California Court of Appeal Aug 1, 2014 No. D064109Unpublished
Filed 8/1/14 P. v. Mucetti CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D064109
Plaintiff and Respondent,
v. (Super. Ct. No. SCN316116)
ROBERT MARIO MUCETTI,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Sim Von
Kalinowski, Judge. Affirmed, and remanded with directions.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Stacy
Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Robert Mario Mucetti of unlawfully taking and driving a vehicle
(Veh. Code, § 10851, subd. (a)). Mucetti admitted four prior felony convictions and two
prison priors (Pen. Code, § 667.5, subd. (b)).
The trial court denied probation and sentenced Mucetti to five years; the first two
years to be served in local custody and the remaining three years in mandatory
Mucetti appeals challenging only the denial of his request for probation. Mucetti
recognizes he was presumptively ineligible for probation because of his prior felony
convictions, but argues his was an unusual case and that the trial court abused its
discretion in denying probation. We will find the trial court acted well within its
discretionary authority and affirm the denial of probation. However, the parties agree
that the abstract of judgment does not accurately reflect the custody credits awarded by
the trial court. We will direct the trial court to amend the abstract of judgment.
STATEMENT OF FACTS
Since Mucetti does not challenge either the sufficiency or the admissibility of the
evidence to support his conviction, we will include only a brief summary of the facts of
the offense in order to provide context for the discussion which follows.
On February 1, 2013, Mucetti was allowed to drive his mother's SUV on the
condition that he bring it back within three hours. He did not bring the SUV back.
Mucetti's mother (Ms. Maurizio) saw him with the vehicle two days later and again
demanded that he return it to her, however, he drove off. Eventually, Ms. Maurizio
called police and Mucetti was arrested on February 25, 2013, still in possession of the
SUV.
DISCUSSION
Mucetti contends the trial court abused its discretion in finding this was not an
unusual case, thus denying his request for probation. Mucetti principally argues the 2
nature of this crime, taking the SUV from his mother, is sufficiently minor as compared
to other car thefts, that this case is indisputably "unusual," thus denying probation was an
abuse of discretion. We are not persuaded.
A. Legal Principles
The decision to grant or deny probation is vested in the sound discretion of the
trial courts. Such decision will not be overturned on appeal unless the record
demonstrates the trial court's " 'decision is so irrational or arbitrary that no reasonable
person could agree with it.' " (People v. Stuart (2007) 156 Cal.App.4th 165, 179; People
v. Carmony (2004) 33 Cal.4th 367, 377.)
Penal Code section 1203, subdivision (e)(4) provides that "[e]xcept in unusual
cases where the interests of justice would be best served if the person is granted
probation, probation shall not be granted" to a person with two or more prior felony
convictions. The trial court's determination that a case is or is not unusual is reviewed for
abuse of discretion. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)
The analysis of whether a case is "unusual" includes not only consideration of the
offense, but also the offender. (Cal. Rules of Court, rule 4.413(c)(2)(A)-(C).) Thus in
order to evaluate an exercise of discretion we must examine the sentencing record, the
nature of the offense and the offender's criminal history.
B. Analysis
Most people could reasonably agree the theft in this case does not represent the
crime of the century. Mucetti's mother did not want to involve police and did not want
the case prosecuted. The SUV was returned undamaged. It is the relatively minor nature
of the offense which Mucetti relies upon to claim the trial court abused its discretion. 3
However, although the trial court recognized the nature of this particular crime, it was
also keenly aware of Mucetti's dismal criminal history.
Mucetti has suffered four felony convictions, including vehicle theft, grand theft,
possession of drugs and possession of a firearm by a felon. He has been granted
probation in the past, only to have it revoked. He has served a prison term and violated
the terms of his parole. Mucetti minimizes his criminal history. He notes his vehicle
theft conviction was in 1987 and the grand theft conviction in 1998. Thus he contends
his theft convictions are "old." Mucetti understates the significance of his criminal
history.
Since 1994, Mucetti has been convicted of petty theft (1994); being an unlicensed
driver (1994); corporal injury on a spouse (1997); unlicensed driver (1998); grand theft
(1998); false identity to a police officer (2001); felon in possession of a firearm (2004);
possession of a controlled substance (2007); and possession of a controlled substance,
with a prison sentence (2008). The best that can be said for Mucetti is that since he was
released from prison after the 2008 conviction, he had not received another conviction
until the current offense in 2013. Hardly a basis for celebration.
It seems rather obvious from the record, that a reasonable trial judge could
construe Penal Code section 1203, subdivision (e)(4) and the relevant rules of court to
indicate this was not an unusual case, which would overcome the presumption that
Mucetti was not eligible for probation. Perhaps another trial judge might have reached a
different conclusion, which only demonstrates that the trial court's sentencing discretion
is very broad.
4
This record does not come close to demonstrating an abuse of discretion. The
sentence was lawfully imposed.
C. Credits
The parties correctly note that the abstract of judgment does not accurately reflect
the custody credits awarded to Mucetti. Thus we will direct the trial court to amend the
abstract of judgment to reflect 131 days of actual presentence custody and 130 days of
conduct credits for a total of 261 days.
DISPOSITION
The trial court is directed to amend the abstract of judgment in accordance with
the views expressed in this opinion. In all other respects the judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
McINTYRE, J.
AARON, J.
5
AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not abuse its discretion in denying probation to a defendant with multiple prior felony convictions, as the record supported the finding that the case was not 'unusual.'
Issues
Did the trial court abuse its discretion in denying probation to a defendant presumptively ineligible due to prior felony convictions?
Does the abstract of judgment accurately reflect the custody credits awarded by the trial court?
Disposition. Affirmed and remanded with directions.
Quotations verified verbatim against the opinion
“We will find the trial court acted well within its discretionary authority and affirm the denial of probation.”
“The trial court's determination that a case is or is not unusual is reviewed for abuse of discretion.”
“This record does not come close to demonstrating an abuse of discretion.”