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Filed 1/4/21 P. v. Faber CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

SCOTT ANDREW FABER,

Defendant and Appellant.

 A159465

 (Mendocino County Super. Ct.

 No. SCUKCRCR19330191)

Scott Andrew Faber was convicted pursuant to a plea agreement of 

second degree burglary and misdemeanor petty theft. These two convictions 

were also the basis for probation violations in two other cases. Appellant now 

appeals, contending the trial court abused its discretion when it denied his 

request for a split sentence and instead sentenced him to a straight sentence 

of three years in local custody. For the reasons discussed in this opinion, we 

shall reject this claim and affirm the judgment. 

PROCEDURAL BACKGROUND

Prior Relevant Cases

On January 3, 2019, appellant was charged by criminal complaint in 

case No. MCUK-CRNT-19-30030-001 (case No. 30030)1 with misdemeanor 

1 On August 28, 2020, we granted appellant’s unopposed request for 

judicial notice of the misdemeanor complaint in case No. 30030 and the felony 

complaint in case No. case No. SCUK-CRCR-19-33019-001 (case No. 33019). 
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trespass (Pen. Code, § 602, subd. (t)(1)).2 On January 4, appellant pleaded no 

contest to the charge, and the court suspended imposition of judgment and 

placed appellant on 24 months of summary probation. 

On March 22, 2019, appellant was charged by criminal complaint in 

case No. MCUK-CRNT-19-30773-001 (case No. 30773) with misdemeanor 

identity theft (§ 530.5, subd. (a)); misdemeanor forgery (§ 470, subd. (a)); and 

five counts of misdemeanor theft of access card (§ 484g). On March 26, 

appellant pleaded no contest to the charges and the trial court placed him on 

summary probation for 36 months. The court also found appellant in 

violation of probation in case No. 30030, and revoked and reinstated 

probation in that case. 

Several petitions for revocation of probation were subsequently filed 

between April and August 2019 in case Nos. 30030 and 30773, alleging, inter 

alia, failure to obey all laws. Appellant admitted the violations and probation 

was reinstated in each case. 

Current Cases

On October 2, 2019, appellant was charged by criminal complaint in 

case No. MCUK-CRNT-19-32816-001 (case No. 32816) with misdemeanor 

petty theft (§§ 484, subd. (a), 488, 490.2). 

On October 18, 2019, appellant was charged by criminal complaint in 

case No. 33019 with second degree burglary (§§ 459, 460, subd. (b)). The 

complaint also alleged that appellant had served three prior prison terms, 

pursuant to section 667.5, subdivision (b). 

2 All further statutory references are to the Penal Code unless 

otherwise indicated. 
3

As a result of the charges in these two cases, petitions to revoke 

probation were filed in October 2019 in case Nos. 30030 and 30773, alleging, 

inter alia, appellant’s failure to obey all laws. 

On November 14, 2019, appellant entered open pleas in case 

Nos. 32816 and 33019, pleading no contest to both charges and admitting the 

three prior prison term allegations. The court found that appellant’s pleas 

were a sufficient factual basis to find that he had violated his probation in 

case Nos. 30030 and 30773. 

At the January 21, 2020 sentencing hearing, the court struck the three 

prior prison term enhancements, based on the change in the law. (See

§ 667.5, subd. (b).)3 Then, following the arguments of counsel, the court 

denied appellant’s request for a split sentence and imposed an upper term of 

three years in local custody for the second degree burglary conviction in case 

No. 33019, and a concurrent term of 60 days for the misdemeanor petty theft 

conviction in case No. 32816. The court also terminated probation in case 

Nos. 30030 and 30773. 

On January 23, 2020, appellant filed a notice of appeal. 

FACTUAL BACKGROUND

The stipulated factual basis for the second degree burglary plea in case 

No. 33019 was as follows: On October 15, 2019, appellant “broke into 

Mountain Mike’s Pizza, a commercial business, while that business was 

3 Under the version of section 667.5 in effect when appellant was 

charged in this matter, subdivision (b) required trial courts to impose a oneyear enhancement for each prior prison term served for any felony. In 2019, 

the Legislature passed Senate Bill No. 136, which took effect on January 1, 

2020, and which made this enhancement inapplicable to appellant. (See 

§ 667.5, subd. (b); Legis. Counsel’s Dig., Sen. Bill No. 136 (2019-2020 Reg. 

Sess.) ch. 590.) 
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closed. He entered that business with the intent to commit theft and did 

steal various items, including electronics, tablets, and beer.” 

The misdemeanor petty theft charge in case No. 32816 was based on 

the following allegation: On September 2, 2019, appellant took mail, a 

notebook, and an endorsed check belonging to the victim, all with a value of 

less than $950. 

DISCUSSION

Appellant contends the court abused its discretion when it denied his 

request for a split sentence and instead sentenced him to a straight sentence 

of three years in local custody. 

I. Trial Court Background

At the January 21, 2019 sentencing hearing, the court first stated that 

it did not intend to impose the three prior prison term enhancements, due to 

the change in the law. (See § 667.5, subd. (b).) 

Defense counsel then asked the court to impose the mitigated term and 

a split sentence, with two-thirds of the sentence to be served on mandatory 

supervision. This request was based on the fact that appellant entered an 

early admission with no promises in exchange for that admission, and that he 

had expressed remorse for his conduct. Counsel also argued that appellant 

has a serious drug addiction, which had played a role in the burglary, with 

his addiction driving his criminal behavior. In addition, while in jail, 

appellant had applied to and been accepted into multiple drug treatment 

programs. Counsel believed the fact that appellant had opportunities in the 

past to participate in treatment and had failed, showed how significant his 

methamphetamine addiction was. Counsel stated that the mitigated term 

with a longer split sentence was appropriate because appellant wished to 
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participate in an 18-month treatment program to which he had been 

accepted. 

The prosecutor argued that the court should impose the aggravated 

term and deny the request for a split sentence. The prosecutor agreed with 

the probation department’s analysis that every factor in aggravation relating 

to appellant applied, including the facts that appellant was on two relatively 

recent grants of probation at the time he committed the present offense, one 

of which included seven separate counts of theft related offenses; he had a 

lengthy prior criminal record, which included four felonies and 26 

misdemeanors over the past 20 years; and he had previously violated 

probation on multiple occasions. Although appellant’s early admission of 

responsibility was a mitigating factor, the prosecutor believed the many 

aggravating factors outweighed that mitigating factor. Regarding the split 

sentence, the prosecutor noted that the probation department had initially 

recommended a split sentence when appellant was facing a six-year sentence, 

which had included the three years for the prior prison terms. The 

prosecutor believed that with a longer sentence, a split sentence could be 

beneficial, but appellant’s record and recent poor performance on probation 

“did not bode well that he would actually follow through with his term of 

mandatory supervision.” 

In the presentence report, the probation officer had stated that 

appellant faced a minimum of six years in local prison, and that “[i]f a split 

sentence were imposed as recommended (four years confinement and two 

years on Mandatory Supervision), a balance of 651 actual days of custody 

would remain as of sentencing.” The probation officer believed that “[t]he 

combination of confinement time, coupled with residential treatment and 

supervision may reduce the risk of danger [appellant] poses to the 
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community” and encourage him to pay victim restitution. Probation had 

therefore recommended “a period of long-term confinement coupled with a 

more modest period of supervision” to give appellant “another opportunity to 

follow through with his rehabilitation goals.” 

At the sentencing hearing, however, based on the court’s modification 

of appellant’s sentence from six years to three years, coupled with appellant’s 

prior performance on probation, the probation department changed its 

recommendation to imposition of a straight sentence. Probation would then 

encourage appellant to seek rehabilitative services once he completed his 

sentence. 

Appellant also addressed the court at the sentencing hearing, 

apologizing for his conduct that was a result of his drug addiction and stating 

that he needed help with his addiction for the sake of his family, himself, and 

the community.

The court first explained its decisions to sentence appellant to the 

aggravated term on the second degree burglary count, as follows. “I have 

reviewed the reports, and [appellant], you have one of the longest criminal 

histories that I have seen here recently. And I do see that some of your prior 

misdemeanor convictions were drug related. Of the, I believe, 26 

misdemeanor convictions, six of them are [for] being under the influence or 

being in possession of controlled substances. But by far the majority of your 

criminal convictions, including the felonies are theft offenses, which is what 

you are being sentenced on in—in the two cases here, one felony and one 

misdemeanor. And then being resentenced on two probation misdemeanor 

violations. 

“Of the four felonies there was one crime of violence. You went to 

prison before you were placed on community supervision after being 
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committed to local prison before. And during those period[s] of incarceration 

you were offered treatment. [¶] In fact, you got into one of the best treatment 

programs, Delancey Street, but never completed the program. Apparently 

you walked away from the program. Apparently you were accepted into and 

then walked away from both Solidarity House and Victory Outreach. I am 

not as familiar with Solidarity House, but Victory Outreach is another good 

program. [¶] . . . [¶]

“When I look at your—the factors that . . . the Rules of Court require 

that I look at, it’s not even close that this is an aggravated sentence given the 

factors in aggravation versus the factors in mitigation. . . . [¶] But it is clear 

to this court based on—on those factors that the court is required to consider, 

including the number of prior convictions, the seriousness of those prior 

convictions which include reckless evading from a peace officer, and then 

felony domestic violence, a total of 32 prior convictions, and the fact you were 

on probation in two misdemeanors and had another misdemeanor out there 

for theft, that this—that the factors in aggravation outweigh . . . the sole 

factor in mitigation[,] that you do have a long-standing methamphetamine 

addiction. . . . 

“So I am going to impose the aggravated sentence of three years and 

that will be served in local prison, pursuant to [section 1170, subdivision 

(h)].” 

The court then addressed appellant’s request for a split sentence, as 

follows. “I am not totally convinced the most recent offense, [appellant], was 

based on a drug addiction. What you stole were electronics, laptops or 

tablets, alcohol and beer also. But you have property, at least according to 

the declarations, that if drug addi[c]tion were your reason for stealing that 

you could have sold as well. You have a couple of Harleys and other things 
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that—that also could address a drug addiction. So I think, just to be candid 

. . . that you have adopted a criminal lifestyle, that you like stealing things 

and it’s your history. [¶] . . . . I want you to get help. I don’t want you to be 

in this position. You are right. . . . Your family needs a person who is going 

to provide [for] them consistently and set a good example. You are 40 years 

old. If you are going to change, you have had the opportunities. You were 

given the programs. And I think that this is just who you have decided you 

want to be. It breaks my heart, probably breaks your family’s heart. But you 

are a smart guy, [appellant]. You know what to do, you know how to change. 

You know how to take advantage of things and I don’t think you want to at 

this point. 

“So I am going to deny a split and make this a straight sentence. . . .” 

II. Legal Analysis

A. Governing Law

Under the Criminal Justice Realignment Act of 2011 (Realignment 

Act), “ ‘qualified persons convicted of nonserious and nonviolent felonies are 

sentenced to county jail instead of state prison. [Citation.] Trial courts have 

discretion to commit the defendant to county jail for a full term in custody or 

to impose a hybrid or split sentence consisting of county jail followed by a 

period of mandatory supervision.’ [Citation.]” (People v. Camp (2015) 233 

Cal.App.4th 461, 467; accord, People v. Catalan (2014) 228 Cal.App.4th 173, 

178.) “Split sentences are the preferred disposition in eligible cases because 

they provide released prisoners with close supervision and supportive 

services designed to substantially reduce the risk of recidivism.” (People v. 

Arce (2017) 11 Cal.App.5th 613, 616; see § 1170, subd. (h)(5)(A).) 
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Subdivision (h) of section 1170 provides in relevant part: 

“(2) . . . a felony punishable pursuant to this subdivision shall be 

punishable by imprisonment in a county jail for the term described in the 

underlying offense. [¶] . . . [¶]

“(5)(A) Unless the court finds, in the interests of justice, that it is not 

appropriate in a particular case, the court, when imposing a sentence 

pursuant to paragraph (1) or (2), shall suspend execution of a concluding 

portion of the term for a period selected at the court’s discretion. 

“(B) The portion of a defendant’s sentenced term that is suspended 

pursuant to this paragraph shall be known as mandatory supervision . . . .” 

(§ 1170, subd. (h)(2), (5).)4 

California Rules of Court, rule 4.4155 addresses the Realignment Act’s 

presumption in favor of a split sentence in appropriate cases and sets forth 

certain criteria a court may consider in determining whether to deny such a 

sentence. Rule 4.415 provides in relevant part: 

“(a) Presumption

“Except where the defendant is statutorily ineligible for suspension of 

any part of the sentence, when imposing a term of imprisonment in county 

jail under section 1170(h), the court must suspend execution of a concluding 

portion of the term to be served as a period of mandatory supervision unless 

the court finds, in the interests of justice, that mandatory supervision is not 

appropriate in a particular case. Because section 1170(h)(5)(A) establishes a 

statutory presumption in favor of the imposition of a period of mandatory 

4 Amendments to section 1170, subdivision (h) that took effect after 

appellant was sentenced in 2019 did not alter these provisions of the statute. 

(See Stats. 2020, ch. 29, § 14, eff. Aug. 6, 2020.) 

5 All further rule references are to the California Rules of Court.
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supervision in all applicable cases, denials of a period of mandatory 

supervision should be limited. 

“(b) Criteria for denying mandatory supervision in the interests 

of justice

“In determining that mandatory supervision is not appropriate in the 

interests of justice under section 1170(h)(5)(A), the court’s determination 

must be based on factors that are specific to a particular case or defendant. 

“Factors the court may consider include:

“(1) Consideration of the balance of custody exposure available after 

imposition of presentence custody credits;

“(2) The defendant’s present status on probation, mandatory 

supervision, postrelease community supervision, or parole;

“(3) Specific factors related to the defendant that indicate a lack of 

need for treatment or supervision upon release from custody; and

“(4) Whether the nature, seriousness, or circumstances of the case or 

the defendant’s past performance on supervision substantially outweigh the 

benefits of supervision in promoting public safety and the defendant’s 

successful reentry into the community upon release from custody. [¶] . . . [¶]

“(d) Statement of reasons for denial of mandatory supervision

“Notwithstanding rule 4.412(a), when a court denies a period of 

mandatory supervision in the interests of justice, the court must state the 

reasons for the denial on the record.” (Rule 4.415(a), (b), (d).) 

B. The Court’s Denial of Appellant’s Request for a Split Sentence

At the sentencing hearing, after discussing the criteria supporting 

imposition of an aggravated term, the court discussed its reasons for denying 

appellant’s request for a split sentence. It did not believe that the burglary 

offense was a result of appellant’s methamphetamine addiction, considering 
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what he stole—which included alcohol and beer—and the fact that he had 

personal property, including two “Harleys,” which he could have sold if he 

was stealing solely to support his addiction. Based on the evidence in the 

record, the court expressed its belief that appellant had “adopted a criminal 

lifestyle” and “like[d] stealing things and it’s your history.” Appellant’s 

“history” of theft as a criminal lifestyle, to which the court referred, included 

the facts that he had a total of 32 prior convictions, the vast majority of which 

were not related to drugs but instead were theft related; that he was 

currently on probation for two theft-related misdemeanor convictions; and 

that he had just been convicted of misdemeanor theft. 

These were appropriate factors for the court to consider in determining 

that a split sentence was not in the interests of justice. First, under rule 

4.415(b)(2), criteria for denying mandatory supervision include “[t]he 

defendant’s present status on probation.” In addition, the court’s 

consideration of appellant’s numerous theft-related convictions as an 

indication that he had adopted a criminal lifestyle beyond the exigencies of 

his drug addiction was permissible under rule 4.415, given that the factors 

set forth in that provision are not all inclusive. (See rule 4.415 (b) [court’s 

determination that mandatory supervision is not appropriate “must be based 

on factors that are specific to a particular case or defendant,” and “[f]actors 

the court may consider include: [four listed factors]”], italics added; see also 

rule 4.408(a) [“The listing of factors in these rules for making discretionary 

sentencing decisions is not exhaustive and does not prohibit a trial judge 

from using additional criteria reasonably related to the decision being 

made”].) 

The court also based its decision to impose a straight sentence on 

appellant’s previous opportunities to participate in programs and address his 
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addiction: “If you are going to change, you have had the opportunities. You 

were given the programs. And I think that this is just who you have decided 

you want to be. . . . You know what to do, you know how to change. You 

know how to take advantage of things and I don’t think you want to at this 

point.” The court had just discussed in more detail these previous 

“opportunities” and “programs” when it imposed an aggravated sentence, 

observing that appellant had been “placed on community supervision after 

being committed to local prison before. And during those period[s] of 

incarceration you were offered treatment. [¶] In fact, you got into one of the 

best treatment programs, Delancey Street, but never completed the program. 

Apparently you walked away from the program. Apparently you were 

accepted into and then walked away from both Solidarity House and Victory 

Outreach.” 

The court reasonably considered appellant’s history of repeatedly 

“walk[ing] away” from treatment programs in determining that a split 

sentence was not appropriate in this case. (See rule 4.415(4) [criteria for 

denying mandatory supervision include “[w]hether the . . . defendant’s past 

performance on supervision substantially outweigh the benefits of 

supervision in promoting public safety and the defendant’s successful reentry 

into the community upon release from custody”].) 

Appellant takes particular exception with the court’s decision to impose 

a straight sentence after the probation department changed its 

recommendation from a split sentence—with “a period of long-term 

confinement coupled with a more modest period of supervision”—to a straight 

sentence, based on the fact that appellant was no longer facing a term of six 

years, once the three one-year prior prison term enhancements were stricken. 

Instead, probation would encourage him to seek rehabilitative services after
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he completed his custodial sentence. According to appellant, other than the 

shorter sentence, the same facts existed as when probation had recommended 

a split sentence, and “it was not appropriate to find him no longer amenable 

for a split sentence, that would have given him the opportunity to have 

supervision to ensure success in drug treatment and rehabilitation simply 

because he was facing a shorter term, with the striking of the prior prison 

enhancements.” 

As respondent notes—and as defense counsel acknowledged at the 

sentencing hearing—the length of time of custody exposure is one of the 

listed factors the court may consider in determining whether to deny a split 

sentence in the interests of justice. (Rule 4.415(b)(1) [“Consideration of the 

balance of custody exposure available after imposition of presentence custody 

credits”].) The probation department had initially recommended a split 

sentence based on an assumption that appellant would serve a lengthy 

amount of time in custody, followed by a modest period of supervision. Once 

the three years were stricken from appellant’s sentence, and considering that 

he was also entitled to 196 days of custody credits, neither the probation 

department nor the court was unreasonable in viewing a split sentence—

which would require a much shorter time in custody—as inappropriate under 

the circumstances. (See rule 4.415(b)(1); see also 4.415(b) [court’s 

determination that mandatory supervision is not appropriate must be based 

on factors specific to the case or the defendant].) 

Based on the foregoing, we cannot say that the court abused its broad 

discretion in determining, in the interests of justice, that a split sentence was 

not appropriate in the particular circumstances of this case. (See People v.

Camp, supra, 233 Cal.App.4th at p. 467; People v. Stuckey (2009) 175 

Cal.App.4th 898, 916 [“What the interests of justice require in a particular 
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case constitutes a question uniquely addressed to the broad judicial 

discretion of the trial court”]; accord, People v. Catalan, supra, 228 

Cal.App.4th at p. 179; see also § 1170, subd. (h)(5)(A).) 

DISPOSITION

The judgment is affirmed. 
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_________________________

Kline, P.J.

We concur:

_________________________

Stewart, J.

_________________________

Miller, J.

People v. Faber (A159465)