Opinion
A129445
12-27-2011
THE PEOPLE, Plaintiff and Respondent, v. MAXWELL W. KROHN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. FCR271770)
INTRODUCTION
After a three-week crime spree in which defendant Maxwell Krohn burglarized or attempted to burglarize 26 homes, he was sentenced to 12 years in prison. He, in fact, entered a no contest plea as part of a bargain that set a 12-year maximum.
He now appeals, claiming his sentence violated Penal Code section 654.Specifically, he claims the court should have stayed the sentences on counts two, five, and seven through nine, apparently because those burglaries occurred on the same dates as other burglaries of which he was convicted. He further claims the court abused its discretion by failing to impose sentence concurrently on at least some of the counts, by failing to consider a diagnostic evaluation pursuant to section 1203.03, and by rejecting the defense proposal of granting probation conditioned on participation in an intensive in-patient drug treatment program.
Undesignated statutory references are to the Penal Code.
We conclude his section 654 argument is foreclosed due to his failure to obtain a certificate of probable cause, and there is no merit to any of his other arguments. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In late 2009, defendant engaged in what his own attorney calls a crime "spree," burglarizing or attempting to burglarize 26 residences in a little more than three weeks. Defendant was 19 years old at the time of the burglaries.
His mode of operation was to walk around neighborhoods in Vacaville, where he lived with his girlfriend, Laurie Zavala, knocking on doors until he found a house where no one appeared to be home. Entry to the homes was accomplished or attempted variously through windows, doors, sliding doors, garage doors, and dog doors. In some instances he kicked in the door, broke a window, or used a pry tool to attempt to gain entry. He stole primarily jewelry, purses, electronic equipment, and firearms, later pawning most of the items to buy OxyContin, to which he was addicted.
OxyContin is the brand name for the drug oxycodone, a controlled substance. (Health & Saf. Code, § 11352, subd. (a); see also Health & Saf. Code, § 11055, subd. (b)(1)(M).)
In some of the later burglaries Zavala, who was also addicted to OxyContin, also participated. One of the homes hit was that of a friend of Zavala's. Personal items taken, such as clothing and perfume, were kept by Zavala.
Defendant was charged with 18 counts of residential burglary (§ 459), eight counts of attempted residential burglary (§§ 459, 664), and one count of receiving stolen property (§ 496), all occurring between October 17 and November 11, 2009. In accordance with a plea bargain, he entered no contest pleas to eight counts of burglary and one count of attempted burglary (counts one through nine); the remaining counts were dismissed with a Harvey waiver. The plea agreement was that he would be sentenced to no more than 16 years in state prison (suspended) if he were granted probation, or a maximum of 12 years in prison if probation were denied.
A Harvey waiver allowed the court to consider facts underlying the dismissed charges in sentencing. (People v. Harvey (1979) 25 Cal.3d 754, 758.)
Counts one and two alleged two burglaries on October 17, 2009. One resulted in the loss of jewelry and watches worth more than $5,200.00 and was accomplished by entering through a large dog door. The second burglary appears to have been interrupted when the homeowner returned home. Entry had evidently been gained through a living room window, and the bedroom had been rifled, but no property was missing.
Count three was a burglary on October 19, 2009, in which defendant gained access to the house through a front window. Numerous pieces of jewelry were stolen, though no specific value was ascribed to them.
Counts four and five involved two burglaries on October 20 in which jewelry and purses were stolen, valued in the probation report at nearly $5,600.00 from one home and nearly $42,000.00 from the other. Entry was made through a bedroom window of one home and through the exterior kitchen door of the other. Counts six through nine all were committed on October 22, 2009, and included three completed burglaries and an attempted burglary. Jewelry, electronic equipment, and other goods stolen from the three homes was valued at nearly $31,000.00. Entry in one case had been gained through a side garage door, in another case through a kitchen window, and in the third case through a rear door. In the attempted burglary, it appeared entry had been attempted unsuccessfully through both a master bedroom door and a kitchen window.
On June 21, 2010, defendant was sentenced to an aggregate term of 12 years, comprised of a low base term of two years on one count of first degree burglary, seven consecutive 16-month terms for the other seven burglaries, and one consecutive eight-month term for the attempted burglary. The court imposed consecutive sentences, noting that the burglaries involved "repeated entry into private residences" and were "committed against separate victims, and while closely related in time, they involve different residences at different times . . . ."
On August 6, 2010, defense counsel filed a motion to recall the sentencing order.
On August 16, 2010, defendant filed two notices of appeal. In one he purported to appeal from the "judgment and sentence" and attached a form request for a certificate of probable cause without filling in the section requiring specification of "reasonable constitutional, jurisdictional, or other grounds going to the legality" of the proceedings. (§ 1237.5, subd. (a).) The record shows no action by the court on that request. A separate simultaneously filed notice of appeal specifies that it is an appeal "from the sentence imposed."
On September 7, 2010, the court denied the motion to recall the sentence and ordered restitution of $47,025.81.
DISCUSSION
Defendant's claim under section 654 is barred
Defendant relies on section 654, subdivision (a), to argue that all of his crimes were motivated by the same desire—to get money to buy drugs—and they therefore all constituted but a single criminal transaction for purposes of section 654, or at least all crimes committed on the same date should be sentenced as one crime. We decline to reach that issue because defendant did not obtain a certificate of probable cause.
The certificate requirement is intended to "to promote judicial economy by screening out wholly frivolous guilty and nolo contendere appeals." (People v. Mendez (1999) 19 Cal.4th 1084, 1095.) Although defendant went through the motions of applying for a certificate of probable cause, he did not comply with section 1237.5 and California Rules of Court, rule 8.304(b because his filing did not contain a statement under oath of grounds for issuing the certificate.
Citations of rules without further designation are to the California Rules of Court.
Defendant's claim under section 654 is barred by his failure to obtain a certificate of probable cause. (§ 1237.5, subd. (b); rule 8.304(b)(1).) People v. Cuevas (2008) 44 Cal.4th 374, 383-384 (Cuevas) held that a defendant who enters a plea agreement that, by dismissal of some of the charges, results in a maximum prison term that is mutually understood by the parties, may not challenge imposition of that maximum sentence under section 654 without a certificate of probable cause because such an attack goes to the validity of the plea. "In asserting that section 654 requires the trial court to stay any duplicative counts, defendant is not challenging the court's exercise of sentencing discretion, but attacking its authority to impose consecutive terms for these counts. This amounts to a challenge to the plea's validity, requiring a certificate of probable cause, which defendant failed to secure." (Id. at p. 384; see also People v. Johnson (2009) 47 Cal.4th 668, 678.)
"An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other." (§ 654, subd. (a).)
Here there is no legitimate argument that defendant's plea bargain included a right to assert the agreed-upon sentence lid violated section 654. The agreement allowed defendant to "argue for" a lesser sentence, including probation with a residential drug treatment program. But in People v. Shelton (2006) 37 Cal.4th 759, 767-769, the Supreme Court held defendant could not appeal the legality of a sentence lid under section 654 without a certificate of probable cause, even though the plea agreement reserved his right to " 'argue for' " a lesser term. The plea agreement in this case was negotiated long after Shelton was decided, and we must assume the parties were aware that reserving the right to "argue for" a lesser sentence would not of itself preserve a section 654 issue for appeal.
Defendant's attorney at sentencing argued for probation with drug treatment, or alternatively for imposition of concurrent sentences. He did not argue that imposition of the lid sentence would violate section 654, which suggests he realized he had no basis for making that argument and no intent to preserve that issue for appeal. Therefore, we find defendant's plea agreement did not anticipate that he could raise a section 654 issue on appeal.
The complaint alleged that defendant committed burglaries or attempts on eleven different dates in October and November 2009 and thus would easily have supported a sentence of 12 years or more, even in accordance with what we understand to be defendant's (we must say strained) interpretation of section 654. Yet, if defendant's argument before us were successful, he would be left with only four burglary convictions on which sentence could be imposed on remand without a stay (counts one, three, four and six). (See fns. 6, ante, & 12, post.) The maximum exposure on those counts would be less than the agreed-upon 12-year sentence lid. Thus, he seeks to do exactly what the Supreme Court has held he cannot do: agree to one sentence lid in order to secure dismissal of additional charges and then attempt on appeal to unilaterally improve his bargain by further reducing his sentence through an attack on the validity of the agreed-upon lid. (Cuevas, supra, 44 Cal.4th at pp. 383-384.) Such a result cannot be sanctioned. (See People v. Rushing (2008) 168 Cal.App.4th 354, 360-362.)
It appears defendant would agree that each different day's burglaries or attempts could be punished as a single burglary, but no two burglaries on a single date could be separately punished. We see no other reason for defendant to single out counts two, five and seven through nine as subject to the sentencing prohibition of section 654.
Defendant nevertheless claims if either the certificate of probable cause requirement or rule 4.412 is applied to bar his section 654 claim, we should still address the merits because his attorney was ineffective for failing to raise a section 654 objection at sentencing and for failing to obtain a certificate of probable cause. (Strickland v. Washington (1984) 466 U.S. 668.) But we cannot fault counsel for failing to raise section 654 as invalidating the sentence for we deem that position to be utterly unmeritorious. Section 654 notwithstanding, multiple burglary punishments may lawfully be imposed for each separate felonious entry of a different dwelling. (See, e.g., People v. Samuels (1996) 42 Cal.App.4th 1022, 1026 [separate consecutive punishment for three burglaries committed on same day involving "different victim[s], at different times, in separate residences"]; People v. James (1977) 19 Cal.3d 99, 119 [burglary of separate office suites within single commercial building each separately punishable]; People v. O'Keefe (1990) 222 Cal.App.3d 517, 522 [separate sentences for multiple burglaries of several dormitory rooms]; see also, In re William S. (1989) 208 Cal.App.3d 313, 318 [two burglaries of same house several hours apart separately punishable under § 654 because "second entry . . . was inspired by a desire to purloin additional loot"].)
Rule 4.412(b) provides: "By agreeing to a specified prison term personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654's prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record." Defendant argues that the rule does not apply where the agreement was not to a "specified prison term" but to a maximum term or sentence lid. The Supreme Court declined to decide that question in Cuevas, supra, 44 Cal.4th 374, 384, fn. 6. We also need not decide that issue here. (But see People v. Cole (2001) 88 Cal.App.4th 850, 872-873 [applying rule 4.412 to plea bargain for lid sentence].)
Accordingly, defendant's appeal is unauthorized insofar as it raises section 654 as a basis for invalidating the sentence. No abuse of discretion in sentencing all counts consecutively
Defendant claims that, even apart from the operation of section 654, the court erred in ordering the sentences on all counts to run consecutively. He recognizes that his claim is governed by the abuse of discretion standard and warrants reversal only when the court "exceeds the bounds of reason, all of the circumstances being considered." (People v. Bradford (1976) 17 Cal.3d 8, 20.)
Choosing between concurrent and consecutive sentencing is one of the ways in which a court may individualize a sentence to reflect the seriousness of the defendant's conduct. (See People v. Black (2007) 41 Cal.4th 799, 821-822.) The court has wide latitude in making that choice, and it may consider factors other than those enumerated in the Rules of Court. (People v. Caesar (2008) 167 Cal.App.4th 1050, 1059, disapproved on another ground in People v. Superior Court (Sparks) (2010) 48 Cal.4th 1, 18.)
The court imposed consecutive sentences because the burglaries involved "repeated entry into private residences" and were "committed against separate victims, and while closely related in time, they involve different residences at different times . . . ." These comments were tantamount to a finding that "[t]he crimes and their objectives were predominantly independent of each other" under rule 4.425(a)(1).
Though loosely articulated, it appears defendant's position is that he should have been sentenced concurrently on all counts committed on a single day. He points out the crimes of which he was convicted all occurred during seven days at the end of October 2009, "often two or more burglaries in a single day." He offers no coherent rationale, much less any case authority, for treating all burglaries committed on the same date as a single crime. He simply attempts to portray the entire crime spree as a brief "aberrant period" in an otherwise blemish-free life. (Rule 4.425(a)(3).)
We fail to see how the perpetration of multiple burglaries in a single day mitigates defendant's offenses or entitles him to more lenient treatment. The burglaries on the dismissed counts continued well into November and the total crime spree lasted more than three weeks. There is no reason to think defendant would have abandoned his spree if he had not been caught.
In addition, according to a psychological assessment submitted with his motion to recall the sentence, defendant had been caught by his parents stealing money and jewelry from them before the string of burglaries. The judge noted defendant had been pawning things that did not belong to him in Santa Rosa (where his parents lived) before he began pawning items acquired in the burglaries. Defendant had evidently been addicted to OxyContin for at least a year when his crime spree began. He had attended a drug treatment program during the summer before his burglary spree, obviously with less than optimal results.
Two distinct burglaries of different homes on the same date may be punished consecutively. (See, e.g., People v. Samuels, supra, 42 Cal.App.4th at p. 1026 [consecutive punishment for three burglaries committed on same day because they were "perpetrated on a different victim, at different times, in separate residences"]; People v. Bowman (1989) 210 Cal.App.3d 443, 446-449 [eight consecutive burglary sentences not an abuse of discretion where defendant on a single night broke into a car dealership, stole supplies from the office, and also broke into various motor homes and vehicles and stole electronic equipment from them].) Defendant cites no case in which it was held to be an abuse of discretion to sentence two different burglaries on the same date consecutively. The record here does not show the kind of temporal and spatial proximity that would make consecutive sentencing an abuse of discretion.
Samuels, supra, 42 Cal.App.4th at p. 1026, held consecutive sentences were mandatory under the three strikes law, but it was overruled on that point in People v. Deloza (1998) 18 Cal.4th 585, 593, fn. 5, to the extent it interpreted the phrase " 'on the same occasion' " in the three strikes law (§§ 667, subd. (c)(6), 1170.12, subd. (a)(6)) as mandating consecutive sentencing whenever section 654 would not preclude separate punishment.
Rule 4.425(a)(3) specifically allows the court to take account of whether "[t]he crimes were committed at different times or separate places" in deciding to impose consecutive sentences. Although the specific time of day of each burglary does not appear in the record, it is obvious they were separate in time: one cannot be in two places at once. In assessing his culpability, the court could of course consider that defendant made a separate decision multiple times to enter another's home and steal his or her possessions. He targeted each home by knocking on the door, figured out how best to enter, and proceeded to attempt an entry by various means.
Defendant begrudgingly admits his crimes targeted "single-family residences, so they naturally occurred at separate places." Yet he seems to argue the court abused its discretion in sentencing each burglary consecutively because "all the crimes happened in [defendant's] immediate neighborhood." We are confident rule 4.425(a)(3) should not be construed to require or even to encourage concurrent sentences for all crimes committed in the same neighborhood.
Defendant further argues he committed no violence during the burglaries and "took pains not to burglarize residences where people were home or where he was likely to be seen." This does not advance his cause very far. He more likely chose empty houses and avoided being seen so as not to be caught for his crimes, not because he was considerate of his victims' safety and sensitive to their feelings.
Defendant argues that a burglar, unlike a violent perpetrator, may not be punished separately for each different victim of his crimes because the multiple victim
exception to section 654 does not apply in the case of burglaries. (People v. Miller (1977) 18 Cal.3d 873, 885886; People v. Centers (1999) 73 Cal.App.4th 84, 99.) This argument essentially sets up a straw man for defendant to knock down but fails to address the real substance of the court's reasoning. What defendant fails to acknowledge is that he is not being punished based solely on there being separate victims of his crimes, but based on separate unlawful entries into separate properties, which is the very crux of burglary.
On the contrary, he and Zavala burglarized the home of Cassie Horner, one of Zavala's friends, thereby violating a trust relationship. Defendant "concentrated nearly all [of his] efforts in [Horner's] [bed]room," ransacking the room and stealing very personal items, including clothing, undergarments, shoes, family photos, jewelry and makeup at Zavala's behest. The jewelry stolen had been given to Horner by her father and had sentimental value. Horner understandably felt betrayed by the burglary, having had her trust and her "personal sanctuary" violated. Such a violation goes beyond that involved in the burglary of a stranger's home solely for drug money. We cannot say these burglaries were committed with greater sensitivity to the victims' welfare than the run-of-the-mill burglary.
Another victim also reported that her son knew co-defendant Zavala in high school and believed Zavala had been in her house on prior occasions.
Defendant's real argument is that all of his crimes were rooted in his drug addiction. He points out that in each case he sought "quick money to acquire OxyContin," and "[t]his motivation threads itself through all the burglaries." He therefore claims that "at least some" of the counts should have been sentenced concurrently. But the court was well aware of defendant's addiction and took that into account as a mitigating factor. None of the cases cited by defendant holds that a series of burglaries of different homes must be sentenced concurrently simply because they share a common drug-driven motive. The trial court reasonably found the fact that defendant committed "more than 20 residential burglaries or attempted burglaries outweighs his need for personal treatment."
In his argument on section 654 he specified that counts two, five, and seven through nine should have been stayed. We construe his abuse of discretion argument to apply to the same counts, as his briefing suggests.
Ultimately, defendant argues that his crimes were out of character due to his addiction to OxyContin. It is true that defendant received many letters of support from lawyers, a judge, a psychologist, a psychiatrist, teachers, drug counselors, tennis coaches, a former employer, and other community members, many of whom had known defendant most or all of his life. The letters describe him as a likable, health-conscious, respectful young man who acted entirely out of character when he embarked upon his crime spree.
Defendant grew up in a stable home and a well-respected family, with a paralegal mother and tennis professional father. He traveled the country on the junior tennis circuit and played tennis in college. He maintained acceptable grades in school and had attended a year of community college before he was apprehended on the current charges. He had no criminal history. In short, he had a supportive family, was at core a "gentle soul," and appeared to have a bright future until he got mixed up with OxyContin. It is fair to infer also that Zavala may have been a bad influence on him. To his credit, he stressed to the sentencing court that he was sincerely involved in drug treatment programs while in jail and wanted to turn his life around.
These things all may be true, but it does not change the fact that defendant pled no contest to eight separate burglaries and another attempted burglary. A 12-year sentence was not unduly harsh. In fact, defendant admits in his reply brief that it is "[p]lainly not" "irrational on its face" to impose a 12-year sentence for "a rash of 26 burglaries or attempted burglaries during a short span of time." Defendant's good family background and unfortunate drug addiction do not alter that calculus.
Defendant also fails to acknowledge that he did gain a significant benefit through his plea bargain. Defendant received whatever leniency he was entitled to by being given a mitigated sentence on the principal offense and by dismissal of 18 additional counts of the complaint. The prosecutor recited that the original charges could have resulted in a sentence of up to 34 years. The court commented that the sentence imposed was roughly one-third of what defendant had been facing. Clearly, defendant's plea bargain took into account an appropriate measure of leniency. Defendant must serve consecutive sentences on the offenses of which he was convicted because they reflect the ongoing and repetitive nature of his crimes, not because the court abused its sentencing discretion. Claimed misstatements of fact by the trial court
Defendant attempts to bolster his abuse of discretion argument by asserting the court's stated reasons for imposing consecutive sentences were "fraught with errors and false inferences, usually directly contradicted by the record itself." We cannot agree with this assessment.
Defendant identifies several facts that he claims the trial court got wrong. First, it said defendant "nett[ed] thousands" from the burglaries and the total value of items stolen was "over $100,000." In addition, the court opined that defendant's motive for the burglaries was not simply to get money for drugs (as defendant argues), but rather was in part for "the thrill of it all." Third, the judge said that defendant's drug addiction "was really a situation of his own making and his own choosing." And finally, the court said defendant "terrorized the neighborhoods," and "the victims . . . are still very clearly traumatized by his actions."
With respect to the value of the possessions stolen, defendant points out the total restitution order was only for $47,025.81. However, at the time of sentencing the court was relying upon the probation report, which supported its statement that the value of the stolen goods exceeded $100,000.00 by identifying losses approximated at nearly $140,000 in all. Besides the amounts specified in the statement of facts, the burglaries of the residences involved in the dismissed counts also amounted to more than $55,000.00 and included the theft of firearms. Many of the stolen goods were recovered from defendant's and Zavala's apartment or from pawn shops after defendant's arrest, which may explain the discrepancy between the losses initially reported and the amount of restitution ultimately ordered. But even if the court overstated the total amount stolen, the difference was not material.
Even more off the mark, defendant quibbles about how much he actually " 'netted' " from his crimes, discussing at some length pawn shop values of merchandise, as well as the high price of OxyContin. All of this is beside the point.
The court's point was that defendant's burglaries were by no means trivial or insubstantial. He took a great deal of valuable property from a multitude of victims. Even at pawn shop value he probably netted "thousands" for himself, as the court indicated. In fact, he told a therapist who wrote in support of his motion to recall the sentence that he had spent "thousands of dollars" on OxyContin. More important, the net value he received does not reflect the harm he inflicted on the victims, which was the thrust of the court's remarks.
The "thrill" aspect of the burglaries was mentioned by the court, but this was largely a matter of inference from the number and frequency of the burglaries, which the court found could not be explained by defendant's need to feed his drug habit alone. For instance, when defendant was apprehended he was "loaded down with jewelry" but still was attempting to enter another home. The court found this undermined his claim that he only burglarized homes to get money to buy drugs. He and his girlfriend also had numerous stolen articles in their possession when they were arrested, including firearms, jewelry, and a laptop. Defendant admitted that he kept some of the stolen items and gave some to Zavala. We cannot say the inference that defendant was burglarizing homes for more than just drug money was unreasonable. The psychologist who evaluated defendant also noted that part of his motive was to "impress his girlfriend", which tends to support the "thrill" theory. The crimes were evidently the subject of local print and television news reports, yet defendant failed to curtail his criminal conduct or even to move it to a different locale. These factors suggest defendant enjoyed the notoriety he achieved through his crimes.
Likewise, the court's view that defendant's drug addiction was a problem of his own making was a rather pedestrian observation. The role of free will in drug addiction is certainly a matter of differing opinion. The judge's view was that "there is an amount of self-determination, will, that is involved." Regardless of how addictive OxyContin may be, the initial decision to experiment with it was an act of free choice, as the court noted.
The final so-called inaccuracy in the court's statement was its summary of the impact defendant's crimes had on his victims, who were "still very clearly traumatized by his actions." The remarks about trauma were technically restricted to the witnesses who actually appeared to testify, but even if read as applying more broadly to defendant's victims, they were not inaccurate. Defense counsel himself acknowledged the witness impact testimony was "representative of the other victims in this case."
The court's remark was: "the victims of this, the few that we have heard here today, are still very clearly traumatized by his actions."
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As noted earlier, Horner, one of the testifying victims, had been a long-time friend of co-defendant Zavala. She was frightened by the burglary, describing herself as "shaking in fear" as she surveyed her ransacked bedroom. The "terrifying" experience shattered her "concepts of safety and security." She "slept on the couch for weeks" after the burglary, struggling with the "fear to feel safe" again in her own home.
Horner also recalled how defendant had come to her door eight days before the actual burglary, when she had been home from work because she was ill, inferably casing the house for a burglary. She worried about what would have happened if he had broken in on that occasion and found her asleep on the couch.
Gabriel Orick, another victim, testified that although his family lost no property, the attempted entry was through his five-year-old daughter's window. As a result she had suffered a "loss of innocence" and was afraid the "bad man" would come back. Having overheard her parents discussing the incident, the experience had affected the little girl "deep down" and she had become "continuously scared." Orick opined this was something that "a five-year-old should never have to face" and something "a father shouldn't have to explain to [his] child."
Moreover, the probation report shows that other witnesses who did not testify at sentencing were also traumatized by defendant's crimes. One woman had a watch stolen that had been custom made for her grandmother. Luckily it was recovered after defendant was arrested, but it had been damaged and would cost $1,000 to repair. Also, her eight- and eleven-year-old grandchildren discovered the burglary upon returning home from school, and she was "concerned about the potential outcome of events had the defendant been at the home when her grandchildren arrived." Another victim reported losing, and never recovering, items of "significant sentimental value to his family." Other victims, too, reported that "defendant's behavior has had a significant impact on their well-being, especially those with minor children."
Horner also testified that her neighborhood was "on high alert during the weeks following the break-in." Horner's father helped neighbors fortify their homes. The probation report also recognized that defendant's "behavior placed a neighborhood in fear." Consequently, we cannot agree with defendant that the sentencing court's description of victim and community impacts was inconsistent with the record. Failure to refer defendant for a diagnostic study under section 1203.03
Defendant further claims the court erred in failing to order a diagnostic study under section 1203.03. But his argument rests on the theory that the trial court "was either unaware or simply overlooked the scope of discretion to be exercised and rushed to judgment without according appellant the discretion to which he was due."
We cannot make that assumption, and in fact are required to presume official duty was regularly performed. (Evid. Code, § 664.) Defendant did not request referral to a diagnostic facility, and the court was required to refer defendant to a such a facility only if it concluded that a "a just disposition of the case requires such diagnosis and treatment services as can be provided at a diagnostic facility of the Department of Corrections." (§ 1203.03, subd. (a).)
The court had a great deal of information at its disposal in sentencing, including much about defendant's drug addiction. Nothing in the record leads us to conclude the court was unaware of section 1203.03. Nothing in this case cries out for its application. There was no abuse of discretion. (People v. Swanson (1983) 142 Cal.App.3d 104, 111.) Denial of probation as abuse of discretion
Finally, defendant claims it was an abuse of discretion for the trial court to reject defense counsel's suggestion that he be granted probation on the condition that he enter a drug treatment program. Defendant was statutorily ineligible for probation absent unusual circumstances. (§ 462, subd. (a).) Defendant's crime was not "substantially less serious than the circumstances typically present in other cases" of residential burglary. (Rule 4.413(c).) The court did take into account defendant's addiction and commented favorably on his progress in recovery, but also noted that defendant "took this to a level that goes beyond unacceptable." The court said "the real focus should be" on the impact on the victims. It ultimately concluded the number and seriousness of defendant's crimes "outweighs his need for personal treatment."
Here the court found that the impact on the victims—the "havoc" it had left them in—"really leaves the court in no other position" than to deny probation. Another of the court's concerns was that defendant had only recently completed a drug treatment program when he commenced his crime spree. Therefore, the likelihood of success in treatment was somewhat in doubt.
Defendant quotes extensively from section 1210.1, which allows probation and drug treatment for nonviolent drug possession. That section is utterly unavailing. Defendant's crimes were of a much more serious nature than mere drug possession, and his addiction, while possibly a motivating factor for the burglaries, does not excuse his high-risk behavior that "terrorized the neighborhoods" for weeks. These were not victimless crimes. Defendant's discourse on the seriousness of the oxycodone problem is likewise inapposite.
Defendant suggests it will do him no good to be locked up with hardened criminals for years when he is at most a young drug addict who made some poor choices. Regardless of our own views on how he might best be rehabilitated or fittingly punished, the setting of penalties is for the Legislature. Defendant clearly earned the sentence imposed upon him.
DISPOSITION
The judgment is affirmed.
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Richman, J.
We concur: ________________
Haerle, Acting P.J.
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Lambden, J.