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People v. Leung4/9/1992
"minimal" evidence that he was dangerous to others. Chan had one prior adjudication as a juvenile for a burglary occurring approximately 18 months prior to the current offenses. He had been granted probation and had (apparently) successfully completed probation about nine months prior to the current offense. As the court explained, Chan's pattern of conduct exhibited a "readiness" to become involved in crimes of this type. His prior adjudication was evidence that he had not been deterred from committing future crimes by a grant of probation with respect to the earlier matter. Notwithstanding his recent experience with the law, Chan had progressed to participating in armed robberies. Armed offenses involve serious danger to the safety of others. The court could therefore have concluded that defendant's conduct posed a danger to others which militated against a grant of probation.
Chan's final attack is on the trial court's reference to lack of remorse. Whether a defendant is remorseful is a proper consideration with respect to probation. (Rule 414(d)(9).) Chan asserts that this factor was inapplicable to him because he did not admit that he had committed the offenses and the evidence was not overwhelming. "Lack of remorse may be used as a factor to aggravate under California Rules of Court, rule 408 unless the defendant has denied guilt and the evidence of guilt is conflicting." (People v. Holguin (1989) 213 Cal. App. 3d 1308, 1319 [262 Cal. Rptr. 331], italics added.)
While Chan denied guilt, the trial court determined that the evidence was overwhelming. We agree. Two eyewitnesses, whom the trial court found to be extremely credible, positively identified Chan as one of the robbers and described in detail his role in the crimes. Chan's defense consisted of an extremely weak alibi witness. His cousin testified that Chan had been watching a video with him at his San Francisco home at the time of the robberies. On cross-examination, the cousin claimed that, although he became aware of the date and time of the robbery soon after Chan's arrest, he did not come forward with his alibi story earlier because "I go to school. I don't have time to."
We are convinced, as was the trial court, that the evidence overwhelmingly established Chan's guilt. Lack of remorse is properly utilized as a
reason for denying probation even when the defendant does not admit his guilt where, such as in this case, the evidence of guilt is overwhelming. The court's use of the lack of remorse factor was not error.
Chan argues that the trial court should not have imposed the middle term. The trial court must impose the middle term unless it finds circumstances mitigating or aggravating the offense. (Pen. Code, § 1170, subd. (b).) After noting all the aggravating factors supporting its denial of probation, the court explained that Chan's age and reduced level of involvement in the crime were mitigating factors. Impliedly, the court then balanced the four aggravating and two mitigating factors and determined that neither the upper nor the lower term was justified. We see no abuse of discretion. The court would have been justified in imposing the aggravated term since the aggravating factors outnumbered, and could have been found to outweigh, the mitigating factors. The middle term need not be additionally justified. The trial court did not err.
c. Consecutive Sentences
Chan incorporates the arguments of the other two defendants as to the propriety of the trial court's imposition of consecutive sentences. Since, as we have explained, the court was aware of its discretion to imp
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