Filed 10/6/15 P. v. G onzalez CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,
Plaintiff and Respondent,

v.

ERIC GONZ ALEZ, JR.,
Defendant and Appellant. B260440
(Los Angeles County Super. Ct. No . MA055652)

APPEAL from a n order of the Superior Court of Los Angeles County. Daviann L. Mitchell, Judge

. Affirmed

.

Jared G. Coleman, under appointm ent by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, C hief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Stephanie C. Brenan and Toni R. Johns Estaville, Deputy Attorne ys General, for Plaintiff and Respondent.

__________________________2

Eric Gonzalez, Jr. (defendant) appeals from the order sentencing him to three years in county jail following revocation of his probation. His sole contention is that the
trial court err ed in basing its sentencing choice on defendant ’ s poor performance on probation, which was a circumstance that did not exist at the time probation was granted.
We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A family argument led to defendant ’ s arrest in M arch 2012 . In May 2012, he pled no contest to felony resisting arrest (Pen. Code, § 69). According to a probation report dated May 10, 2012, defendant had been the subject of a sustained Welfare and
Institutions Code section 602 petition in October 2010 , based on his possession of a weapon at school . As an adult, he was convicted of misdemeanor gun possession in August 2011. He was on probation in that case when he was arrested for possession of a controlled substance in February 2012. Defendant was st ill on probation in the gun possession case and the drug case was still pending when he engaged in the conduct underlying his conviction in this case. The probation department recommended the high

term based on aggravating circumstances that included the number and increasing
seriousness of defendant ’ s prior convictions and his unsatisfactory performance on probation. Notwithstanding the probation department ’ s recommendation, t he trial court suspended i mposition of sentence and placed defendant on three y ear ’ s probation. According to a probation report dated December 19, 2012, defendant was in violation of several conditions of his probation. The report states: “ It appears that the defendant is not taking the court ’ s orders seriously and perhaps a suita ble time in custody
will be sufficient to alert the defendant that further non

- compliance will not be tolerated. ” At a hearing in March 2013, defendant admitted violating probation. Finding defendant
in violation of the conditions requiring him to report to his probation officer and to complete community labor and drug rehabilitation programs , the trial court revoked his probation . I n exchange for a waiver of all “ back

- time ” (i.e. pre

- sentence custody credits)
,3

the trial court reinstated defendant ’ s prob ation on the same terms as before, including the community labor and drug rehabilitation program conditions

. After defendant failed to meet with his probation officer, a bench warrant was issued. At the probation violation hearing on September 15, 2014, the trial court observed that the original probation report indicated defendant was on probation at the
time he committed the offense in this case and that defendant ’ s prior unsatisfactory performance on probation in that case was among the listed aggravat ing factors

. The
matter was continued to October 6 and then to October 29, 2014, for a contested probation revocation hearing

. At the hearing on October 6, the trial court noted that while on probation in this case, defendant was arrested for a weapons v iolation. Following the hearing on October 29 , 2014, t he trial court revoked defendant ’ s probation, finding defendant had been arrested on a new charge ( a violation of the condition that he obey all laws)
, failed to report to his probation officer and fai led to complete community labor and drug rehabilitation programs. The trial court explained it
selected the 3

- year high term because “ there was a complete abysmal failure on probation in considering the fact he ’ s been given the opportunity back in March o f 2013 for another
reinstatement .

. . . He ’ s absconded. He ’ s picked up a new case. And he has not successfully completed probation in his own matters. [¶] So the high term is appropriate. ” Defendant timely appealed.

DISCUSSION

A. Imposition of the H igh Term Was Not Error

Defendant challenges the trial court ’ s imposition of the three

- year high term. He

argues the t rial court impermissibly based its sentencing choice on defendant ’ s unsatisfactory performance on probation in this case, which violat es California Rules of Court, rule 4.435(b) because it was a circumstance that did not exist at the time probation was initially granted. 1 We disagree.

1 All future undesignated rule references are to the California Rules of Cour t.4

We review a trial court ’ s decision to impose a particular sentence for abuse of
discretion

. Even if the c ourt has stated both proper and improper reasons for its choice, we will not set aside the sentence absent a showing it is reasonably probable that the trial
court would have chosen a lesser sentence had it known that some of its reasons were improper. ( P eople v. Jones (2009) 178 Cal.App.4th 853, 860

- 861 ( Jones ) .) When a defendant violates probation, the sentencing judge may make any disposition of the case authorized by statute. ( R ule 4.435(a).) If imposition of judgment was suspended at the time probat ion was originally granted, the sentencing court is statutorily authorized to impose “ any time within the longest period for which the person might have been sentenced.

. . . ” (Pen. Code, § 120 3

. 2 , subd. (c).) An upper term

sentence may be based on any a ggravating circumstances the sentencing court deems significant, subject to certain restrictions . ( Jones , supra , 178 Cal.App.4th at p. 867.) Relevant here is the prohibition that the length of a sentence imposed upon revocation of probation “ must be base d on circumstances existing at the time probation was granted
, and subsequent events may not be considered in selecting the base term

. . . . ” (Rule 4.435(b)(1)
, italics added .) Generally, a sentencing judge may not consider post

probation conduct. ( Peo

ple v. Colley (1980) 113 Cal.App.3d 870 .)
Rule 4.435(b)(1) does not limit t he sentencing judge to considering circumstances that existed at the time probation was originally granted if probation was revoked and
then reinstated

. Under such circumstances, t he sentencing judge at a subsequent revocation hearing “ ’ may take into account events occurring between the original grant
and the reinstatement. ’ [Citation.] ‘ To hold otherwise would seriously impede a court ’ s flexibility to deal effectively with the o ffender who, granted the “ clemency and grace ” of probation in the hop es of achieving rehabilitation [citation], proves unable to abide by the
conditions of t hat liberty the first time out. ’ [Citation.] ” ( People v. Black ( 2009)
176 Cal.App.4th 145, 151 , c iting People v. Harris (1990) 226 Cal.App.3d 141.) Here, the original probation report recommended the high term based on aggravating circumstances that included the number and increasing seriousness of
defendant ’ s prior convictions and his unsatisfactory performance on probation in prior5

cases. Thus, defendant ’ s unsatisfactory performance on probation was a circumstance that existed at the time probation was originally granted in May 2012. That the sentencing judge considered this circumstance can be inf erred from h er reference to these aggravating factors at the September 2014 hearing. Further, under Black , supra , and Harris, supra , the sentencing judge could properly consider defendant ’ s poor performance on probation between the original grant of proba tion in May 2012 a nd the
revocation and reinstatement of probation in March 201 3

. That the judge did so is demonstrated by h er comment, “ there was a complete abysmal failure on probation in considering the fact he ’ s been given the opportunity back in Marc h of 2013 for another
reinstatement

. . . . ” Although perhaps inartfully stated, there is nothing in the trial court ’ s statement that demonstrates the court only considered defendant ’ s conduct after March 2013. Rather a fair reading of the record indicate s the court took into account
defendant ’ s performance on probation prior to the conviction in the present case and lawfully considered defendant ’ s performance between the May 2012 conviction and his probation reinstatement in March 2013. Assuming the sent encing judge also improperly considered events occurring after the March 2013 reinstatement of probation, defendant
has not show n a reasonabl e probab i l ity that the court would have chosen a lesser sentence
if it had known that was an improper reason to imp ose the upper term. ( Jones , supra , 178 Cal.App.4th at pp. 860

- 861.)

DISPOSITION
The judgment is affirmed.

RUBIN, ACTING P. J. WE CONCUR:

FLIER , J.

GRIMES, J.