P. v Zaragoza

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Filed 1/24/07 P. v. Zaragoza CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JAIME GODAY ZARAGOZA,
Defendant and Appellant.
E039301
(Super.Ct.No. SWF005784)
OPINION
APPEAL from the Superior Court of Riverside County. Martin Hairabedian, Jr.,
Judge. (Retired judge of the Orange Sup. Ct. assigned by the Chief Justice pursuant to
art. VI, § 6 of the Cal. Const.) Affirmed.
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and
Appellant
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-

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Ladendorf, Supervising Deputy Attorney General, and Erika Hiramatsu, Deputy Attorney
General, for Plaintiff and Respondent.
Defendant Jaime Goday Zaragoza (defendant) alleges the trial court abused its
discretion and violated his constitutional right to due process by denying him probation
and sentencing him to the aggravated term for his felony conviction. Finding neither
abuse of discretion nor constitutional error, we will affirm.
FACTUAL AND PROCEDURAL HISTORY
On October 1, 2003, defendant was arrested for driving under the influence of
alcohol and methamphetamine. While out on bail and awaiting trial on charges stemming
from that arrest, he was arrested again on September 26, 2004, under similar
circumstances.1 This time defendant was not only driving under the influence of alcohol;
he also had an open can of beer, 21 grams of methamphetamine, marijuana, and drug
paraphernalia including a pipe and an electronic scale in his car. In addition, he was
driving without a valid license and had $644 in cash in his wallet. At the time of the
second arrest defendant told police that the drugs in his car were not his; later he told
them that he sold methamphetamine to support his own addiction. On January 7, 2004,
defendant failed to appear for a court hearing related to the first arrest; on November 10,
2004, he failed to appear at a hearing related to the second arrest.
1 Defendant’s opening brief erroneously gives November 26, 2004, as the date of
the second arrest, but this appears to be a mistake.

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In September 2005, at trial on all the charges from both offenses, defendant
admitted under oath that he had lied to police when he said that the drugs in the car were
not his. At the same time, defendant repeatedly testified that he did not sell drugs; all the
methamphetamine in his possession was for his personal use. He carried the scale only to
ensure that when he purchased his own drugs he would not be cheated.
On October 3, 2005, a jury convicted defendant of five felonies and four
misdemeanors related to the two arrests. The convictions included two counts of
possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); felonies);
transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); a felony);
possession of methamphetamine for sale (Health & Saf. Code, § 11378; a felony); two
counts of failure to appear (Pen. Code, §§ 1320.5 & 853.7; one felony and one
misdemeanor); driving while under the influence of alcohol and a drug (Veh. Code,
§ 23152, subd. (a); a misdemeanor); being under the influence of a controlled substance
not prescribed by a licensed practitioner (Health & Saf. Code, § 11550, subd. (a); a
misdemeanor); and possession of marijuana. (Health & Saf. Code, § 11357, subd. (b); a
misdemeanor.) The jury also found true special allegations that defendant committed two
of his most recent offenses while out on bail for two of the earlier ones. (Pen. Code, §
12022.1.) After trial, the court referred the matter to the probation department for a
presentencing report.

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The report identified factors relating to defendant’s eligibility for probation under
California Rules of Court,2 rules 4.413 and 4.414 as well as sentencing factors to be
considered under rules 4.421 and 4.423. There were no provisions under rule 4.413(a)
(eligibility for probation) limiting or prohibiting probation for defendant. Factors under
rule 4.414(b) (criteria related to the defendant) which the probation officer considered
favorable to a grant of probation included that defendant was not presently on parole, that
he was willing and able to comply with the terms of probation, and that he was
remorseful. (Rule 4.414(b)(3), (4) & (7).) Unfavorable factors were that defendant’s
record revealed a pattern of increasingly serious criminal conduct and that his prior
performance on probation or parole had not been satisfactory. (Rule 4.414(b)(1) & (2).)
Sentencing factors under rule 4.421 included that the crime involved a large
quantity of contraband, that defendant’s prior convictions as an adult were numerous and
of increasing seriousness, and that his prior performance on probation or parole had been
unsatisfactory. (Rule 4.421 (a)(10), (b)(2) & (5).) The report identified no mitigating
circumstances under rule 4.423 and concluded that if defendant were to be sentenced to
state prison, “the upper term of imprisonment appears justified.” Because defendant had
lied at trial the probation officer opined that “one could only hope that he is sincere about
wanting help with his serious drug addiction.” The seriousness of defendant’s offense,
the fact that he committed additional crimes while he was out on bail, the large quantity
2 All further rule references will be to the California Rules of Court unless
otherwise indicated. [footnote continued on next page]

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of drugs involved – coupled with his two prior violations of probation – warranted
serious consideration of a state prison commitment. However, since defendant had
ultimately completed his two prior grants of probation, it also appeared to the probation
officer that defendant “should be granted one final opportunity on formal probation, since
this is his first felony matter.”
As the sentencing hearing opened on November 4, 2005, the court remarked,
“And, just for the record, I’ll tell you that the court has read and considered the Probation
Report, so you may proceed.” Defense counsel then submitted on what he characterized
as the probation officer’s recommendation for probation and discussed an off-the-record
chambers conference in which the court had apparently indicated it was not inclined to
grant probation. Counsel argued that given defendant’s young age (mid-30’s), his
“insignificant” criminal record, the fact that he had never been to state prison or
convicted of a felony before, and his drug addiction, probation was the appropriate
disposition. In the alternative, counsel urged the court to refer defendant to the California
Rehabilitation Center (CRC) for treatment pursuant to the provisions of Welfare and
Institutions Code section 3051. If the court was not inclined either to grant probation or
to refer defendant to CRC, counsel requested that he be sentenced to the low prison term.
Notwithstanding the probation officer’s conclusion that there were no mitigating factors
in the case, counsel asserted that there were in fact two: defendant was suffering from a
[footnote continued from previous page]

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physical addiction to drugs, and he had admitted his wrongdoing at an early stage of the
proceedings. “It’s just the sales charge that [defendant] tried to skirt around,
unfortunately, with his testimony.”
The prosecutor argued for an upper-term sentence. Under rule 4.423, defendant’s
drug addiction should be considered an aggravating, not a mitigating, factor. In addition,
defendant had wasted past opportunities to address his drug problem; while out on bail he
had picked up a drug-selling charge; he had committed perjury at trial; his criminal
actions were increasing in severity; and he had been arrested, most recently, with a large
amount of methamphetamine and a scale in his possession. Defendant should not be
“rewarded” by being sent to CRC. He had already had a year in county jail to get over
his addiction and it was now time to punish him with a prison sentence.
After argument, the court commented, “Very well. Thank you. Well, you both
gave good arguments. It’s difficult to disagree, but I feel that the defendant did the things
the prosecutor mentioned and, of course, the defense, so the Court finds that the
maximum five years would be imposed.” After sentencing defendant to the upper term
of four years on the principal offense for the 2004 sales conviction (count 6), plus one
consecutive year for the 2003 sales offense (count 2), and a variety of stayed or
concurrent terms on six other charges, the court dismissed a two-year enhancement
alleged with count 9, and made some additional comments. “I am taking into
consideration the various things that have happened. [¶] You appear to be -- Mr.
Zaragoza, you appear to be ignoring the law. You do a little thing first, and it gets a little

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worse, then you’re apprehended out on bail, and you did another thing a little worse.
And it continues to get worse, and I want that trend reversed. I want you to stay out of
prison or jail or anywhere constantly. That’s why I’m imposing the sentence.”
After further discussion regarding defendant’s custody credits and the status of his
driver’s license, the prosecutor again addressed the Court: “And, your Honor, if I may
just state for the record, in order to justify giving [the] upper term, the Court would need
to find circumstances in aggravation. I would request that the Court rely on Rule 4.421
Subdivision A Subsection 10; the crime involved a large quantity of contraband; 4.421
Subdivision 1 Subsection 2, the defendant’s convictions are numerous and increasing in
seriousness; and, Rule 4.421 Subdivision B Subsection 5, his prior performance on
probation is unsatisfactory, and the fact that the Court was inclined to suspend the
sentence for the out-on-bail allegation in order to give an enhanced punishment under
Count 6, the principal term for the 11379.” The court replied: “Very well, the Court so
finds as stated by the district attorney.” Lastly, the court told defendant, “you brought it
on yourself, and you have to pay for it.”
DISCUSSION
A. Standard of Review and Probation Decisions
We review a trial court’s grant or denial of probation for abuse of discretion.
“Probation is generally reserved for convicted criminals whose conditional release into
society poses minimal risk to public safety and promotes rehabilitation. [Citations.] The
sentencing court has broad discretion to determine whether an eligible defendant is

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suitable for probation . . . . [Citations.]” (People v. Carbajol (1995) 10 Cal.4th 1114,
1120 (Carbajol).) The decision will not be disturbed on appeal “except on a showing that
the court exercised its discretion in an arbitrary, capricious or patently absurd manner that
resulted in a manifest miscarriage of justice.” (People v. Jordan (1986) 42 Cal.3d 308,
316.) Although courts are required to consider the recommendations in the probation
report and often follow those recommendations, they are not bound to do so. (People v.
Welch (1993) 5 Cal.4th 228, 234.) However, the imposition of a prison term is a
sentencing choice requiring that the trial court understand the nature of its discretionary
power and state the reasons for its choice pursuant to Penal Code section 1170,
subdivision (c). (People v. Leung (1992) 5 Cal.App.4th 482, 506.) “The court shall state
the reasons for its sentence choice on the record at the time of sentencing.” (Pen. Code, §
1170, subd. (c).)
A trial court’s discretion in granting or denying probation is limited by the criteria
set forth in rule 4.414 (formerly rule 414). (People v. Golliver (1990) 219 Cal.App.3d
1612, 1617.) These criteria include, among others: the nature, seriousness, and
circumstances of the crime (rule 4.414(a)(1)); the defendant’s prior record of criminal
conduct, including the recency and frequency of prior crimes (rule 4.414(b)(1)); the
defendant’s past performance on probation or parole (rule 4.414(b)(2)); the defendant’s
willingness and ability to comply with the terms of probation (rule 4.414(b)(4)); and
whether the defendant is remorseful (rule 4.414(b)(7).)

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Although the trial court’s statements explaining its choice of sentence were
minimal in this case, there is adequate evidence in the record that it used the criteria
outlined in rule 4.414 in reaching the decision not to grant probation.
Firstly, the court specifically drew attention to the fact that it had read and
considered the probation officer’s report, which contained facts against, as well as for, a
grant of probation. On the one hand, defendant’s record indicated a pattern of
increasingly serious criminal conduct and his prior performance on probation or parole
had not been satisfactory. (Rule 4.414 (b)(1) & (2).) On the other hand, defendant was
not presently on parole, he was willing and able to comply with the terms of probation,
and he was remorseful. (Rule 4.414 (b)(2), (3), (4) & (7).) However, defendant’s
appearance of remorse and willingness to work on his drug addiction – which the
probation officer could “only hope” was sincere – were undermined by his demonstrated
willingness to lie under oath, a fact that his own counsel had admitted and that the court
indicated it believed.
Secondly, the court personally emphasized defendant’s prior record and his poor
performance on parole in its strong statement: “Mr. Zaragoza, you appear to be ignoring
the law. You do a little thing first, and it gets a little worse, then you’re apprehended out
on bail, and you did another thing a little worse. And it continues to get worse, and I
want that trend reversed . . . . That’s why I’m imposing the sentence.”
Thirdly, the nature and seriousness of defendant’s offenses, and the recency and
frequency of his crimes, demonstrated his unsuitability for parole. (Rule 4.414 (a)(1) &

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(b)(1).) The very fact that defendant was arrested twice within one year for driving under
the influence of drugs and alcohol demonstrated his willingness to compromise public
safety. He was someone who, as the court pointed out, had engaged in a continuing
pattern of disregard for the law by committing consecutively worse offenses; he was not a
convicted criminal who could be conditionally released into society with safety.
(Carbajol, supra, 10 Cal.4th at p. 1120.)
Finally, despite the probation report’s conclusion that defendant was “remorseful,”
we see his chronic dishonesty as evidence to the contrary. Defendant had not been
“totally cooperative and honest with both the police and the court” and he did not merely
lie about his “intent” or try to “skirt around” the sales charge, as defense counsel argued.
He openly lied to the police at the time of his arrest by first telling them the drugs in his
car were not his, and he lied directly to the court under oath at trial – not just once but at
least four separate times – when he repeatedly denied selling drugs. Telling lies about
one’s crimes and denying the truth of the charges are not the actions of a remorseful
person. The court did not abuse its discretion in so concluding.
B. Standard of Review and Term Selection
As with the decision to grant or deny probation, a trial court’s discretion to weigh
aggravating and mitigating circumstances in selecting a prison sentence is broad, and an
appellate court does not substitute its judgment on such matters. (People v. Avalos
(1996) 47 Cal.App.4th 1569, 1582; People v. Calderon (1993) 20 Cal.App.4th 82, 87.)
In explaining its choice, the court is not required to discuss each factor independently.

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(People v. Evans (1983) 141 Cal.App.3d 1019, 1022.) Moreover, “the finding of even
one factor in aggravation is sufficient to justify the upper term.” (People v. Steele (2000)
83 Cal.App.4th 212, 226, citing People v. Cruz (1995) 38 Cal.App.4th 427, 233-234.)
“‘A trial court may minimize or even entirely disregard mitigating factors without stating
its reasons.’” (People v. Zamora (1991) 230 Cal.App.3d 1627, 1637 (Zamora), quoting
People v. Salazar (1983) 144 Cal.App.3d 799, 813.) Unless the record affirmatively
reflects otherwise, the court will be deemed to have considered the relevant criteria
enumerated in the sentencing rules. (Rule 4.409; Zamora, supra, at p. 1637.) Objectives
of sentencing include, among others: protecting society, punishing the defendant, and
encouraging the defendant to lead a law abiding life in the future. (Rule 4.410(a)(1), (2)
& 3.)
Defendant argues that the trial court should have based his sentence on the offense
of which he was convicted and the sentencing factors mandated in the California Rules of
Court. It is obvious to us that the court did exactly that. It considered the relevant
criteria in the sentencing rules in selecting an appropriate term for his nine convictions,
explicitly applying them so as to protect society, punish defendant, and encourage him to
lead a law abiding life in the future.
As to protecting society, the prosecution here was correct when it reminded the
court of the holding in the 1987 California case People v. Reyes (1987) 195 Cal.App.3d
957 (Reyes). Reyes held that chronic drug addiction combined with a failure to deal with
the problem is an aggravating, not a mitigating, sentencing circumstance under rule

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4.423, largely because the addiction endangers society. “For example, the felony drunk
driver who is suffering from an uncontrolled alcoholism should be sentenced to a longer
term, not a shorter one, in order to prevent him from driving under the influence again.”
(Reyes, supra, at pp 962-963.) Similar reasoning applies to the drug addict “who shows
little incentive or ability to deal with his drug abuse problem.” (Ibid.) Defendant was
severely addicted to drugs and alcohol and had done little to address his problem. As
evidenced by his second arrest, he continued to drive and endanger the public, becoming
steadily involved in consecutively worse behavior. In the absence of affirmative
evidence to the contrary, and even though it did not discuss this factor independently, we
assume the court took it into account when it decided upon defendant’s sentence. (Rule
4.409; People v. Evans, supra, 141 Cal.App.3d at p. 1022.)
Nor did the court abuse its discretion by adopting the prosecutor’s comprehensive
and well-organized statement of aggravating circumstances under rule 4.421. All of the
adopted statements were true. Defendant’s crime did involve a large quantity of
contraband: 22 grams of methamphetamine (rule 4.421(a)(10)); his convictions were
numerous (nine) and had increased in seriousness: from simple possession to sales (rule
4.421(b)(2)); his prior performance on probation was unsatisfactory in that he committed
more crimes while on release from custody and twice failed to appear in court at
appointed times. (Rule 4.421(b)(4) & (5).)
That the court also felt defendant deserved punishment and needed encouragement
to be law abiding in the future, proper goals of the sentencing statutes, rule 4.410(a)(1),

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(2) & (3), were clear: “You appear . . . to be ignoring the law. . . . [A]nd it continues to
get worse, and I want that trend reversed. I want you to stay out of prison or jail or
anywhere . . . . That’s why I’m imposing the sentence.” “[Y]ou brought it on yourself,
and you have to pay for it.”
C. The Blakely Issue
Defendant’s final argument is that his aggravated term is unconstitutional. We
disagree.
Invoking the United States Supreme Court’s decision in Blakely v. Washington
(2004) 542 U.S. 296 (Blakely), defendant insists that his sentence violates due process
because the factors the court used to select the upper term were not found by a jury nor
proven beyond a reasonable doubt. Respondent replies that this court is bound to follow
the California Supreme Court’s decision last year in People v. Black (2005) 35 Cal.4th
1238 (Black).
Respondent is correct about this court’s duty to follow Black. (Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Even were we not so bound, however,
we would not find defendant’s sentence a violation of Blakely. This is because at least
one of the factors the court used to select the upper term – and it only needed one (People
v. Steele, supra, 83 Cal.App.4th at p. 226) – was contained in the special allegation found
true by the jury. Defendant committed his most recent crimes while out on bail for older
ones. The court’s choice of the upper term did not violate his right to due process or trial
by jury.

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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ MILLER
J.
We concur:
/s/ HOLLENHORST
Acting P. J.
/s/ McKINSTER
J.

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