Filed 2/10/23 P. v. Powers CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ANGELO WILLIAM POWERS,

Defendant and Appellant.

F084640

(Super. Ct. No. 21CR-03058)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Merced County. Steven K. 

Slocum, Judge.

Mi Kim, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. 

White, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Peña, Acting P. J., Meehan, J. and DeSantos, J.
2.

Defendant Angelo William Powers challenges the trial court’s decision to impose 

a sentence rather than sending him to a drug treatment program. Following our review of 

the record, we conclude the court exercised its discretion appropriately and affirm the 

judgment. 

PROCEDURAL AND FACTUAL SUMMARY

On June 17, 2021, the fire department was called to a dumpster fire near a market 

in Merced. An employee of the market who reviewed surveillance video of the incident 

identified defendant as the person seen setting the fire. After a Merced police officer 

reviewed the surveillance footage, he located defendant three blocks away from the 

market with a bag containing a yellow safety vest, a white headlamp, and several lighters. 

The clothing defendant was wearing and the items in the bag matched what the officer 

observed in the surveillance footage. Defendant was then taken into custody and 

eventually charged with committing arson.

Following a jury trial, defendant was convicted of committing arson involving the 

property of another (Pen. Code,1 § 451, subd. (d)). A certified record of defendant’s prior 

convictions was entered into evidence after the jury was dismissed. Defendant raised no 

objections to the accuracy of those certified records before sentencing. 

At the sentencing hearing, counsel for defendant noted that an alcohol and drug 

assessment had been ordered by the court but was not yet available. Defense counsel 

then stated:

“I would be asking the Court to—and not having received the report, 

[defendant] wants to proceed today with sentencing. 

“I understand [p]robation’s recommendation. I would ask the Court 

to consider a grant of probation—”

The trial court then engaged defense counsel in the following exchange:

1 All further statutory references are to the Penal Code.
3.

“THE COURT: Can I interrupt real quick? 

“If [defendant] is seeking drug treatment, then I need that report, and 

I don’t think we need to go any further. 

“If he agrees that he is not willing to abide by the terms of probation 

and he doesn’t want—if he’s not interested in a drug treatment program, 

then I think we can proceed today.

“[DEFENSE COUNSEL]: I—I understand. And he does wish to 

proceed with sentencing today. 

“THE COURT: Okay.

“[DEFENSE COUNSEL]: I would ask the Court to—since the 

recommendation is for CDCR, I would ask the Court to impose the 

midterm. The midterm is—has been established by the statutory max 

term.”

When sentencing defendant to the aggravated term of three years for arson, the 

trial court first stated he was not eligible for probation, then cited the certified record of 

defendant’s prior convictions. The court noted defendant had been given repeated 

opportunities for drug treatment and did not appear willing or interested in drug 

treatment.

Toward the end of the sentencing hearing, the following exchange occurred: 

“THE DEFENDANT: I never objected to the drug program. 

What—you said you guys were going to send a clinician. So when you 

said that, it kind of—the clinician came out and spoke to me. I told her that 

I wanted a drug treatment program. 

“Then [defense counsel] informed me that we’d have to probably put 

this off for two weeks so she can get the report, which I was opposed to 

waiting for the two weeks because I figured that maybe you would come in 

today and find me eligible for a program today.

“But I was, you know—I did want to go to a drug treatment 

program. So I don’t know where you guys found that I—I’m not interested 

or—I told [defense counsel] that I was interested. I was just opposed to 

waiting, putting this off for another two weeks.

“THE COURT: Okay.
4.

“THE DEFENDANT: So if that has anything—I mean, I was never 

opposed to that.

“THE COURT: Okay.”

The court told defendant he had already entered his judgment and that defendant had the 

right to appeal. A timely notice of appeal was then filed in this case.

DISCUSSION

The only issue raised in defendant’s appeal involves sentencing. Specifically, 

defendant believes the court failed to exercise its sentencing discretion properly because 

the sentence was based on a “mistake of fact and the record suggests the court was

unaware of the scope of its discretion to correct the sentence.”

I. The Trial Court Did Not Abuse Its Discretion When Sentencing Defendant

A. The Trial Court Did Not Proceed with Misinformation

Again, defendant believes the trial court was acting under the mistaken belief he 

was not willing to go to a drug treatment program, rendering his entire sentence invalid. 

This interpretation of what happened during sentencing would require us to ignore the 

entire record of what was actually said by each party at the time and merely focus on 

what was said by defendant. 

Generally, the party attacking a sentence bears the burden of showing the 

sentencing decision was irrational or arbitrary. (People v. Stuart (2007) 156 Cal.App.4th 

165, 179, citing People v. Carmony (2004) 33 Cal.4th 367, 376–377.) Without such a 

showing, “ ‘ “ ‘the trial court is presumed to have acted to achieve legitimate sentencing 

objectives, and its discretionary determination to impose a particular sentence will not be 

set aside on review.’ ” ’ ” (Ibid.) 

Defendant’s main contention is that the trial court failed to properly exercise 

discretion because it was relying on misinformation. On this point, defendant cites the 

case of People v. Gutierrez (2014) 58 Cal.4th 1354, to argue “ ‘[d]efendants are entitled 

to sentencing decisions made in the exercise of the “informed discretion” of the 
5.

sentencing court.’ ” (Id. at p. 1391). The specific fact defendant believes the court was 

“misinformed” about was his desire or willingness to go to a drug treatment program. 

However, defendant has failed to show either that the court was misinformed or that 

knowledge of this fact would have resulted in a different sentence. 

Counsel for defendant informed the trial court that defendant wanted to proceed 

with sentencing despite the fact an alcohol and drug assessment report was not yet 

available. The court responded to this statement by saying a drug treatment program for 

defendant could only be considered after having an opportunity to review the report, 

which was not yet available. Defense counsel stated she understood the court’s position, 

but reiterated defendant wanted to proceed with sentencing rather than wait. Counsel 

then requested defendant be placed on probation, adding that if the court accepted the 

probation department’s recommendation for a prison term, the middle term be selected. 

Defendant, who was present in the courtroom, did not object to any of these statements 

made during the discussion between his counsel and the court. 

Only after the trial court imposed the aggravated term of three years for his 

conviction did defendant raise an objection. At that point, defendant stated, “I never 

objected to the drug program.... I told her that I wanted a drug treatment program.” 

Defendant then admitted he wanted to be sentenced rather than wait for the report 

because he “figured that maybe you would come in today and find me eligible for a 

program today.” In our view, this was an unsuccessful gamble on defendant’s part, as he 

could have waited two weeks when the report was supposed to be available, possibly 

recommending a drug treatment program as an option. Instead, sentencing went forward 

with only a probation report, documentation of his history with drug treatment programs, 

and a certified record of defendant’s past convictions.

We cannot conclude there was abuse by the trial court based on misinformation. 

When imposing its sentence, the court referenced defendant’s prior opportunities to 

participate in drug treatment. Yet the court was willing to wait until the alcohol and drug 
6.

assessment report would be available, which potentially could have altered that 

conclusion. Instead, defendant insisted on proceeding with sentencing knowing a report 

vital to any decision to send him to drug treatment was not available for another 

two weeks. Any error made was not by the court. 

B. The Sentence Imposed Is Supported by the Record

We next address the validity of the sentence that was actually imposed. A trial 

court’s decisions regarding sentencing are reviewed for an abuse of discretion. (People v. 

Sandoval (2007) 41 Cal.4th 825, 847.) 

Defendant argues the trial court failed to consider all the material facts and the 

applicable legal principles he considers essential to “ ‘an informed, intelligent and just 

decision’ ” by not considering all aggravating and mitigating factors related to the crime 

and defendant. Defendant further believes the record is “ ‘ambiguous’ ” on whether 

mitigating factors were considered by the court. (See People v. Panozo (2021) 59 

Cal.App.5th 825.) The specific mitigating factor defendant believes was not properly 

considered was his drug addiction. 

Defendant cites California Rules of Court, rule 4.423(b)(2) for the proposition that 

his drug addiction caused “a mental or physical condition that significantly reduced 

culpability for the crime.” California Rules of Court, rule 4.423 provides factors for 

“[c]ircumstances in mitigation” to be considered during sentencing. Other than his own 

representations that his addiction reduced his culpability for the crime, no actual evidence 

was presented to the trial court during sentencing or before making this link. Thus, there 

was no requirement that the court accept this as a mitigating factor. (See People v. Reid

(1982) 133 Cal.App.3d 354, 371.) 

The record shows, however, that the trial court was not only aware of defendant’s 

drug addiction, but also his prior participation in drug treatment programs. First, defense 

counsel referenced defendant’s issues with substance abuse early in the hearing, arguing 

this fact may have contributed to his commission of the crime. Later, the court 
7.

acknowledged reviewing the probation report, which detailed the various drug treatment 

programs defendant was referred to between 2013 and 2018 and failed to complete. 

After recognizing defendant received opportunities for drug treatment in the past, the 

court then stated, “[h]e doesn’t appear today to be willing to or interested in any type of 

drug treatment.”2 Therefore, when the court found no “legal factors in mitigation” the 

court may have actually been rejecting the idea defendant’s long-term drug addiction and 

repeated failures to address it were mitigating factors. (See People v. Regalado (1980) 

108 Cal.App.3d 531, 539.) It should be noted further, a trial court is generally not 

required to state its reasons for rejecting a mitigating factor. (People v. Reid, supra, 133 

Cal.App.3d at p. 371.) 

The record does not reflect a failure to consider mitigating factors at the time of 

sentencing. Based on our review of the record available to the trial court at sentencing, 

we find no abuse of discretion in this case.

DISPOSITION

The judgment is affirmed.

2

It is entirely possible the court was reacting to defendant’s insistence on being 

sentenced before the alcohol and drug assessment report was available, which he had 

been told was necessary before he could be considered for another program.