(Super. Ct. No. CM033236)
The opinion of the court was delivered by: Blease , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Kyle Trevon Williams-Dugan appeals the sentence imposed following his plea of no contest to second degree robbery. (Pen. Code, § 211.)*fn1 He contends the trial court abused its discretion in denying him probation, as it did not properly credit the section 1203.03 recommendation. We find no abuse of discretion and affirm.
FACTUAL BACKGROUND*fn2 AND PROCEDURAL HISTORY
On October 20, 2010, Joseph Teree saw an advertisement for a video game station. He called the number listed in the ad and arranged to meet a woman in a specified alley. Shortly after he arrived, defendant and another man, Jeffrey Taplin, came into the alley. Defendant produced what appeared to be a black semiautomatic handgun and said, "Give me all your fucking money and cell phone or I'm going to kill you." Teree, in fear for his life, handed over $180, two credit cards, other identification and his cell phone.
Defendant was charged with second degree robbery (§ 211) and making a criminal threat (§ 422). It was further alleged defendant had personally used a firearm. (§ 12022.53, subd. (b).) Defendant pled no contest to second degree robbery with the understanding the maximum sentence was five years in prison and a fine. The remaining count and the enhancement allegation were dismissed.
In evaluating defendant's suitability for probation, the probation officer reviewed California Rules of Court, rule 4.414.*fn3 The probation officer noted the crime was very serious, defendant inflicted emotional injury on the victim, defendant was an active participant in the crime, the victim was lured to the scene of the crime, defendant acted in collusion with at least two other people and demonstrated sophistication or professionalism in the commission of the offense. On the other hand, defendant did not have a significant criminal record, except for vehicle code violations, he expressed remorse for his involvement in the crime, was willing to abide by the terms and conditions of probation and would likely be able to comply with them.
The probation report included numerous letters of support, character references and a job offer. The "raft of letters of character reference . . . generally portray [defendant] as an intelligent, motivated, caring person who would not engage in this type of behavior." In defendant's statement to the probation officer, he expressed remorse for being "involved in a situation where the victim was frightened and deprived of his property. However, the defendant claims that he was not involved in a robbery in any capacity . . . ." In essence, defendant claimed he was in the wrong place at the wrong time. The arresting officer noted at the time of questioning, defendant was evasive and declined the opportunity to turn himself into law enforcement. The arresting officer recommended the mid-term sentence.
The probation officer was disturbed that defendant's version of the crime was significantly at odds with the reports. He concluded "[o]ne is left with the impression that the defendant has not been forthcoming regarding his involvement in the instant offense, and that he has neither accepted responsibility for his actions, nor been genuinely remorseful." Considering all these factors, the probation officer concluded defendant was unsuitable for probation and recommended state prison.
The court found a just disposition required a diagnosis and recommendation under section 1203.03 and ordered a psychological evaluation. As part of the section 1203.03 evaluation, Associate Warden Kraft reported defendant had been programming well while in custody and had expressed remorse for his behavior. Defendant reported he had a painting job available if he was released and he planned to attend school. He also indicated he was willing to comply with any court orders. In recommending defendant be sentenced to prison rather than granted probation, Kraft noted defendant had a criminal history prior to the instant offense, his criminal behavior was a significant threat to public safety, and he had not demonstrated a realistic plan for bettering his life or accepting responsibility for his actions.
Dr. Krause also evaluated defendant. He reported defendant did not appear to have any underlying mental illness, substance abuse problems or disability that would excuse or explain his criminal conduct. Defendant appeared to show a high level of insight, determination and ability, and had a good recognition of past mistakes and responsibilities. The behaviors underlying the robbery did not appear to be part of a pervasive pattern of violence, defendant did not have an extensive criminal history and he showed no signs of criminal versatility. Accordingly, weighing the risks of ...