Filed 11/25/15 P. v. Smith 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C076369

                   Plaintiff and Respondent,                                     (Super. Ct. No. 13F06235)

         v.

DOUGLAS SMITH,

                   Defendant and Appellant.




         Sentenced to the upper term after he pleaded no contest to driving under the
influence of alcohol and admitted a similar prior felony conviction, defendant Douglas
Smith contends the trial court wrongly disregarded his claim alcoholism was a mitigating
factor. He also requests correction of the abstract of judgment to reflect his conviction
for driving with a suspended license is a misdemeanor. We order the abstract of
judgment corrected and otherwise affirm.




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                  FACTUAL AND PROCEDURAL BACKGROUND
       Defendant’s Plea
       A felony complaint charged defendant with driving while under the influence of
alcohol (count one; Veh. Code, § 23152, subd. (a)), with a blood-alcohol content of 0.08
percent or more (count two; Veh. Code, § 23152, subd. (b)), and a misdemeanor, driving
while his license was suspended for driving while under the influence (count three; Veh.
Code, § 14601.2, subd. (a)). As to counts one and two, the complaint alleged defendant
had a felony prior conviction for driving while under the influence.
       Defendant pleaded no contest to all counts and admitted the felony prior. The
prosecutor stated the factual basis for the plea: “On or about September 3rd, 2013, in the
County of Sacramento, the defendant was seen driving his vehicle and was stopped for
traffic reasons. He admitted to drinking too much; said that the failed sobriety tests
would basically be pointless. He was a .22 by breath, .23 by blood. [¶] He does have a
prior felony conviction of a violation of Vehicle Code section 23152(a) from February
18th, 2005, in the County of Sacramento. [¶] He was also found to be driving on a
suspended license for [the 2005] prior DUI.”
       The Probation Report
       The probation report recommended a midterm sentence of two years in state
prison. The report identified two circumstances in aggravation: defendant’s prior
convictions as an adult were numerous or of increasing seriousness (Cal. Rules of Court,
rule 4.421(b)(2)),1 and defendant’s prior performance on probation was unsatisfactory
(rule 4.421(b)(5)). The report found no circumstances in mitigation.
       As to defendant’s current offense, according to the police report, defendant said he
just came from a bar where he consumed five mixed drinks. He told the officer: “ ‘We




1      Undesignated references to rules are to the California Rules of Court.

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both know I am [obscenity], because I had too much to drink and should not have been
driving.’ ”
       At the time of the current offense, defendant was out on bail for a driving while
under the influence offense in Marin County. His blood-alcohol content in that case was
0.17 percent.2 The matter was charged as a felony based on defendant’s priors (which
included the felony driving while under the influence prior conviction alleged here, as
well as similar misdemeanors in 2000). Defendant pleaded guilty in Marin County on
August 16, 2013. Sentencing was pending when he committed the current offense.
       In the 2005 felony driving while under the influence case, defendant was granted
five years of formal probation, including the requirements of participating in a drug
rehabilitation program and completing a driving while under the influence second
offender program called SB-38. So far as the record showed, he did not complete the
SB-38 program. On January 12, 2009, defendant’s probation officer received verification
that defendant was terminated from that program. On a probation home visit in July
2009, defendant was found to possess alcohol and cocaine. He admitted to snorting
cocaine a few days earlier and to driving without a valid license. He was arrested and
booked for violating probation. His probation was terminated on May 7, 2010.
       Defendant’s risk to reoffend was assessed as “medium.” He showed “very low
risk/needs in the areas of companions, leisure/recreation, pro[-]criminal
attitude/orientation and antisocial pattern; low risk/needs in the area of family/marital;
medium risk/needs in the areas of criminal history and education/employment; and high
risk/needs in the area of alcohol/drug problem.”




2      At the sentencing hearing, the prosecutor stated she did not file an amended
complaint, which alleged an out-on-bail enhancement, because defendant decided to
plead before the preliminary hearing.

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       Defendant was 56 years old. He had a high school education. He was separated,
with children, aged 15, 16, and 38. His occupation was “pressure washer.” He supported
two persons with the income from his employment.

       “Statement in Mitigation and Correction of the Probation Report”
       Defendant requested a suspended three-year sentence and a grant of five years of
probation, including alcohol counseling and rehabilitation.3 He cited two circumstances
in mitigation: he acknowledged wrongdoing before arrest (rule 4.423(b)(3)), and his
alcoholism was a mental or physical condition that significantly reduced culpability for
the crime (rule 4.423(b)(2)). He did not cite authority for the latter proposition.
       Defendant conceded the factual basis for the factors in aggravation cited by the
probation report, but asserted those factors were “not as aggravating as the Probation
Officer claimed in his report to the court.”
       According to defendant, aside from the statutory circumstances in mitigation,
“[t]he most important factor . . . is that he is the single father and sole responsible parent
for his fifteen[-]year[-]old daughter [J].” Quoting from letters in defendant’s support
which are attached to the statement in mitigation, defendant noted he raised J. on his own
since infancy. Despite early health troubles, J. had become a high school and club
volleyball player. Defendant’s life revolved around her. He helped coach her club team
and attended every event in which she participated. In the last year, he lost $45,000 in
investments due to a business partner’s deception, which put him under extreme pressure
as J.’s sole provider. In addition to his regular employment, he did many side jobs to
help support J. and himself. He also did a great deal of fundraising and charitable work.




3      However, under the heading “Law and Argument,” he asserted in a subheading the
court should sentence him to two years, which he called the low term. In the body of the
argument, he asserted the court should impose “a sentence of probation to be served in
the Sacramento County Jail.”

                                               4
Finally, he committed himself to remaining alcohol-free, attended an orientation for a
live-in rehabilitation center, and wanted to follow that up by taking his first class there in
March 2014.
       Sentencing
       At the sentencing hearing, defense counsel asserted defendant’s daughter J. was
born with a deformity that required seven surgeries before the age of two and seven more
afterward. Defendant’s ex-wife abandoned the family soon after J.’s birth. Defendant’s
driving while under the influence convictions began in 2000, the year after J. was born.
The financial and emotional burden of coping with J.’s problems on his own had caused
the stress which led him into binge drinking. He recognized he was desperately in need
of rehabilitation and treatment and was willing to do anything so as not to be taken away
from J. Therefore, the trial court should suspend imposition of sentence and grant
defendant five years of probation.
       The prosecutor suggested defendant was not eligible for probation barring unusual
circumstances. There were none here. Defendant’s current conviction is his seventh
driving while under the influence conviction, and he committed it while awaiting
sentencing on another. He committed three driving while under the influence offenses in
2000 and others in 2002, 2005, and 2012, before his current case in 2013. He could not
continue to excuse his conduct by blaming events that happened 15 years ago. When
given the chance to enter an alcoholism program on probation for one of his driving
while under the influence convictions, he failed to complete it despite repeated reminders.
He was terminated from that probation. He then incurred the Marin County driving while
under the influence conviction in 2012, approximately nine months before the current
offense. In the current case, he admitted he knew he was too drunk to drive and yet drove
anyway. This was an aggravating factor. He might be concerned about how his sentence
would affect his daughter’s life, but he was unconcerned about how getting behind the
wheel with a 0.23 percent blood-alcohol content might affect somebody else’s life. He

                                              5
was still not taking responsibility for his acts. His criminal history and his disregard for
public safety warranted the upper term.
       Defense counsel claimed defendant said he completed the alcoholism program.
The trial court noted the probation report said defendant was “terminated” from the
program, which had to mean, unless defendant had contrary evidence, he did not
complete it. Given the chance to speak, defendant insisted he completed the program and
that he had a certificate from Kaiser. He also stated that the DMV and/or the “MAAP”
program should have documentation indicating he had completed the program.
       The trial court ruled:
       “[T]he probation report describes the facts of the offense, to include the
Defendant’s admission that he had too much to drink, he should not have been driving,
but it did not list this as one of the circumstances in mitigation, the fact the Defendant had
voluntarily acknowledged wrongdoing before arrest or at an early stage of the
proceedings, pursuant to [rule] 4.423(e)(3).
       “I do -- I will consider this as mitigation, along with the People’s arguments as to
why it shouldn’t be. Quite frankly, it cuts both ways, but I think it matches the
requirements of being a factor in mitigation.
       “The Defendant’s request to have the report corrected to show that as a factor in
mitigation he’s an alcoholic and suffers from a mental and physical condition, pursuant
to [rule] 4.423(b)(2) is denied.
       “There is no authority nor factual record to support such an assertion.
       “I will consider, and have considered, the Defendant’s positive contributions to the
community, his close relationship with his daughter, her long recovery from birth-related
medical problems, as well as future care needs, and her reliance on him for financial
support.
       “The Defendant is not eligible for probation, pursuant to Penal Code Section
1203(e)(4), and I find no unusual circumstances that would make him eligible.

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       “The Defendant has a prior record of criminal conduct that is numerous and of
increasing seriousness, including, but not limited to, three prior DUI offenses before
2005, a felony DUI offense in 2005.
       “This is your third [sic] DUI conviction, and your blood alcohol content was high,
at a .23.
       “And this occurred after you had already entered a plea to DUI charges in Marin
County Superior Court, which have since been withdrawn. [Sic.]
       “The Defendant has numerous and multiple opportunities to turn away from
alcohol and not drive under the influence.
       “I agree with probation that the prior performance on probation has been
unsatisfactory. Even assuming there is a dispute over whether he actually completed the
SB-38 Program, the other factors indicating unsatisfactory performance are undisputed.
       “The letters submitted by friends and by your ex-wife are very moving. They
emphasize your great relationship with your daughter.
       “This case is not about your daughter. Moreover, it’s important that as your
daughter has been to your life [sic] and all the things that I considered in these letters and
your counsel’s statements this morning, as dedicated and devoted as you are to her and to
these other worthy causes, you got back in the car and drove again while pretty drunk.
       “I mean, there’s driving under the influence and there’s drunk driving. That was
drunk driving. And you had to have known the full consequences of doing so.
       “I think what’s also a concern is driving on a suspended license. That means
nothing that we do, that the courts do, that law enforcement does is working. Your
license is taken away, and you drive anyway.
       “And in your counsel’s statements about your phone calls daily, that you will do
anything to avoid going to prison, I believe it. I believe you, that you would do anything
to avoid going to prison.



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        “I . . . just don’t see how that is going to not be a danger to the community . . .
given the past history.
        “I find that . . . there is a likelihood that if you’re not imprisoned, you’ll be a
danger to others and to the community.
        “I am adopting the circumstances in aggravation, as stated in the amended
probation report.
        “Probation is denied.
        “It is the judgment and sentence of the Court as to Count 1, a violation of Vehicle
Code Section 23152(a), that you will serve the upper term of three years in state prison.”
(Italics added.)
                                         DISCUSSION
                                                I
        Defendant contends he “was denied due process and his Sixth Amendment right to
the effective assistance of counsel when the court improperly disregarded an important
mitigating factor.” (Capitalization omitted.) We disagree. The court did not improperly
disregard any mitigating factor, and defendant was not deprived of due process or the
right to the effective assistance of counsel.
        “When a judgment of imprisonment is to be imposed and the statute specifies
three possible terms, the choice of the appropriate term shall rest within the sound
discretion of the court. . . . In determining the appropriate term, the court may consider
the record in the case, the probation officer’s report, other reports, . . . and statements in
aggravation or mitigation submitted by the prosecution, the defendant, or the victim, . . .
and any further evidence introduced at the sentencing hearing. The court shall select the
term which, in the court’s discretion, best serves the interests of justice. The court shall
set forth on the record the reasons for imposing the term selected . . . .” (§ 1170, subd.
(b).)



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       “ ‘Sentencing courts have wide discretion in weighing aggravating and mitigating
factors [citations] . . . . We must affirm unless there is a clear showing the sentence
choice was arbitrary or irrational.’ [Citation.]” (People v. Avalos (1996) 47 Cal.App.4th
1569, 1582.) A single valid aggravating factor justifies the upper term. (People v. Steele
(2000) 83 Cal.App.4th 212, 226.)
       Here, the trial court relied on the aggravating factors cited by the probation report:
defendant’s convictions were numerous and of increasing seriousness, and his prior
performance on probation was unsatisfactory. The record supports both factors, and
defendant does not attempt to show that either was inapplicable. Thus, the court’s
sentence choice was not facially arbitrary or irrational, and imposition of the upper term
was well within the court’s discretion.
       Defendant asserts, however, the trial court did not exercise its discretion in an
informed manner because it did not properly consider the “mitigating factor” of
alcoholism. Citing the court’s statement that “ ‘[t]here is no authority nor factual record
to support [the] assertion’ ” that defendant’s alcoholism was a mitigating physical or
mental condition under rule 4.423(b)(2), defendant claims the court erred because
appellate decisions have held that alcoholism can come within the rule and the record
clearly shows defendant is an alcoholic. Defendant is mistaken.
       The trial court’s statement as to authority was literally correct: defendant did not
cite any authority for his claim (other than the rule itself, which does not mention
alcoholism) either in his written statement in mitigation or his oral argument. And the
court did not dispute defendant is an alcoholic. Rather, the court noted defendant had not
sought or pursued treatment in the course of 15 years of repeated driving while under the
influence convictions, and in the current case, he admitted he drove with the knowledge




                                              9
at the time of the offense he was too drunk to drive safely.4 In other words, the court
properly found there was no “factual record to support” treating defendant’s alcoholism
as a mitigating factor.
       Defendant now relies on People v. Simpson (1979) 90 Cal.App.3d 919 (Simpson),
which he calls “[t]he lead case in California on the use of alcoholism as a factor in
mitigation.” His reliance is misplaced.
       This court observed in People v. Reyes (1987) 195 Cal.App.3d 957 (Reyes): “The
Simpson case does not hold that alcoholism must always be considered as a mitigating
factor. The court said, ‘the trial court must consider the possibility that [the defendant’s]
alcoholism is a circumstance in mitigation within the meaning of [former] rule 423, and
must then weigh this factor along with the other relevant circumstances.’ [Citation.]”
(Reyes, supra, 195 Cal.App.3d at p. 960, original italics, quoting Simpson, supra,
90 Cal.App.3d at p. 928.) Here, as in Reyes, supra, at p. 961, the trial court read and
considered the probation report and heard defense counsel argue his client’s alcoholism
was a mitigating factor. Then, for reasons clearly articulated in its sentencing statement,
the court found it should not be treated as a mitigating factor.
       “As a policy matter, when a defendant has a drug addiction or substance abuse
problem, where the defendant has failed to deal with the problem despite repeated
opportunities, where the defendant shows little or no motivation to change his life style,
and where the substance abuse problem is a substantial factor in the commission of
crimes, the need to protect the public from further crimes by that individual suggests that
a longer sentence should be imposed, not a shorter sentence. For example, the felony
drunk driver who is suffering from an uncontrolled alcoholism should be sentenced to a



4       Defendant asserts “he did make efforts, albeit ineffectual ones, to rehabilitate
himself.” However, he supports this assertion only by citing to his uncorroborated claims
at the sentencing hearing, which contradicted the probation report on this point.

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longer term, not a shorter one, in order to prevent him from driving under the influence
again. . . . [¶] . . . [¶] Indeed, where . . . the substance abuse problem has led to
behavior described as aggravating factors in [former] rule 421, such as a pattern of
criminal conduct dangerous to society, violations of parole or probation, and
unsatisfactory performance on probation or parole, the addiction or alcoholism is
properly considered as a part of those aggravating factors because it suggests a high
probability of further depredations on the public whenever the defendant is again out of
custody.” (Reyes, supra, 195 Cal.App.3d at pp. 963-964, italics added [refusing to follow
Simpson so far as it holds otherwise].) That is this case.
       Because defendant has not shown the trial court’s sentencing choice was an abuse
of discretion, we reject his contentions he was denied due process and the effective
assistance of counsel.
                                              II
       Defendant says the abstract of judgment fails to show his conviction for driving on
a suspended license (count three) was a misdemeanor, instead putting that conviction in a
box with counts one and two under the heading: “Defendant was convicted of the
commission of the following felonies.” The Attorney General responds, confusingly and
without authority, that we should conclude that “there is no error contained on the
abstract of judgment” because, “for purposes of clarity, count III was included on the
‘felony’ abstract of judgment form despite its being a misdemeanor.”




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                                      DISPOSITION
       We direct the trial court to strike count three from the abstract of judgment and
furnish a certified copy of the corrected abstract to the Department of Corrections and
Rehabilitation. The judgment is affirmed.



                                                       NICHOLSON              , Acting P. J.



We concur:



      DUARTE                , J.



      HOCH                  , J.




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