People v. Ryan CA3 ( 2024 )

Filed 2/26/24 P. v. Ryan 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Nevada)
----
THE PEOPLE,
C097312
Plaintiff and Respondent,
(Super. Ct. No. F20000161B)
v.
RICHARD EVERN RYAN,
Defendant and Appellant.
Defendant Richard Evern Ryan pleaded guilty to grand theft in 2021 and the trial
court placed him on probation for two years. After finding defendant had violated
probation, the trial court terminated probation and sentenced defendant to the middle
term of two years in county jail. On appeal, defendant argues the trial court should not
have relied on his criminal history in imposing the middle term because that history was
not based on a certified record of conviction.
We conclude defendant forfeited his challenge by failing to object in the trial
court. We will affirm the judgment.
BACKGROUND
Defendant stole a generator from his former landlord and pleaded guilty to grand
theft. (Pen. Code, § 487, subd. (a).)1 The trial court suspended imposition of sentence
1 Undesignated statutory references are to the Penal Code.
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and placed defendant on probation for two years. A probation officer noted in a
June 2021 probation report that he had reviewed records pertaining to defendant from
the following sources: the California Law Enforcement Telecommunications System
(CLETS), the Federal Bureau of Investigation (FBI), the Department of Motor Vehicles
(DMV), and the trial court. Review of the records indicated that defendant had multiple
convictions, including: (1) a 2003 juvenile disposition for felony grand theft (§ 487);
(2) a 2005 juvenile disposition for attempted first degree burglary (§ 459); (3) six
misdemeanor convictions between 2009 and 2017; (4) a conviction for second degree
burglary in 2017 (§ 459); and (5) four misdemeanor convictions between 2017 and 2021.
The probation report noted that defendant had been on probation when he committed the
grand theft.
Later that year, two police detectives conducted a probation search of defendant at
his apartment. They searched defendant’s bedroom and found a significant amount of
controlled substances and paraphernalia, including Fentanyl (over 43 grams), a small
amount of methamphetamine, and pills in a prescription bottle for Zoloft. They also
found a gun. The probation department filed a probation violation report.
A probation officer noted in an August 2022 probation report that he had reviewed
defendant’s CLETS, FBI, DMV, and local court records and found the same convictions
as reported in the June 2021 probation report.
The trial court terminated defendant’s probation and sentenced him to county jail
for the middle term of two years. The trial court said it selected the middle term because
the circumstances in aggravation outweighed the circumstances in mitigation.
Specifically, the trial court said defendant took advantage of a position of trust, his prior
convictions as an adult or sustained petitions as a juvenile were numerous or increasing in
seriousness, he served a prior prison term, he was on two grants of probation at the time
of the offense, his prior performance on probation was largely unsatisfactory, and he was
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assessed as a high risk to re-offend. Defendant did not object to the sentence at the time
it was imposed.
In October 2022, defendant moved to recall his sentence, arguing that the
probation report impermissibly contained his juvenile adjudications and the trial court
erroneously relied on those adjudications during sentencing. Defendant asked the trial
court to consider whether the striking of those juvenile adjudications would alter the
sentence. The trial court declined to recall defendant’s sentence, explaining that although
it had mentioned defendant’s juvenile record during the sentencing hearing, it ultimately
did not rely on the juvenile record for sentencing.
DISCUSSION
Defendant cites section 1170, subdivision (b)(3) for the proposition that the trial
court could only consider defendant’s prior convictions for the purposes of sentencing if
they were established by a certified record of conviction. He acknowledges that the cases
which have addressed section 1170 involve imposition of an upper term sentence,
whereas here the trial court sentenced defendant to the middle term. But he argues the
statute appears to suggest that in imposing any sentence that would be unduly harsh in
light of the offense, the trial court should not rely on the probation officer’s report unless
it is accompanied by a certified record of conviction. He further argues his juvenile
criminal record was sealed and inadmissible.
The People respond that defendant forfeited his challenge because he did not
object on these grounds in the trial court, and in any event, the challenge under
section 1170 fails because the trial court imposed the middle term. Although there
appears to be merit in both of the People’s arguments, it is sufficient for us to conclude
that defendant forfeited his challenge.
Prior to January 1, 2022, section 1170, subdivision (b) stated: “When a judgment
of imprisonment is to be imposed and the statute specifies three possible terms, the
choice of the appropriate term shall rest within the sound discretion of the court.”
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(Stats. 2020, ch. 29, § 14.) However, the Legislature amended section 1170 via Senate
Bill No. 567 (2021-2022 Reg. Sess.) to now require a trial court, in its sound discretion,
to impose the lower or middle term, unless there are “circumstances in aggravation of the
crime that justify the imposition of a term of imprisonment exceeding the middle term
and the facts underlying those circumstances have been stipulated to by the defendant or
have been found true beyond a reasonable doubt at trial by the jury or by the judge in a
court trial.” (§ 1170, subd. (b)(2).) “[T]he court may consider the defendant’s prior
convictions in determining sentencing based on a certified record of conviction without
submitting the prior convictions to a jury.” (§ 1170, subd. (b)(3).)
Defendant was sentenced in August 2022, long after the amendments to
section 1170 came into effect. In failing to object in the trial court to the adequacy
of the evidence of defendant’s criminal history, including his juvenile criminal
history, defendant forfeited his challenge on appeal. (See People v. Garcia (2010)
185 Cal.App.4th 1203, 1218 [“ ‘[c]laims of error relating to sentences “which, though
otherwise permitted by law, were imposed in a procedurally or factually flawed manner”
are waived on appeal if not first raised in the trial court’ ” (italics omitted)].)
DISPOSITION
The judgment is affirmed.
/S/
MAURO, Acting P. J.
We concur:
/S/
DUARTE, J.
/S/
MESIWALA, J.
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