People v. Nall CA3

Filed 12/14/15 P. v. Nall CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C079208

Plaintiff and Respondent, (Super. Ct. No. 14F01542)

v.

JASON NALL,

Defendant and Appellant.

Defendant Jason Nall is a repeat thief and a felon in possession of guns who has been given many, many chances on probation and failed virtually all of them. Here a jury found him guilty of attempted car theft and of car theft. Defendant got into a car that was running but that was parked in front of a house. When the owner came out of the house and confronted him, defendant hit the victim in the jaw, and then defendant fled on foot to the driveway of a down-the-street neighbor of the first victim. At that driveway, defendant broke into a locked car that was also running. When the owner of that second car tried to stop him, defendant (who was then actually driving the car) hit her with the

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car. Defendant was on federal probation at the time and had just cut off his ankle monitor. For these offenses and three prior prison terms, the trial court sentenced defendant to county jail for eight years and six months, refusing to split the sentence between county jail and a period of mandatory supervision. Defendant’s sole contention on appeal is that “the court abused its discretion in declining to abide by the probation officer’s recommendation that [defendant] serve a ‘split sentence.’ ” According to defendant, that abuse of discretion is demonstrated by the fact that neither the court nor the probation report mentioned as a mitigating factor that “[t]he defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime” (Cal. Rules of Court, rule 4.423(b)(2)), so “the court cannot be assumed to have considered this [a] mitigating factor.” Also according to defendant, the court should have considered his “[un]supportive” upbringing. We disagree there was an abuse of discretion. The court was well aware of the facts that defendant recounts, but the court did not consider these facts mitigating here. (See People v. Zamora (1991) 230 Cal.App.3d 1627, 1637 [a trial court may disregard mitigating factors without stating its reasons].) Instead, the court was within its discretion to rely on defendant’s repeated failures on probation, including his current status on probation when the current crimes were committed, in determining that a split sentence would be inappropriate. (See Cal. Rules of Court, rule 4.415(b) [criteria for denying mandatory supervision “must be based on factors that are specific to a particular case or defendant” and “may” include “defendant’s present status on probation”].) We explain below. The court stated it had read the probation report, and the probation report contained the facts that defendant here states the court should have considered, namely the following: Defendant was raised by his mother and stepfather, the latter with whom defendant had a poor relationship because the stepfather was an argumentative drunkard.