’s sentencing decision is reviewed for abuse of discretion. (People v.
Sandoval (2007) 41 Cal.4th 825, 847.) A court’s choice to select an upper term is
justified if it finds even one aggravating factor. (See People v. Black (2007) 41 Cal.4th
799, 814.) “Aggravating circumstances include those listed in the sentencing rules, as
well as any facts ‘statutorily declared to be circumstances in aggravation’ ([rule]
4.421(c)) and any other facts that are ‘reasonably related to the decision being made.’
([rule] 4.408(a).)” (Id. at p. 817.) A trial court only abuses its discretion when “its
[sentencing] decision is so irrational or arbitrary that no reasonable person could agree
with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.) Absent a clear showing that
the trial court’s sentencing decision was irrational or arbitrary, we presume a trial court
“ ‘ “to have acted to achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set aside on review.” ’ ” (Id. at
pp. 376-377.)
       Here, the trial court imposed the upper term on the corporal injury offense because
it found the circumstances in aggravation outweighed the circumstances in mitigation.5
In support of this determination, the court cited numerous aggravating circumstances: (1)
the crime involved great violence, threat of great bodily harm, and other acts disclosing a
high degree of cruelty, viciousness or callousness (rule 4.421(a)(1)); (2) the victim was



5  The probation officer recommended the trial court impose the upper term on the
corporal injury offense because the circumstances in aggravation—the victim’s
vulnerability (rule 4.421(a)(3)) and defendant’s violent conduct, including prior incidents
in which he strangled the victim (rule 4.421(a)(1) & (b)(1))—outweighed the
circumstances in mitigation—defendant had no prior criminal record (rule 4.423(b)(1)).

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particularly vulnerable (rule 4.421(a)(3)); (3) defendant threatened witnesses (rule
4.421(a)(6)); (4) defendant took advantage of a position of trust or confidence to commit
the offense (rule 4.421(a)(11)); and (5) defendant engaged in conduct indicating that he is
a serious danger to society (rule 4.421(b)(1)). In mitigation, the trial court found that
defendant had no prior criminal history (rule 4.423(b)(1)), and he expressed remorse and
took responsibility for his conduct (rule 4.423(b)(3)).
       We conclude the trial court did not abuse its broad discretion in imposing the
upper term on the corporal injury offense and a consecutive eight month sentence on the
criminal threats offense. The record reflects the trial court found five aggravating
circumstances and only two mitigating circumstances. On this record, defendant failed to
clearly show that the trial court’s sentencing decision was so irrational or arbitrary that no
reasonable person could agree with it. (People v. Carmony, supra, 33 Cal.4th at p. 377.)
                                    III. DISPOSITION
       The judgment is affirmed.

                                                   /S/

                                                  Renner, J.



We concur:



/S/

ROBIE, Acting P. J.



/S/

DUARTE, J.


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