State v. Zazueta

2015 UT App 143
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Plaintiff and Appellee,
v.
LAINA ELAINE Z AZUETA,
Defendant and Appellant.
Per Curiam Decision
No. 20140450-CA
Filed June 4, 2015
Third District Court, Salt Lake Department
The Honorable James T. Blanch
Nos. 131911650, 131904240
John B. Plimpton and Lisa J. Remal, Attorneys
for Appellant
Sean D. Reyes and Brett J. DelPorto, Attorneys
for Appellee
Before JUDGES GREGORY K. O RME, J. F REDERIC VOROS JR ., and
JOHN A. PEARCE.
PER CURIAM:
¶1 	In a consolidated appeal, Laina Elaine Zazueta appeals
her sentence on convictions for robbery and burglary, both
second degree felonies, and the revocation of probation and
imposition 	of 	previously 	suspended 	prison 	sentences 	for
attempted theft and possession of a firearm by a restricted
person, both third degree felonies. She claims that the district
court “failed to give adequate weight to her struggles with
anger, depression, and drug abuse and her sincere commitment
to overcome them.” We affirm.
¶2 	In district court case number 131904240, Zazueta pleaded
guilty in July 2013 to reduced charges of attempted theft and

State v. Zazueta
20140450-CA 	2 	2015 UT App 143
possession of a firearm by a restricted person and was sentenced
to two concurrent prison terms of zero-to-five years. The district
court then suspended the prison terms, placing her on thirty-six
months of probation supervised by Adult Probation and Parole
(AP&P). She failed to report to AP&P to initiate probation and
was a fugitive from July 2013 until her December 2013 arrest on
the 	charges 	in 	case 	number 	131911650. 	AP&P 	initiated
proceedings to revoke probation, which were based, in part,
upon an allegation that she committed the offenses charged in
case 	number 	131911650. 	The 	district 	court 	first 	sentenced
Zazueta on case number 131911650 and then it considered the
order to show cause on the probation violation.
¶3 	In case number 131911650, Zazueta entered guilty pleas to
robbery and burglary, both second degree felonies. The district
court reviewed a Presentence Investigation Report (PSI) that
recommended prison terms, noting that Zazueta scored in the
high risk category and presented a serious threat of violent
behavior. The PSI stated that her attitude was not conducive to
supervision in a less restrictive setting than incarceration and
that 	her 	violent 	behavior 	presented 	a 	safety 	risk 	to 	the
community. The PSI noted that Zazueta was given opportunities
for probation supervision with AP&P or other agencies and
failed 	to 	initiate 	probation 	supervision, 	absconded 	from
supervision, and failed to comply with court orders. The district
court received Zazueta’s clarifications to the PSI, which included
that she was affected by the 2011 death of her brother.
¶4 	Zazueta 	requested 	another 	probation 	opportunity,
acknowledging that she should participate in substance abuse
treatment. Defense counsel noted that Zazueta was exposed to
methamphetamine at a young age but that now she had family
support from her mother and from Zazueta’s husband, who was
not involved in criminal activities or drug use. Zazueta stated
that, if given another probation opportunity, she intended to
complete 	substance 	abuse 	treatment, 	obtain 	her 	GED, 	find

State v. Zazueta
20140450-CA 	3 	2015 UT App 143
employment, address her anger issues, and cooperate with any
other requirements of probation. Zazueta addressed the court
about her young age and desire to be with her child. The State
opposed 	probation, 	citing 	her 	lack 	of 	cooperation 	with
probation, lack of respect for court orders, escalating criminal
conduct, 	and 	already 	extensive 	criminal 	record. 	The 	State
requested concurrent prison sentences on these two charges, to
run 	consecutively 	to 	any 	sentence 	following 	the 	probation
revocation.
¶5 	The district court sentenced Zazueta to concurrent prison
sentences of one-to-fifteen years on each count in case number
131911650. The court acknowledged her young age, but noted
the seriousness of the crimes and her “disturbing criminal record
over a very short period.” The court stated that the need to
impose 	the 	punishment 	required 	for 	the 	offenses 	Zazueta
committed could not be satisfied by putting her on probation.
¶6 	Zazueta waived an evidentiary hearing and admitted four
of the allegations supporting the order to show cause in case
number 131904240. The district court reviewed the PSI for that
case, 	in 	which 	AP&P 	recommended 	that 	the 	court 	revoke
probation and impose the original sentence of concurrent terms
of 	zero-to-five 	years. 	The 	State 	concurred 	in 	that
recommendation. Zazueta asked that the case be closed. The
district court imposed the original sentences of two zero-to-five
year 	terms, 	to 	run 	concurrently 	with 	each 	other 	and
consecutively 	to 	the prison 	terms 	imposed 	in 	case 	number
131911650. 	The 	court 	stated 	that 	“given 	the 	gravity 	of 	the
offenses, 	the 	number 	of 	victims 	involved, 	and 	the 	history,
character, and rehabilitative needs of Ms. Zazueta, consecutive
sentences are appropriate” as between the two cases.
¶7 	An appellate court “will overturn a sentencing decision
only if it is clear that the actions of the [sentencing] judge were
so inherently unfair as to constitute an abuse of discretion.” State
v. Killpack, 2008 UT 49, ¶ 18, 191 P.3d 17 (citations and internal

State v. Zazueta
20140450-CA 	4 	2015 UT App 143
quotation marks omitted)(emphasis in original). A district court
has 	broad 	discretion 	in 	deciding 	whether 	or 	not 	to 	order
probation, because the “granting or withholding of probation
involves considering intangibles of character, personality and
attitude.” State v. Rhodes, 818 P.2d 1048, 1049 (Utah Ct. App.
1991) (citations and internal quotation marks omitted). “An
appellate court reviews the district court’s decision to grant,
modify or revoke probation for abuse of discretion.” State v.
Brooks, 2012 UT App 34, ¶ 8, 271 P.3d 831.
¶8 	Zazueta 	contends 	that 	the 	district 	court 	abused 	its
discretion in imposing prison terms in the consolidated cases
because 	the 	court 	“failed 	to 	give 	adequate 	weight 	to 	[her]
struggles 	with 	anger, 	depression, 	and 	drug 	abuse 	and 	her
sincere commitment to overcome them.” She also argues that in
the probation revocation case (number 131904240) the district
court “failed to realize that there was no benefit in sentencing
[her] to prison time in addition to her sentence” in case number
131911650. The sentences imposed were within the statutory
range, 	and 	the 	record 	demonstrates 	that 	the 	district 	court
considered and weighed the legally relevant factors. We cannot
conclude that the district court’s weighing of the relevant factors
constituted an abuse of discretion. See Killpack, 2008 UT 49, ¶ 59
(“[S]everal mitigating circumstances claimed by a defendant
may be outweighed by a few egregious aggravating factors.”).
Furthermore, the district court considered Zazueta’s argument
that there was no benefit to imposing the original sentence in
case number 131904240. The district court disagreed, stating that
the imposition of consecutive sentences allowed latitude to the
Board of Pardons in determining the time to be served in order
to address Zazueta’s rehabilitative needs. We do not disturb that
determination.
¶9 	Accordingly, we affirm.