People v. Gagush CA3

Filed 8/30/16 P. v. Gagush CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte) ----

THE PEOPLE,

Plaintiff and Respondent, C079825

v. (Super. Ct. No. CM042617)

CHRISTOPHER WALTER GAUGUSH,

Defendant and Appellant.

Defendant Christopher Walter Gaugush pleaded no contest to possession of a controlled substance in jail. The trial court sentenced him to the upper term of four years in prison. Defendant now contends the trial court abused its discretion in imposing the upper term because it failed to consider numerous mitigating factors. Finding no merit in defendant’s arguments, we will affirm the judgment. BACKGROUND During a jail contraband search, jail officials found defendant in possession of tramadol pills, marijuana and tobacco. Defendant initially lied about how he obtained the items but eventually admitted bringing the contraband into jail with him when he was

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booked two days earlier. He ultimately pleaded no contest to possessing a controlled substance in jail (Pen. Code, § 4573.6, subd. (a)) in exchange for the dismissal with a Harvey1 waiver of prior prison term allegations. Defendant represented himself at sentencing. The trial court noted it had considered “quite a bit of material,” including the probation report, a letter from defendant, and a letter written in support of defendant. The trial court explained it was inclined to follow probation’s recommendation and impose the upper term. Defendant argued for the middle term, explaining his father was ill and he wished to return to him as soon as possible. Defendant also said he suffered from a drug addiction and he had enrolled at Butte College. He attributed his parole violations to Proposition 83. As to his current offense, he explained he had in fact agreed to hold the drugs for someone else, but added: “I totally take my responsibility in the matter.” The prosecutor pointed out that although defendant now claimed he held the drugs for someone else, he previously admitted bringing the drugs with him into jail. The prosecutor said that since the 1990’s there was no time when defendant has not been on probation or in custody, describing him as an “untreated sex offender” who was “at high risk of reoffense.” Defendant responded that it had been 12 years since his sex offense. The trial court imposed the upper term of four years, noting defendant’s record indicated a pattern of regular criminal conduct. The trial court said it appreciated defendant’s comments but the following factors warranted imposing the upper term: “Your prior convictions as an adult and sustained petitions in juvenile delinquency are numerous; you have served two prior prison terms; you were on parole when this crime