State v. Zazueta , 352 P.3d 149 ( 2015 )

2015 UT App 143THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
LAINA ELAINE ZAZUETA,
Defendant and Appellant.
Per Curiam Decision
No. 20140450-CA
Filed June 4, 2015
Third District Court, Salt Lake Department
The Honorable James T. Blanch
Nos. 131911650, 131904240
John B. Plimpton and Lisa J. Remal, Attorneys
for Appellant
Sean D. Reyes and Brett J. DelPorto, Attorneys
for Appellee
Before JUDGES GREGORY K. ORME, J. FREDERIC VOROS JR., and
JOHN A. PEARCE.
PER CURIAM:
¶1 In a consolidated appeal, Laina Elaine Zazueta appeals
her sentence on convictions for robbery and burglary, both
second degree felonies, and the revocation of probation and
imposition of previously suspended prison sentences for
attempted theft and possession of a firearm by a restricted
person, both third degree felonies. She claims that the district
court “failed to give adequate weight to her struggles with
anger, depression, and drug abuse and her sincere commitment
to overcome them.” We affirm.
¶2 In district court case number 131904240, Zazueta pleaded
guilty in July 2013 to reduced charges of attempted theft and
State v. Zazueta
possession of a firearm by a restricted person and was sentenced
to two concurrent prison terms of zero-to-five years. The district
court then suspended the prison terms, placing her on thirty-six
months of probation supervised by Adult Probation and Parole
(AP&P). She failed to report to AP&P to initiate probation and
was a fugitive from July 2013 until her December 2013 arrest on
the charges in case number 131911650. AP&P initiated
proceedings to revoke probation, which were based, in part,
upon an allegation that she committed the offenses charged in
case number 131911650. The district court first sentenced
Zazueta on case number 131911650 and then it considered the
order to show cause on the probation violation.
¶3 In case number 131911650, Zazueta entered guilty pleas to
robbery and burglary, both second degree felonies. The district
court reviewed a Presentence Investigation Report (PSI) that
recommended prison terms, noting that Zazueta scored in the
high risk category and presented a serious threat of violent
behavior. The PSI stated that her attitude was not conducive to
supervision in a less restrictive setting than incarceration and
that her violent behavior presented a safety risk to the
community. The PSI noted that Zazueta was given opportunities
for probation supervision with AP&P or other agencies and
failed to initiate probation supervision, absconded from
supervision, and failed to comply with court orders. The district
court received Zazueta’s clarifications to the PSI, which included
that she was affected by the 2011 death of her brother.
¶4 Zazueta requested another probation opportunity,
acknowledging that she should participate in substance abuse
treatment. Defense counsel noted that Zazueta was exposed to
methamphetamine at a young age but that now she had family
support from her mother and from Zazueta’s husband, who was
not involved in criminal activities or drug use. Zazueta stated
that, if given another probation opportunity, she intended to
complete substance abuse treatment, obtain her GED, find
20140450-CA 2 2015 UT App 143State v. Zazueta
employment, address her anger issues, and cooperate with any
other requirements of probation. Zazueta addressed the court
about her young age and desire to be with her child. The State
opposed probation, citing her lack of cooperation with
probation, lack of respect for court orders, escalating criminal
conduct, and already extensive criminal record. The State
requested concurrent prison sentences on these two charges, to
run consecutively to any sentence following the probation
revocation.
¶5 The district court sentenced Zazueta to concurrent prison
sentences of one-to-fifteen years on each count in case number
131911650. The court acknowledged her young age, but noted
the seriousness of the crimes and her “disturbing criminal record
over a very short period.” The court stated that the need to
impose the punishment required for the offenses Zazueta
committed could not be satisfied by putting her on probation.
¶6 Zazueta waived an evidentiary hearing and admitted four
of the allegations supporting the order to show cause in case
number 131904240. The district court reviewed the PSI for that
case, in which AP&P recommended that the court revoke
probation and impose the original sentence of concurrent terms
of zero-to-five years. The State concurred in that
recommendation. Zazueta asked that the case be closed. The
district court imposed the original sentences of two zero-to-five
year terms, to run concurrently with each other and
consecutively to the prison terms imposed in case number
131911650. The court stated that “given the gravity of the
offenses, the number of victims involved, and the history,
character, and rehabilitative needs of Ms. Zazueta, consecutive
sentences are appropriate” as between the two cases.
¶7 An appellate court “will overturn a sentencing decision
only if it is clear that the actions of the [sentencing] judge were
so inherently unfair as to constitute an abuse of discretion.” State
v. Killpack, 2008 UT 49, ¶ 18, 191 P.3d 17 (citations and internal
20140450-CA 3 2015 UT App 143State v. Zazueta
quotation marks omitted)(emphasis in original). A district court
has broad discretion in deciding whether or not to order
probation, because the “granting or withholding of probation
involves considering intangibles of character, personality and
attitude.” State v. Rhodes, 818 P.2d 1048, 1049 (Utah Ct. App.
1991) (citations and internal quotation marks omitted). “An
appellate court reviews the district court’s decision to grant,
modify or revoke probation for abuse of discretion.” State v.
Brooks, 2012 UT App 34, ¶ 8, 271 P.3d 831.
¶8 Zazueta contends that the district court abused its
discretion in imposing prison terms in the consolidated cases
because the court “failed to give adequate weight to [her]
struggles with anger, depression, and drug abuse and her
sincere commitment to overcome them.” She also argues that in
the probation revocation case (number 131904240) the district
court “failed to realize that there was no benefit in sentencing
[her] to prison time in addition to her sentence” in case number
131911650. The sentences imposed were within the statutory
range, and the record demonstrates that the district court
considered and weighed the legally relevant factors. We cannot
conclude that the district court’s weighing of the relevant factors
constituted an abuse of discretion. See Killpack, 2008 UT 49, ¶ 59
(“[S]everal mitigating circumstances claimed by a defendant
may be outweighed by a few egregious aggravating factors.”).
Furthermore, the district court considered Zazueta’s argument
that there was no benefit to imposing the original sentence in
case number 131904240. The district court disagreed, stating that
the imposition of consecutive sentences allowed latitude to the
Board of Pardons in determining the time to be served in order
to address Zazueta’s rehabilitative needs. We do not disturb that
determination.
¶9 Accordingly, we affirm.
20140450-CA 4 2015 UT App 143