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People v. Alioto5/21/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Following appellant's guilty plea to possession of marijuana for sale, the trial court denied probation and sentenced appellant to the upper term of three years in prison. Appellant contends the trial court abused its discretion. We affirm.
BACKGROUND
On April 24, 2001, a police officer responding to a call, together with the Marinwood Fire Department, found appellant unconscious in a vehicle. The officer found bags of marijuana and hashish in the vehicle, as well as bundles of $20 bills. Appellant stated that some of the marijuana belonged to him for medical use, and the rest belonged to the cannabis club. He also indicated that the money was to be used to pay attorney fees.
Appellant pleaded guilty based on the understanding that a prior conviction would be stricken. The plea also dismissed the charges pertaining to an assault appellant allegedly committed in August 2001. This later dismissal was preceded by a Harvey waiver. (People v. Harvey (1979) 25 Cal.3d 754.)
Appellant has a criminal history bearing on his request for probation. In 1990, he was convicted for selling cocaine and sentenced to three years in prison. In June 1993, he violated parole and was returned to custody for 10 months. In March 1998, he was convicted for threatening his ex-wife and sentenced to three years' probation and 120 days in jail. In August 1998, appellant was convicted for violating a restraining order and assaulting his ex-wife and ex-mother-in-law. He was sentenced to 12 months of probation and 60 days in jail. Appellant has also committed several traffic violations, including driving under the influence .
The probation officer's report notes that the arresting officer found several indices of drug sales, including a scale, a cell phone and a large quantity of contraband, in appellant's vehicle. The report also details appellant's numerous prior convictions and failures to observe parole and probation restrictions. Also, appellant was on probation at the time the crime was committed. The only mitigating factor described by the report is that appellant's prior performance on parole or probation was satisfactory. The probation report recommended that the court impose an aggravated term.
Shawn A. Johnston, Ph.D, performed a psychological evaluation of appellant and concluded that appellant has an underlying personality disorder. Dr. Johnston opined that appellant did not pose a threat or danger to the community, but that his personality disorder will make it difficult or impossible for appellant to stay out of future trouble. Nevertheless, Dr. Johnston did not believe that appellant is necessarily unsuitable for probation.
On March 11, 2002, the court imposed the aggravated term of three years, and appellant filed this timely appeal.
DISCUSSION
When considering an appeal from a sentence, we presume that the trial court exercised its discretion to achieve legitimate sentencing objectives unless the party attacking the sentence clearly shows that the decision was irrational or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977; People v. Podesto (1976) 62 Cal.App.3d 708, 723; People v. Giminez (1975) 14 Cal.3d 68, 73.) In the absence of such a showing, we will not interfere with the sentence chosen by the trial court. (See People v. Pre
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