People v. Freelove CA4/1 ( 2024 )

Filed 10/9/24 P. v. Freelove CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D082376
Plaintiff and Respondent,
v. (Super. Ct. No. SCD295760)
HOWARD RAYMOND FREELOVE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Melinda J. Lasater, Judge. Affirmed.
Britton Donaldson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A.
Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and
Respondent.
MEMORANDUM OPINION
Howard Raymond Freelove appeals from a final judgment of conviction
after he was denied probation and sentenced to three years in state prison.
Freelove argues the trial court erred by denying probation because it
(1) misunderstood its discretion to grant probation, despite the presumptive
ineligibility, based on the “unusual case” factors under California Rules of
Court, rule 4.413, and, as a result, (2) violated his constitutional due process
rights. We find this matter appropriately resolved by memorandum opinion
and affirm. (See generally People v. Garcia (2002) 97 Cal.App.4th 847.)
I.
Freelove was convicted of three charges, including assault with a
deadly weapon, making him presumptively ineligible for probation. (Pen.
Code, §§ 245, subd. (a)(1), 1203, subd. (e)(2).)
The eligibility section in Freelove’s probation report references
rule 4.413 and notes that section 1203(e)(2) permits an exception to
presumptive ineligibility “in the unusual case in which the interests of justice
would best be served” by granting probation. The probation officer “reviewed
the criteria for the unusual case” and concluded “none appear to apply.”
Next, the report describes the circumstances supporting a grant of probation
and those supporting denial.
At sentencing, the trial court found Freelove was “presumptively
ineligible for probation” as “discussed in the probation officer’s report.” The
court “adopt[ed] the circumstances supporting a grant . . . as well as those
supporting a denial of probation.” It thus denied probation.
Freelove’s counsel “submitted on [the] report of probation” without
objection or argument. After the court denied probation and imposed the
sentence, defense counsel did not object and did not argue any unusual case
factors applied.
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II.
We review sentencing decisions, like the finding that a case is or is not
unusual under rule 4.413, for abuse of discretion. (People v. Stuart (2007)
156 Cal.App.4th 165, 178.)
A.
Freelove claims the trial court misunderstood its sentencing discretion
whether to grant probation under rule 4.413, and thus erred by failing to
consider the unusual case factors when it found he was presumptively
ineligible. We disagree.
“Defendants are entitled to sentencing decisions made in the exercise of
the ‘informed discretion’ of the sentencing court.” (People v. Belmontes (1983)
34 Cal.3d 335, 348, fn. 8.) A court that misunderstands its discretion cannot
exercise informed discretion. (Ibid.) To prove error on this basis, an
appellant must “affirmatively demonstrate that the trial court misunderstood
its sentencing discretion.” (People v. Davis (1996) 50 Cal.App.4th 168, 172.)
We assume the court was aware of and followed applicable law—a “silent
record” is insufficient to overcome this assumption. (People v. Coleman
(2024) 98 Cal.App.5th 709, 724–725.)
Contrary to Freelove’s contention, the record shows the trial court
understood its discretion under rule 4.413. First, the court “adopt[ed] the
circumstances supporting a grant . . . as well as those supporting a denial of
probation,” indicating it was aware it could make an exception to Freelove’s
presumptive ineligibility. Second, the court acknowledged the eligibility
section in the probation report, which expressly referenced the exception
under rule 4.413 to the presumption of probation ineligibility but found none
of the unusual case criteria “appear to apply” to Freelove. By acknowledging
this discussion, the court implicitly confirmed it understood its discretion to
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find Freelove’s case was unusual, and thus eligible for probation, if the
relevant rule 4.413 factors applied. Accordingly, we conclude the trial court
understood its discretion whether to grant probation under rule 4.413.
Freelove also argues that, had the court understood its discretion, it
“would have, or should have,” found facts supporting an unusual case
exception under rule 4.413. The court, however, was not required to state its
reasons for finding Freelove did not overcome his statutory presumption of
ineligibility. (People v. Langevin (1984) 155 Cal.App.3d 520, 523.) As a
result, this argument strays toward challenging the “manner in which the
trial court exercise[d] its sentencing discretion,” a claim Freelove forfeited
when his counsel did not object on this basis at the sentencing hearing.
(People v. Scott (1994) 9 Cal.4th 331, 356.)
B.
Lastly, Freelove claims the trial court violated his federal and
California constitutional due process rights by denying probation based on its
“erroneous view” of its sentencing discretion. Because we conclude the trial
court understood its discretion, we need not address this argument.
III.
We affirm.
CASTILLO, J.
WE CONCUR:
DO, Acting P. J.
RUBIN, J.
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