THE PEOPLE v. CHRISTINE MARIE TELLES (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

A jury convicted defendant and appellant Christine Telles of first degree residential burglary in violation of Penal Code section 459.   She was sentenced to state prison for the upper term of six years.   The only issue on appeal is defendant's contention the trial court abused its discretion in imposing the upper term sentence and violated defendant's right to due process of law by punishing her for exercising her right to proceed to trial.   We affirm.

FACTS

Defendant served as a caretaker in 2008 and 2009 for 87–year–old Leff Clouche, who lived in apartment A at 903 Sartori Avenue in Torrance.   Clouche was a recovering alcoholic, who had been sober for 26 years, through the assistance of the Torrance Lomita Club. Defendant lived with Clouche until she either quit or was fired shortly before Thanksgiving 2009.   She moved into apartment C in the same building where Clouche resided.

Clouche went to the Torrance Lomita Club on Thanksgiving Day 2009.   Neighbors contacted the police after defendant was observed entering Clouche's apartment multiple times through a window that day and then carrying bags of items to her apartment.   Officers took defendant into custody as she exited her apartment.   Items taken from Clouche's apartment were recovered in defendant's apartment.   Included in the property were letters, some of which contained Clouche's social security number.   Clouche had not given defendant permission to enter his apartment or take his property.

DISCUSSION

Before trial, the prosecutor offered defendant a plea agreement calling for a two-year prison sentence.   Defendant rejected the offer, proceeded to trial representing herself, and was sentenced to the upper term of six years in state prison after conviction.   Defendant argues the trial court abused its discretion by imposing the upper term sentence, as it was not warranted by the facts and punished defendant for exercising her right to a jury trial.

Background

Prior to trial, after an extended discussion of defendant's criminal history, the prosecution offer to settle the case was two years in state prison.   Defendant rejected the offer.

At the probation and sentence hearing, the prosecutor requested a six-year prison sentence for defendant, citing her three California felony convictions for theft or fraud, a federal bank fraud conviction, three “A.K.A's” and social security numbers, and the particular vulnerability of the elderly victim.   The probation report revealed 1991 convictions for hit and run with injury or death, felony driving under the influence, passing nonsufficient funds checks, and grand theft.   The report showed 1992 convictions for making false financial statements and grand theft.   In 1994, defendant was convicted of grand theft and in 2006, of driving on a suspended license.   Defendant suffered convictions in federal court in 2000 for bank fraud, false social security numbers, false statements, false statements on a loan application, and using a false social security number.

Defendant argued she had served enough time on this case.   She had completed her federal probation without violation.   Since being released, she started a prison ministry.   She is a good asset to the community who helps the needy and poor.   She has been getting ready for the “mini bar” and has turned her life around.   Defendant said she had not even received a traffic ticket in the seven years since her release from custody.   Defendant claimed she was “exonerated” on her federal case, although she had no proof to support that assertion.¹  Defendant told the trial court she has breast cancer and “right arm lipemia.”

Defendant complained that she did not have enough time to consider the two-year offer before trial.   She was not afforded enough time to defend herself.

The trial court denied probation, as defendant was not statutorily eligible.   She was sentenced to the upper term of six years in prison, taking into consideration the victim was over 80 years old, feeble, and completely vulnerable.   The trial court cited to defendant's “several” prior felony convictions for fraud and theft.   The crime was carried out with planning.   The trial court found no circumstances in mitigation of punishment.

Analysis

Initially, we hold defendant has forfeited her contention that she was being punished for exercising her right to a jury trial, as she failed to object on that ground in the trial court.  (People v. Scott (1994) 9 Cal.4th 331, 352–353;  People v. Velasquez (2007) 152 Cal.App.4th 1503, 1511–1512.)   In any event, all of defendant's contentions fail on the merits.

“When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.”  (Pen.Code, § 1170, subd. (b).)  A statement of reasons is required for the sentence choice, in order to facilitate appellate review and reasoned decisions in the trial court.  (People v. Sandoval (2007) 41 Cal.4th 825, 847, fn. 9.) On appeal, we review a sentence under the deferential abuse of discretion standard.  (Id. at p. 847;  People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 976–977.)   The presence of one aggravating factor is sufficient to support an upper term sentence.  (People v. Black (2007) 41 Cal.4th 799, 813;  People v. Osband (1996) 13 Cal.4th 622, 728.)

We need not look beyond the trial court's reliance on defendant's extensive criminal record to conclude the upper term sentence was not an abuse of discretion.  (Cal. Rules of Court, rule 4.421(b)(2).)   Defendant's recidivism, in and of itself, supports the upper term sentence.   In addition, the aged and feeble victim was particularly vulnerable to a crime of identity theft, which appears to be one of defendant's motives in this case, in that she stole documents containing Clouche's social security number.  (Cal. Rules of Court, rule 4.421(a)(3).)

The fact that the probation report recommended a middle term sentence did not preclude the trial court from identifying factors in aggravation of punishment and imposing the upper term.   A trial court is “not required to adopt the report's favorable recommendation.  (People v. Hernandez [ (1980) ] 111 Cal.App.3d [888,] 898.)   Such a recommendation is advisory only, provided in order to aid the sentencing court in determining an appropriate disposition, and may be rejected in its entirety.  (People v. Warner (1978) 20 Cal.3d 678, 683;  People v. Server (1981) 125 Cal.App.3d 721, 728.)”  (People v. Delson (1984) 161 Cal.App.3d 56, 63.)   As the probation officer identified two factors in aggravation of punishment and no mitigating factors, the recommendation of a middle term sentence in this case was not persuasive.

Defendant's remaining contention is that she was punished for exercising her right to a jury trial.  “The People concede that the refusal of an accused to negotiate a plea with the prosecution must not influence the sentence imposed by the court after trial.”  (In re Lewallen (1979) 23 Cal.3d 274, 279.)   “The mere fact, if it be a fact, that following trial defendant received a more severe sentence than he was offered during plea negotiations does not in itself support the inference that he was penalized for exercising his constitutional rights.”  (People v. Szeto (1981) 29 Cal.3d 20, 35.)   There is nothing in the record to suggest defendant was punished for refusing to plead guilty.

DISPOSITION

The judgment is affirmed.

KRIEGLER, J.

We concur:

MOSK, Acting P. J.

KUMAR, J.*

FOOTNOTES

FN1. The prosecutor responded that she had researched defendant's claim and was unable to substantiate it.   The federal probation officer had no knowledge of defendant being exonerated..  FN1. The prosecutor responded that she had researched defendant's claim and was unable to substantiate it.   The federal probation officer had no knowledge of defendant being exonerated.