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Filed 08/23/24 P. v. Williams CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(San Joaquin)

----

THE PEOPLE,

Plaintiff and Respondent,

v.
WAYNE EDWARD WILLIAMS,

Defendant and Appellant. C099532
(Super. Ct. No. MAN

- CR

- FE

2019

- 13464)

A fter a jury found defendant Wayne Edward Williams guilty of manufacturing methamphetamine , the trial court sentenced him to the upper term of seven years in state prison

. D efendant contends the trial court abused its discretion in selecting the upper
term by rel ying on a remote prior conviction

. Because the prior conviction was for the same crime and was followed by two additional convictions, w e disagree and affirm the judgment

. FACTUAL AND PROCEDURAL BACKGROUND
In 202 0 , a jury found defendant guilty of manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a) ; the 2020 conviction ) . ( People v. Williams2

(Oct. 26, 2022, C093709) [nonpub. opn.].) 1 During the trial, defendant admitted to having five prior convictions involving moral turpitude, three in 1996, one in 2002, and

one in 2016 for evading a peace officer

. T he prosecution sought the upper term for the
2020 conviction based on various factors, including defendant’s prior convictions

. The
trial court agreed with the prosecution and imposed the upper term

. In 2021, d efendant appealed , and a different panel of this court remanded for resentencing pursuant to Senate Bill No. 567 (20 21

- 2022 Reg. Sess.)

. ( People v.
Williams , supra , C093709 .) The panel noted that defendant stipulated to a 1996 conviction for manufacturing a controlled substance ( Health & Saf. Code, § 1 1379.6; the 1996 conviction) , but could not “ conclude with any certainty that the trial court would have imposed the upper term based solely on that aggravating circumstance .” ( People v. Williams, supra , C093709 .) On remand, the trial court again sentenced defendant to the upper term , citing the
1996 conviction for the same offense as an aggravating factor and no “mitigating factors that would cause [it] to say that the aggravating factor does not outweigh the mitigating
factors

. ” Defendant timely appealed. On appeal, defendant admits that he was sentenced to eight years in state prison
for the 1996 conviction and that he has two other prior convictions : (1) a 2002
conviction for possessing components to manufacture methamphetamine (Health & Saf. Code, § 11383, subd. (c) ; the 2002 conviction) and (2) a 2016 conviction for evading a peace officer (Veh. Code, § 2800.2; the 2016 conviction). ( Hernandez v. City of Pomona (2009) 46 Cal. 4th 501, 506 , fn. 1 [factual statements in a brief may be treated as an admission or stipulation when adverse to the party making it] .)

1 On our own motion, we take judicial notice of the record in defendant’s previous appeal. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)3 DISCUSSION
D efendant contends the trial court abused its discretion in imposing the upper

term. Specifically, h e contends that the trial court’s use of the 1996 conviction as the
basis of an aggravating factor wa s insufficient for an upper term because of the
conviction’s age

. We disagree

. Penal Code section 1170 , subdivision (b)(3) allows a defendant’s prior convictions
to be used as the basis for aggravating factor s to impose an upper term. ( Pen. Code, § 1170, subd. (b)(1)

- (3).) As our Supreme Court has recognized, consideration of prior convictions may establish one or more recidivism

- based factors in aggravat ion . ( People v. Capistrano (2014) 59 Cal.4th 830, 884 .) And a trial court’s selection of a term under
Penal Code section 1170 is reviewed for abuse of discretion. ( People v. Salazar (2023)
15 Cal.5 t h 416, 428 , f

n. 8. ) There is no abuse of discretion unless the decision “ is so irrational or arbitrary that no reasonable person could agree with it. ” ( People v. Carmony (2004) 33 Cal.4th 367, 377.) Here, defendant admitted the 1996 conviction for manufacturing a controlled
substance and does not question the court’s authority t o consider the nature of a prior
conviction for purposes of sentencing. 2 The fact that defendant was convicted of the
same crime in 2020 , albeit over 20 year s later, supports a factor in aggravation based on
recidivism. (See Cal. Rules of Court, rule 4.421(b), (c).) Moreover, w hile the 1996 conviction may have been relatively remote in time, it wa s bridged, as defendant acknowledges, by a prison sentence, the 2002 conviction , and the 2016 conviction

. Based on defendant’s lack of a legally blameless life in the years since the 1996 conviction ( see People v. Harris (1998) 60 Cal.App.4th 727, 739 [staleness of offense

2 As a result, the issue on review in People v. Wiley (2023) 97 Cal.App. 5th 676, 685, review granted Mar. 12, 2024 , S283326 , is not implicated here .)4

relevant only if defendant has led a blameless life in the interim] ), a reasonable sentencing court could find the remote nature of the 1996 conviction significantly diluted.
Defendant also appears to contend that the court should have considered the unsophisticated nature and small amount of contraband involved in the 2020 conviction as mitigating factors

. T his contention fails for two reasons

. First, defendant provides no supporting record citations. ( Le Mere v. Los Angeles Unified School Dist. (2019)
35 Cal.App. 5th 237, 248 [claim not supported by record cites is forfeited].) And second ,

“ sentencing courts have wide discretion in weighing aggravating and mitigating factors

. ” ( People v. Avalos (1996) 47 Cal.App. 4th 1569, 1582 .) T he record indicates that the trial court considered possible mitigating factors and concluded that they were outwe ighed by the repeat conviction for manufacturing controlled substances. D efendant makes no clear showing that this weighing of factors was arbitrary or irrational

. For these reasons, t he trial court acted within its discretion in imposing the upper

term.
DISPOSITION The judgment is affirmed.

/s/ MESIWALA , J.

We concur:

/s/ EARL, P. J.

/s/ MAURO , J.