People v. Faber CA1/2 ( 2021 )

Filed 1/4/21 P. v. Faber CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A159465
v.
SCOTT ANDREW FABER, (Mendocino County Super. Ct.
No. SCUKCRCR19330191)
Defendant and Appellant.
Scott Andrew Faber was convicted pursuant to a plea agreement of
second degree burglary and misdemeanor petty theft. These two convictions
were also the basis for probation violations in two other cases. Appellant now
appeals, contending the trial court abused its discretion when it denied his
request for a split sentence and instead sentenced him to a straight sentence
of three years in local custody. For the reasons discussed in this opinion, we
shall reject this claim and affirm the judgment.
PROCEDURAL BACKGROUND
Prior Relevant Cases
On January 3, 2019, appellant was charged by criminal complaint in
case No. MCUK-CRNT-19-30030-001 (case No. 30030)1 with misdemeanor
On August 28, 2020, we granted appellant’s unopposed request for
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judicial notice of the misdemeanor complaint in case No. 30030 and the felony
complaint in case No. case No. SCUK-CRCR-19-33019-001 (case No. 33019).
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trespass (Pen. Code, § 602, subd. (t)(1)).2 On January 4, appellant pleaded no
contest to the charge, and the court suspended imposition of judgment and
placed appellant on 24 months of summary probation.
On March 22, 2019, appellant was charged by criminal complaint in
case No. MCUK-CRNT-19-30773-001 (case No. 30773) with misdemeanor
identity theft (§ 530.5, subd. (a)); misdemeanor forgery (§ 470, subd. (a)); and
five counts of misdemeanor theft of access card (§ 484g). On March 26,
appellant pleaded no contest to the charges and the trial court placed him on
summary probation for 36 months. The court also found appellant in
violation of probation in case No. 30030, and revoked and reinstated
probation in that case.
Several petitions for revocation of probation were subsequently filed
between April and August 2019 in case Nos. 30030 and 30773, alleging, inter
alia, failure to obey all laws. Appellant admitted the violations and probation
was reinstated in each case.
Current Cases
On October 2, 2019, appellant was charged by criminal complaint in
case No. MCUK-CRNT-19-32816-001 (case No. 32816) with misdemeanor
petty theft (§§ 484, subd. (a), 488, 490.2).
On October 18, 2019, appellant was charged by criminal complaint in
case No. 33019 with second degree burglary (§§ 459, 460, subd. (b)). The
complaint also alleged that appellant had served three prior prison terms,
pursuant to section 667.5, subdivision (b).
2All further statutory references are to the Penal Code unless
otherwise indicated.
2
As a result of the charges in these two cases, petitions to revoke
probation were filed in October 2019 in case Nos. 30030 and 30773, alleging,
inter alia, appellant’s failure to obey all laws.
On November 14, 2019, appellant entered open pleas in case
Nos. 32816 and 33019, pleading no contest to both charges and admitting the
three prior prison term allegations. The court found that appellant’s pleas
were a sufficient factual basis to find that he had violated his probation in
case Nos. 30030 and 30773.
At the January 21, 2020 sentencing hearing, the court struck the three
prior prison term enhancements, based on the change in the law. (See
§ 667.5, subd. (b).)3 Then, following the arguments of counsel, the court
denied appellant’s request for a split sentence and imposed an upper term of
three years in local custody for the second degree burglary conviction in case
No. 33019, and a concurrent term of 60 days for the misdemeanor petty theft
conviction in case No. 32816. The court also terminated probation in case
Nos. 30030 and 30773.
On January 23, 2020, appellant filed a notice of appeal.
FACTUAL BACKGROUND
The stipulated factual basis for the second degree burglary plea in case
No. 33019 was as follows: On October 15, 2019, appellant “broke into
Mountain Mike’s Pizza, a commercial business, while that business was
3 Under the version of section 667.5 in effect when appellant was
charged in this matter, subdivision (b) required trial courts to impose a one-
year enhancement for each prior prison term served for any felony. In 2019,
the Legislature passed Senate Bill No. 136, which took effect on January 1,
2020, and which made this enhancement inapplicable to appellant. (See
§ 667.5, subd. (b); Legis. Counsel’s Dig., Sen. Bill No. 136 (2019-2020 Reg.
Sess.) ch. 590.)
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closed. He entered that business with the intent to commit theft and did
steal various items, including electronics, tablets, and beer.”
The misdemeanor petty theft charge in case No. 32816 was based on
the following allegation: On September 2, 2019, appellant took mail, a
notebook, and an endorsed check belonging to the victim, all with a value of
less than $950.
DISCUSSION
Appellant contends the court abused its discretion when it denied his
request for a split sentence and instead sentenced him to a straight sentence
of three years in local custody.
I. Trial Court Background
At the January 21, 2019 sentencing hearing, the court first stated that
it did not intend to impose the three prior prison term enhancements, due to
the change in the law. (See § 667.5, subd. (b).)
Defense counsel then asked the court to impose the mitigated term and
a split sentence, with two-thirds of the sentence to be served on mandatory
supervision. This request was based on the fact that appellant entered an
early admission with no promises in exchange for that admission, and that he
had expressed remorse for his conduct. Counsel also argued that appellant
has a serious drug addiction, which had played a role in the burglary, with
his addiction driving his criminal behavior. In addition, while in jail,
appellant had applied to and been accepted into multiple drug treatment
programs. Counsel believed the fact that appellant had opportunities in the
past to participate in treatment and had failed, showed how significant his
methamphetamine addiction was. Counsel stated that the mitigated term
with a longer split sentence was appropriate because appellant wished to
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participate in an 18-month treatment program to which he had been
accepted.
The prosecutor argued that the court should impose the aggravated
term and deny the request for a split sentence. The prosecutor agreed with
the probation department’s analysis that every factor in aggravation relating
to appellant applied, including the facts that appellant was on two relatively
recent grants of probation at the time he committed the present offense, one
of which included seven separate counts of theft related offenses; he had a
lengthy prior criminal record, which included four felonies and 26
misdemeanors over the past 20 years; and he had previously violated
probation on multiple occasions. Although appellant’s early admission of
responsibility was a mitigating factor, the prosecutor believed the many
aggravating factors outweighed that mitigating factor. Regarding the split
sentence, the prosecutor noted that the probation department had initially
recommended a split sentence when appellant was facing a six-year sentence,
which had included the three years for the prior prison terms. The
prosecutor believed that with a longer sentence, a split sentence could be
beneficial, but appellant’s record and recent poor performance on probation
“did not bode well that he would actually follow through with his term of
mandatory supervision.”
In the presentence report, the probation officer had stated that
appellant faced a minimum of six years in local prison, and that “[i]f a split
sentence were imposed as recommended (four years confinement and two
years on Mandatory Supervision), a balance of 651 actual days of custody
would remain as of sentencing.” The probation officer believed that “[t]he
combination of confinement time, coupled with residential treatment and
supervision may reduce the risk of danger [appellant] poses to the
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community” and encourage him to pay victim restitution. Probation had
therefore recommended “a period of long-term confinement coupled with a
more modest period of supervision” to give appellant “another opportunity to
follow through with his rehabilitation goals.”
At the sentencing hearing, however, based on the court’s modification
of appellant’s sentence from six years to three years, coupled with appellant’s
prior performance on probation, the probation department changed its
recommendation to imposition of a straight sentence. Probation would then
encourage appellant to seek rehabilitative services once he completed his
sentence.
Appellant also addressed the court at the sentencing hearing,
apologizing for his conduct that was a result of his drug addiction and stating
that he needed help with his addiction for the sake of his family, himself, and
the community.
The court first explained its decisions to sentence appellant to the
aggravated term on the second degree burglary count, as follows. “I have
reviewed the reports, and [appellant], you have one of the longest criminal
histories that I have seen here recently. And I do see that some of your prior
misdemeanor convictions were drug related. Of the, I believe, 26
misdemeanor convictions, six of them are [for] being under the influence or
being in possession of controlled substances. But by far the majority of your
criminal convictions, including the felonies are theft offenses, which is what
you are being sentenced on in—in the two cases here, one felony and one
misdemeanor. And then being resentenced on two probation misdemeanor
violations.
“Of the four felonies there was one crime of violence. You went to
prison before you were placed on community supervision after being
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committed to local prison before. And during those period[s] of incarceration
you were offered treatment. [¶] In fact, you got into one of the best treatment
programs, Delancey Street, but never completed the program. Apparently
you walked away from the program. Apparently you were accepted into and
then walked away from both Solidarity House and Victory Outreach. I am
not as familiar with Solidarity House, but Victory Outreach is another good
program. [¶] . . . [¶]
“When I look at your—the factors that . . . the Rules of Court require
that I look at, it’s not even close that this is an aggravated sentence given the
factors in aggravation versus the factors in mitigation. . . . [¶] But it is clear
to this court based on—on those factors that the court is required to consider,
including the number of prior convictions, the seriousness of those prior
convictions which include reckless evading from a peace officer, and then
felony domestic violence, a total of 32 prior convictions, and the fact you were
on probation in two misdemeanors and had another misdemeanor out there
for theft, that this—that the factors in aggravation outweigh . . . the sole
factor in mitigation[,] that you do have a long-standing methamphetamine
addiction. . . .
“So I am going to impose the aggravated sentence of three years and
that will be served in local prison, pursuant to [section 1170, subdivision
(h)].”
The court then addressed appellant’s request for a split sentence, as
follows. “I am not totally convinced the most recent offense, [appellant], was
based on a drug addiction. What you stole were electronics, laptops or
tablets, alcohol and beer also. But you have property, at least according to
the declarations, that if drug addi[c]tion were your reason for stealing that
you could have sold as well. You have a couple of Harleys and other things
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that—that also could address a drug addiction. So I think, just to be candid
. . . that you have adopted a criminal lifestyle, that you like stealing things
and it’s your history. [¶] . . . . I want you to get help. I don’t want you to be
in this position. You are right. . . . Your family needs a person who is going
to provide [for] them consistently and set a good example. You are 40 years
old. If you are going to change, you have had the opportunities. You were
given the programs. And I think that this is just who you have decided you
want to be. It breaks my heart, probably breaks your family’s heart. But you
are a smart guy, [appellant]. You know what to do, you know how to change.
You know how to take advantage of things and I don’t think you want to at
this point.
“So I am going to deny a split and make this a straight sentence. . . .”
II. Legal Analysis
A. Governing Law
Under the Criminal Justice Realignment Act of 2011 (Realignment
Act), “ ‘qualified persons convicted of nonserious and nonviolent felonies are
sentenced to county jail instead of state prison. [Citation.] Trial courts have
discretion to commit the defendant to county jail for a full term in custody or
to impose a hybrid or split sentence consisting of county jail followed by a
period of mandatory supervision.’ [Citation.]” (People v. Camp (2015) 233
Cal.App.4th 461, 467; accord, People v. Catalan (2014) 228 Cal.App.4th 173,
178.) “Split sentences are the preferred disposition in eligible cases because
they provide released prisoners with close supervision and supportive
services designed to substantially reduce the risk of recidivism.” (People v.
Arce (2017) 11 Cal.App.5th 613, 616; see § 1170, subd. (h)(5)(A).)
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Subdivision (h) of section 1170 provides in relevant part:
“(2) . . . a felony punishable pursuant to this subdivision shall be
punishable by imprisonment in a county jail for the term described in the
underlying offense. [¶] . . . [¶]
“(5)(A) Unless the court finds, in the interests of justice, that it is not
appropriate in a particular case, the court, when imposing a sentence
pursuant to paragraph (1) or (2), shall suspend execution of a concluding
portion of the term for a period selected at the court’s discretion.
“(B) The portion of a defendant’s sentenced term that is suspended
pursuant to this paragraph shall be known as mandatory supervision . . . .”
(§ 1170, subd. (h)(2), (5).)4
California Rules of Court, rule 4.4155 addresses the Realignment Act’s
presumption in favor of a split sentence in appropriate cases and sets forth
certain criteria a court may consider in determining whether to deny such a
sentence. Rule 4.415 provides in relevant part:
“(a) Presumption
“Except where the defendant is statutorily ineligible for suspension of
any part of the sentence, when imposing a term of imprisonment in county
jail under section 1170(h), the court must suspend execution of a concluding
portion of the term to be served as a period of mandatory supervision unless
the court finds, in the interests of justice, that mandatory supervision is not
appropriate in a particular case. Because section 1170(h)(5)(A) establishes a
statutory presumption in favor of the imposition of a period of mandatory
4Amendments to section 1170, subdivision (h) that took effect after
appellant was sentenced in 2019 did not alter these provisions of the statute.
(See Stats. 2020, ch. 29, § 14, eff. Aug. 6, 2020.)
5 All further rule references are to the California Rules of Court.
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supervision in all applicable cases, denials of a period of mandatory
supervision should be limited.
“(b) Criteria for denying mandatory supervision in the interests
of justice
“In determining that mandatory supervision is not appropriate in the
interests of justice under section 1170(h)(5)(A), the court’s determination
must be based on factors that are specific to a particular case or defendant.
“Factors the court may consider include:
“(1) Consideration of the balance of custody exposure available after
imposition of presentence custody credits;
“(2) The defendant’s present status on probation, mandatory
supervision, postrelease community supervision, or parole;
“(3) Specific factors related to the defendant that indicate a lack of
need for treatment or supervision upon release from custody; and
“(4) Whether the nature, seriousness, or circumstances of the case or
the defendant’s past performance on supervision substantially outweigh the
benefits of supervision in promoting public safety and the defendant’s
successful reentry into the community upon release from custody. [¶] . . . [¶]
“(d) Statement of reasons for denial of mandatory supervision
“Notwithstanding rule 4.412(a), when a court denies a period of
mandatory supervision in the interests of justice, the court must state the
reasons for the denial on the record.” (Rule 4.415(a), (b), (d).)
B. The Court’s Denial of Appellant’s Request for a Split Sentence
At the sentencing hearing, after discussing the criteria supporting
imposition of an aggravated term, the court discussed its reasons for denying
appellant’s request for a split sentence. It did not believe that the burglary
offense was a result of appellant’s methamphetamine addiction, considering
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what he stole—which included alcohol and beer—and the fact that he had
personal property, including two “Harleys,” which he could have sold if he
was stealing solely to support his addiction. Based on the evidence in the
record, the court expressed its belief that appellant had “adopted a criminal
lifestyle” and “like[d] stealing things and it’s your history.” Appellant’s
“history” of theft as a criminal lifestyle, to which the court referred, included
the facts that he had a total of 32 prior convictions, the vast majority of which
were not related to drugs but instead were theft related; that he was
currently on probation for two theft-related misdemeanor convictions; and
that he had just been convicted of misdemeanor theft.
These were appropriate factors for the court to consider in determining
that a split sentence was not in the interests of justice. First, under rule
4.415(b)(2), criteria for denying mandatory supervision include “[t]he
defendant’s present status on probation.” In addition, the court’s
consideration of appellant’s numerous theft-related convictions as an
indication that he had adopted a criminal lifestyle beyond the exigencies of
his drug addiction was permissible under rule 4.415, given that the factors
set forth in that provision are not all inclusive. (See rule 4.415 (b) [court’s
determination that mandatory supervision is not appropriate “must be based
on factors that are specific to a particular case or defendant,” and “[f]actors
the court may consider include: [four listed factors]”], italics added; see also
rule 4.408(a) [“The listing of factors in these rules for making discretionary
sentencing decisions is not exhaustive and does not prohibit a trial judge
from using additional criteria reasonably related to the decision being
made”].)
The court also based its decision to impose a straight sentence on
appellant’s previous opportunities to participate in programs and address his
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addiction: “If you are going to change, you have had the opportunities. You
were given the programs. And I think that this is just who you have decided
you want to be. . . . You know what to do, you know how to change. You
know how to take advantage of things and I don’t think you want to at this
point.” The court had just discussed in more detail these previous
“opportunities” and “programs” when it imposed an aggravated sentence,
observing that appellant had been “placed on community supervision after
being committed to local prison before. And during those period[s] of
incarceration you were offered treatment. [¶] In fact, you got into one of the
best treatment programs, Delancey Street, but never completed the program.
Apparently you walked away from the program. Apparently you were
accepted into and then walked away from both Solidarity House and Victory
Outreach.”
The court reasonably considered appellant’s history of repeatedly
“walk[ing] away” from treatment programs in determining that a split
sentence was not appropriate in this case. (See rule 4.415(4) [criteria for
denying mandatory supervision include “[w]hether the . . . defendant’s past
performance on supervision substantially outweigh the benefits of
supervision in promoting public safety and the defendant’s successful reentry
into the community upon release from custody”].)
Appellant takes particular exception with the court’s decision to impose
a straight sentence after the probation department changed its
recommendation from a split sentence—with “a period of long-term
confinement coupled with a more modest period of supervision”—to a straight
sentence, based on the fact that appellant was no longer facing a term of six
years, once the three one-year prior prison term enhancements were stricken.
Instead, probation would encourage him to seek rehabilitative services after
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he completed his custodial sentence. According to appellant, other than the
shorter sentence, the same facts existed as when probation had recommended
a split sentence, and “it was not appropriate to find him no longer amenable
for a split sentence, that would have given him the opportunity to have
supervision to ensure success in drug treatment and rehabilitation simply
because he was facing a shorter term, with the striking of the prior prison
enhancements.”
As respondent notes—and as defense counsel acknowledged at the
sentencing hearing—the length of time of custody exposure is one of the
listed factors the court may consider in determining whether to deny a split
sentence in the interests of justice. (Rule 4.415(b)(1) [“Consideration of the
balance of custody exposure available after imposition of presentence custody
credits”].) The probation department had initially recommended a split
sentence based on an assumption that appellant would serve a lengthy
amount of time in custody, followed by a modest period of supervision. Once
the three years were stricken from appellant’s sentence, and considering that
he was also entitled to 196 days of custody credits, neither the probation
department nor the court was unreasonable in viewing a split sentence—
which would require a much shorter time in custody—as inappropriate under
the circumstances. (See rule 4.415(b)(1); see also 4.415(b) [court’s
determination that mandatory supervision is not appropriate must be based
on factors specific to the case or the defendant].)
Based on the foregoing, we cannot say that the court abused its broad
discretion in determining, in the interests of justice, that a split sentence was
not appropriate in the particular circumstances of this case. (See People v.
Camp, supra, 233 Cal.App.4th at p. 467; People v. Stuckey (2009) 175
Cal.App.4th 898, 916 [“What the interests of justice require in a particular
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case constitutes a question uniquely addressed to the broad judicial
discretion of the trial court”]; accord, People v. Catalan, supra, 228
Cal.App.4th at p. 179; see also § 1170, subd. (h)(5)(A).)
DISPOSITION
The judgment is affirmed.
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_________________________
Kline, P.J.
We concur:
_________________________
Stewart, J.
_________________________
Miller, J.
People v. Faber (A159465)
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