People v. Grayson CA3 ( 2016 )

Filed 2/17/16 P. v. Grayson CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Tehama)
----
THE PEOPLE,
Plaintiff and Respondent, C078351
v. (Super. Ct. Nos. NCR83779,
NCR87557 )
PAUL ERIC GRAYSON,
Defendant and Appellant.
Appointed counsel for defendant Paul Eric Grayson has asked this court to review
the record to determine whether there are any arguable issues on appeal. (People v.
Wende (1979) 25 Cal.3d 436 (Wende).) After reviewing the record, we affirm the
judgment.
We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On March 7, 2012, defendant sold methamphetamine to a confidential informant.
He was charged in Tehama County case No. NCR83779 with transportation and sale of
methamphetamine. (Health & Saf. Code, former § 11379, subd. (a), Stats. 2013, ch. 504,
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§ 2.)1 It was also alleged defendant had a prior drug conviction (Health & Saf. Code,
§ 11370.2, subd. (c)) and had served three prior prison terms (Pen. Code, § 667.5, subd.
(b)). On July 29, 2013, defendant was charged in Tehama County case No. NCR87557
with failure to appear in Tehama County case No. NCR83779, with the special
allegations he was released on bail or his own recognizance at the time and has served
three prior prison terms. (Pen. Code, §§ 1320, subd. (b), 12022.1, 667.5, subd. (b).)
Defendant pleaded no contest to transportation and sale of methamphetamine
(Tehama County case No. NCR83779) and failure to appear (Tehama County case
No. NCR87557), and the remaining charges in both cases were dismissed. The trial court
sentenced him to serve the upper term of four years for the transportation and sale of
methamphetamine, and eight months consecutive (one-third the midterm) for the failure
to appear. It also imposed various fines and fees, and awarded defendant 75 days of
presentence custody credit.
Defendant appeals. He did not obtain a certificate of probable cause. (Pen. Code,
§ 1237.5.)
Appointed counsel filed an opening brief that sets forth the facts of the cases and
requests this court to review the record to determine whether there are any arguable
issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant filed a supplemental brief
contending he was wrongly denied probation based on the probation officer’s
representation that he lacked remorse. He claims this was error because he wrote a letter
to the trial court in which he did express remorse. We conclude there was no error.
1 Effective January 1, 2014, the Legislature amended Health and Safety Code
section 11379 to define “transports” as “transport for sale.” (Health & Saf. Code,
§ 11379, subd. (c), Stats. 2013, ch. 504, § 2.) That amendment, while retroactively
applicable to defendant, does not change the result here, as defendant was charged with,
and subsequently convicted of, transportation and sale of methamphetamine. (See In re
Estrada (1965) 63 Cal.2d 740.)
2
The trial court’s decision to deny probation will be reversed only upon a clear
showing of abuse of discretion. (People v. Martinez (1985) 175 Cal.App.3d 881, 896.)
Here, in denying probation, the trial court noted, along with defendant’s numerous prior
convictions and prior poor performance on probation and parole, that defendant lacked
remorse. Lack of remorse is a proper factor to consider when deciding whether to grant
probation. (Cal. Rules of Court, rule 4.414(b)(7); People v. Leung (1992) 5 Cal.App.4th
482, 507.) While defendant did file a statement in which he set forth some of his life
struggles and why he committed his offense, the credibility and weight to be accorded to
this letter are matters exclusively within the province of the trial court. (People v.
Stewart (2000) 77 Cal.App.4th 785, 790; see also People v. Hunt (1985) 174 Cal.App.3d
95, 103 [“[I]n determining the facts, the trial court is not bound by uncontradicted
statements of the defendant”].)
Moreover, regardless of the trial court’s determination as to defendant’s level of
remorse, it is not reasonably probable the trial court would have granted defendant
probation. (See People v. Weaver (2007) 149 Cal.App.4th 1301, 1318-1319, disapproved
on other grounds in People v. Cook (2015) 60 Cal.4th 922, 939.) Defendant has at least
six prior felony convictions. Accordingly, as the trial court found, he was ineligible for
probation in the absence of unusual circumstances. (Pen. Code, § 1203, subd. (e)(4); Cal.
Rules of Court, rule 4.413.) No such circumstances are present here. As expressly found
by the trial court, the crime did not differ significantly from other similar crimes.
Defendant has numerous prior convictions and has previously performed poorly on
probation and parole. And there were no facts reducing defendant’s culpability, but not
amounting to a defense. (Cal. Rules of Court, rule 4.413(c).) Accordingly, defendant
was not wrongly denied probation.
Having also undertaken an examination of the entire record, we find no arguable
error that would result in a disposition more favorable to defendant.
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DISPOSITION
The judgment is affirmed.
/s/
HOCH, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
BUTZ, J.
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