People v. Wiedemann CA1/5

Filed 2/28/13 P. v. Wiedemann CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A135695 v. JOSHUA GREG WIEDEMANN, (Lake County Super. Ct. No. CR928920) Defendant and Appellant.

Defendant Joshua Greg Wiedemann (appellant) pled no contest to one count of burglary and the trial court sentenced him to a three-year jail sentence. Appellant contends the court abused its discretion in imposing the upper term. We affirm. PROCEDURAL BACKGROUND A March 2012 amended complaint charged appellant with burglary (Pen. Code, § 459) (counts 1 & 5), receiving stolen property (id., § 496, subd. (a)) (counts 2, 3 & 4), misdemeanor possession of burglary tools (id., § 466) (count 6), and misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364.1) (count 7). Pursuant to a plea agreement, appellant pled no contest to the burglary charge in count 5. The agreement specified that appellant would receive a jail sentence between 16 months and three years and the remaining counts would be dismissed pursuant to a Harvey waiver, allowing the sentencing court to consider the facts of the dismissed counts. (See People v. Harvey (1979) 25 Cal.3d 754.)

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The trial court sentenced appellant to jail for the three-year upper term with credit for 132 days time served. This appeal followed. FACTUAL BACKGROUND According to the probation report, on February 18, 2012, a Lake County police officer arrested appellant pursuant to two active warrants from Tehama County. Appellant had in his possession a bag full of stolen property, a backpack containing numerous burglary tools, marijuana, and drug paraphernalia associated with methamphetamine use. He also had in his possession another man’s driver’s license, which had been stolen during a February 14 car burglary, and a car registration and other documents stolen during another prior car burglary. On February 19, 2012, a senior center reported that property had been stolen from a Red Cross emergency response vehicle. The items found in appellant’s bag were identified as property stolen from the vehicle. DISCUSSION Appellant contends the trial court abused its discretion in imposing a three-year upper term sentence. We disagree. I. Standard of Review A trial court’s exercise of its discretion in selecting a sentence under Penal Code section 11701 is subject to review for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) “[A] trial court will abuse its discretion . . . if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision. [Citations.]” (Ibid.) “Sentencing courts have wide discretion in weighing aggravating and mitigating factors. [Citation.] Indeed, a trial court may ‘minimize or even entirely disregard mitigating factors without stating its reasons.’ [Citation.]” (People v. Lai (2006) 138 Cal.App.4th 1227, 1258 (Lai).) “ ‘The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is