IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
October 14, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ELAINE GRACE GARVEY, DEFENDANT AND APPELLANT.
(Super. Ct. Nos. CM030999, CM027785)
The opinion of the court was delivered by: Hoch , J.
P. v. Garvey
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Elaine Grace Garvey pled no contest to child endangerment (Pen. Code,*fn1 § 273a, subd. (a)) and was sentenced to four years in state prison. She contends on appeal that the trial court abused its discretion in finding hers was not an unusual case where the interests of justice would best be served by a grant of probation.
We conclude the trial court appropriately exercised its discretion in sentencing defendant to prison. We affirm the judgment.
In August 2007, defendant, representing herself as a nurse from "Dr. Keech's" office, called in to a pharmacy a prescription for "Lortab," a schedule-3 controlled substance. Defendant said the prescription was for a "Diana Knight." The pharmacy manager contacted Dr. Keech's office to confirm the prescription and discovered the ruse. When defendant arrived at the pharmacy to pick up the prescription, the police questioned her. Defendant admitted to the police that she attempted to pick up Knight's prescription but she denied phoning it in.
Defendant was arrested and charged in Butte County Superior Court case No. CM027785, with obtaining a controlled substance by fraud (Health & Saf. Code, § 11173, subd. (a)) and commercial burglary (§ 459). Defendant subsequently entered a negotiated plea pursuant to which both counts were reduced to misdemeanors in exchange for defendant's no contest plea. Defendant was sentenced to three years probation and ordered to serve 45 days in county jail.
In March 2009, law enforcement conducted a probation search of the residence defendant shared with her eight-year-old daughter. During the search, law enforcement discovered a "broken glass smoking pipe in two separate trash cans and a syringe with a metal spoon and cotton balls stuck to it under a sink." A sample of the daughter's hair was taken and later "tested positive for methamphetamine exposure."
On July 8, 2009, defendant was charged in Butte County Superior Court case No. CM030999 with child endangerment in violation of section 273a, subdivision (a). Defendant pled not guilty and was released on her own recognizance "with conditions."
On July 24, 2009, while defendant was out of custody, police responded to a noise complaint at a mobile home park. Police arrived and found defendant sitting in a parked vehicle with an adult male. A probation search was conducted on defendant and a "capped" hypodermic needle that appeared to have been used was found in her purse. Defendant refused to answer when she was asked why she had the needle.
Defendant was cited and released for possessing a hypodermic needle; she was later charged in Butte County Superior Court case No. SCR73629 with possessing a hypodermic needle in violation of Business and Professions Code section 4140.
In October 2009, defendant entered a negotiated plea, pursuant to which she agreed to plead no contest to child endangerment (§ 273a, subd. (a)--CM030999) in exchange for a "no immediate state prison" agreement and dismissal of the charge for possessing a hypodermic needle (Bus. & Prof. Code, § 4140--SCR73629) with a Harvey*fn2 waiver. Defendant also was found in violation of her probation in the fraudulent prescription case (CM027785).
At the plea hearing, the trial court advised defendant that a probation officer would prepare a written report and recommendation, advising the court on whether probation was appropriate for defendant's plea. The court further advised defendant that, if probation was deemed not appropriate, she could be sentenced to state prison for a maximum term of six years.
The court then set the sentencing hearing for November 17, 2009. Defendant was released with the following order from the court: "Now, today you go to probation. Make and keep all appointments with them. It's very important you do that. And not only to facilitate preparation of a report, but it's also part of your no immediate state prison agreement, okay."
The probation department (department) set an appointment for defendant to be interviewed on November 4, 2009. On November 3, 2009, however, defendant canceled the appointment due to illness. The appointment was rescheduled to November 5, 2009, but defendant called on the morning of November 5 and canceled that appointment as well claiming she had the flu.
Defendant appeared at the November 17, 2009, sentencing hearing but the matter was continued to December 15, 2009, because defendant still had not met with the department. Defendant was released on her own recognizance.
Defendant appeared at the December 15, 2009, hearing; however, she still had not contacted the department to schedule an interview. Thus, sentencing had to be continued yet again. Defendant was again released on her own recognizance and was ordered to report to the department "forthwith." The sentencing hearing was continued to January 19, 2010.
The department then scheduled defendant's interview for December 21, 2009. The morning of the interview, defendant called the department and said she was unable to keep the appointment because she was having "blood work" done. The interview was rescheduled to December 28, 2009.
On December 28, 2009, defendant's mother contacted the department and said defendant could not make it to the interview because the mother's car had broken down and she could not drive defendant to the appointment.
Defendant appeared at the January 19, 2010, hearing but, because she still had not met with the department, sentencing was continued to February 2, 2010. The court released defendant on her own recognizance and ordered her to report to the department within the next 48 hours.
On January 22, 2010, the department conducted their interview of defendant over the telephone. Defendant then failed to appear at the sentencing hearing on February 2, 2010. Accordingly, a bench warrant was issued for defendant's arrest. Defense counsel subsequently filed a motion to recall bench warrant; on March 15, 2010, while that motion was pending, defendant turned herself in to law enforcement.
On June 22, 2010, defendant appeared before the court for sentencing. Defendant, who was presumptively ineligible for probation, applied for probation claiming hers was an unusual case warranting probation. In support of her claim, defendant argued that she did not have a history of violent crimes and all her crimes were the result of a "very serious drug problem." Defendant said she and her mother had secured her placement in three different rehabilitation facilities, including one that had a bed for defendant's daughter.
The court denied defendant's application for probation, finding: "Court has reviewed the unusual case criteria, and does not find that any of the criteria apply to [defendant] or her crimes, certainly having been on notice about the issues of addiction, and being given the opportunity to overcome it, rejecting that.
"Even if the defendant was not statutorily [in]eligible for probation, the court would deny probation for the reasons found in rule of court 4.414(b). The prior record and pattern of increasing serious conduct, performance on probation, and status on probation when the crime in CM 030999 was committed.
"There does not seem to be a willingness to comply with probation; although [defendant] is expressing that willingness, it is not demonstrated by the conduct that has been detailed in the probation report.
"The dependent for [defendant] is in placement, doing well, and it does seem that this is an uncontrolled drug addiction that if not in prison, [defendant] will be a danger to others, in that she's unable to control her addiction."
The trial court sentenced defendant to the middle term of four years on her conviction for child endangerment (CM030999). The court imposed a concurrent term of one year each on defendant's convictions for obtaining a controlled substance by fraud and commercial burglary (CM027785). The court ordered defendant to pay various fines and fees, as well as victim restitution, and awarded her 204 days of custody credit (102 days actual and 102 days conduct). Defendant appeals; her request for a certificate of probable cause was denied.
Because defendant had more than one prior felony conviction, she was subject to section 1203, subdivision (e)(4) (§ 1203(e)(4)), which rendered her presumptively ineligible for probation unless the trial court found this to be an "unusual" case where the interests of justice would be best served by granting probation. (§ 1203(e)(4).) "A denial of a grant of probation generally rests within the broad discretion of the trial court and should not and will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner. [Citation.]" (People v. Edwards (1976) 18 Cal.3d 796, 807.) The same abuse of discretion standard applies to the review of the trial court's determination of whether a case is an unusual one permitting probation. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831 (Du).) The "'"burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary."' [Citation.]" (People v. Carmony (2004) 33 Cal.4th 367, 376; see also Du, supra, at p. 831.)
In a case like this one where the "defendant comes under a statutory provision prohibiting probation 'except in unusual cases where the interests of justice would be best served,'" the trial court must first apply the criteria in rule 4.413(c)(1) and (c)(2) of the California Rules of Court*fn3 to determine whether the statutory limitation on probation is overcome. (Rule 4.413(b); see also Du, supra, 5 Cal.App.4th at p. 830.)
Rule 4.413(c) sets forth the facts that "may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate." (Rule 4.413 (c).)
Rule 4.413(c)(1) sets forth "[f]acts relating to basis for limitation on probation" and they are: "(A) The fact or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence; and [¶] (B) The current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense." (Rule 4.413(c)(1).)
And rule 4.413(c)(2) refers to "[f]acts limiting defendant's culpability." (Rule 4.413(c)(2).) The criteria under rule 4.413(c)(2) are whether: "(A) The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence; [¶] (B) The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation; and [¶] (C) The defendant is youthful or aged, and has no significant record of prior criminal offenses." (Rule 4.413(c)(2).)
Rule 4.413(c) is to be read narrowly. (People v. Stuart (2007) 156 Cal.App.4th 165, 178.) Even if a fact listed in rule 4.413(c) exists, this does not necessarily show that the case is unusual; the trial court may find it so, but need not. (Stuart, at p. 178.)
Here, after hearing from counsel, the court concluded there was not a sufficient basis to overcome the presumption against probation under section 1203(e)(4). The trial court stated that defendant committed the crime of child endangerment by exposing her child to methamphetamine, after defendant had rejected numerous opportunities to overcome her drug addiction. The court also found it compelling that, when her daughter was taken from her, defendant refused to cooperate with the juvenile court to have her daughter returned to her. Defendant missed drug tests, she failed to provide narcotics anonymous logs to the juvenile court, and she failed to take a parenting class.
Thus, the trial court concluded, this was not an unusual case. Defendant contends the record does not support the trial court's conclusion. Whether defendant is correct, she has failed to prove that she would have received a better judgment even if the trial court had found her case to be an unusual one.
If, after applying the criteria, the trial court determines that the statutory limitation on probation is overcome, then the court must apply the criteria in rule 4.414 to decide whether to grant probation. (Rule 4.413(b); Du, supra, 5 Cal.App.4th at p. 830.) Relevant criteria enumerated in the Rules of Court must be considered by the sentencing judge, and "will be deemed to have been considered unless the record affirmatively reflects otherwise." (Rule 4.409.)
Here, after determining the case was not an unusual one, the trial court went on to find that even if defendant were not statutorily ineligible for probation, the court still would have denied her probation under rule 4.414(b). In reaching its decision, the court relied on numerous factors including: defendant's "prior record and pattern of increasing serious conduct, performance on probation, and status on probation when the crime in CM 030999 was committed." Defendant contends the trial court's reasons were not supported by the record. We disagree.
First, defendant argues that "the  department itself recognized that '[t]he instant offense is not viewed to be any more serious than other instances of the same crime.'" Obviously the trial court can disagree and we will not substitute our judgment for that of the trial court. (People v. Carmony, supra, 33 Cal.4th at p. 377 [appellate courts are not authorized to substitute their judgment for the trial court's].) Regardless, it is not unreasonable to conclude that exposing a child to methamphetamine is a more serious crime than obtaining a prescription by fraud or simple possession of methamphetamine.
Second, while defendant may have performed successfully on probation in the past, she was on probation when she was arrested for child endangerment. Moreover, as noted by the trial court, after defendant's plea to the crime of child endangerment but prior to her sentencing, defendant failed to cooperate with the department and failed to comply with the orders of the court. She cancelled numerous appointments with the department, usually at the last minute, and failed to appear at sentencing after she finally did meet with the department. Such conduct makes it evident that defendant would not likely succeed on formal probation.
In sum, defendant fails to demonstrate any irrationality or arbitrariness in the trial court's denial of probation. Thus we find no abuse of discretion. We do, however, note a clerical error in the abstract of judgment. Defendant was sentenced to a concurrent term of one year each on her convictions for obtaining a controlled substance by fraud and commercial burglary (CM027785). These are not reflected in the abstract of judgment.
The trial court is directed to correct the abstract of judgment to reflect the sentence imposed in case No. CM027785. The trial court is further directed to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
We concur: BLEASE , Acting P. J. HULL , J.