THE PEOPLE, Plaintiff and Respondent, v. DESTINY JUANAE MARIE JONES et al., Defendants and Appellants.
C101944 (Super. Ct. Nos. 62-190657B, 62-190657C)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)
Filed 10/1/25
NOT TO BE PUBLISHED; California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
PROCEDURAL BACKGROUND
In 2023, the prosecutor charged Larkins and Jones1 with grand theft of property (
Pursuant to a negotiated plea bargain, Larkins pled no contest to grand theft and organized retail theft (counts one & two) and Jones pled no contest to organized retail theft (count two). Under the terms of the agreement, the remaining counts were dismissed pursuant to People v. Harvey (1979) 25 Cal.3d 754. In addition, Larkins understood the sentence “lid” to be two years eight months, and Jones understood her sentence lid to be two years.
A. Factual Basis
The following served as the factual basis for the plea, to which Larkins and Jones each stipulated. “On or about October 25, 2022, in Placer County, the Defendants Kenterra Marie Larkins, Areyana Nina Hill and Destiny Juanae Marie Jones in violation of
“More specifically, Your Honor, as occurring on October 25th of 2022, in Placer County, these three defendants that are before the court today entered the Lululemon at the Galleria [mall]. They entered the store together, grabbed approximately 129 leggings valued at $15,222. [¶] They then left the mall and went in a car together that was registered to Defendant Larkins. The car was subsequently stopped. All of the merchandise was recovered, and all three were passengers within the vehicle.
“Moreover, Your Honor, as to Defendant Jones and Larkins for the 490.4, there is also evidence that the day prior in Sacramento on October 24th of 2022, both Defendant Jones and Defendant Larkins were identified as going into the Lululemon at—in Sacramento and stealing items from that store as well.”
B. Sentencing Hearing
The probation department prepared a pre- and postplea report for both Jones and Larkins. As to each defendant, a probation officer initially indicated that probation was a viable option but, in the postplea reports, a different officer ultimately recommended the court sentence each defendant to a term of two years; the officer opined that
During the sentencing hearing, an organized retail crime investigator for Lululemon testified that one of the factors leading to the apprehension of Jones and
C. Jones‘s Sentencing
The prosecutor submitted a sentencing memorandum, to which she attached two exhibits: text messages between Jones and Larkins in which they planned retail thefts and photos of the event leading to the instant charges. During the sentencing hearing, the prosecutor stated that although she initially thought a two-year sentence was too harsh, the text messages between Jones and Larkins indicated they planned to “hit” more stores in the Bay Area and planned to sell their goods to a “fence” who would resell the stolen merchandise. The prosecutor opined that this was not a situation where two young women were caught up in incidents of peer pressure. Rather, the thefts were something they spoke about in a cavalier manner and with sophistication, including indicating knowledge of when less security would be present at different stores. The prosecutor further argued that the submitted photos showed “the brazenness of these women to go in and carry out large amounts of merchandise often in front of multiple employees. At least on two of the videos that I watched there were children in the store when all of this was going on.” Finally, the prosecutor noted, “we also know they were carrying pepper spray I believe at the Sacramento one.”
Defense counsel responded that Jones was “quite young” and was “working on herself.” Jones herself expressed remorse and noted that she was young and has worked hard to change her life around.
In sentencing Jones, the trial court made the following comments:
“In considering the facts related to the crime, for this particular case as related to this particular defendant, the nature of this crime compared to other instances is exceedingly more serious than other instances. This is not a simple grand theft. This is not a simple grand theft of $1,000. This is not a shop lifting case. This is an organized, planned, sophisticated assault, not only on the store but assault on the people in the store who are subject to being hurt when such an event occurs and such a crime occurs. The Court is concerned the seriousness of this includes the fact that there were children present, so the nature and seriousness and circumstances of this crime compared to other instances of theft crimes or even the same crime is quite serious.
“In addition, the Court considered whether or not the defendant was armed with or used a weapon. The Court also considered the monetary loss. The probation report indicates that the monetary loss was $33,276; however, it appears that between the two stores that there is substantial other losses, so that‘s a substantial loss.
“The Court has also considered whether Ms. Jones was an active or passive participant. Based on all available information, she was an active participant, not only an active participant, but a participant in the planning of the matter in terms of the sophistication and then whether or not the crime involved sophistication. Clearly by all available information, it did. The Court also considered -- and I note in terms of the facts, just the fact that they were so quick demonstrates the sophistication of the crime.
“Related to the facts related to the defendant, certainly she is willing to comply with probation. Certainly her ability to comply appears she may have the ability to comply with probation, and in addition minimal, no criminal record of note.
“The Court has also considered the defendant‘s life in terms of whether or not there is an impact there in terms adverse consequences. But in evaluating whether or not probation is appropriate, the Court considered all of those factors, but also considered, again, any factors in aggravation and mitigation as relates to whether or not probation is appropriate. And, again, I get back to the question of sophistication, the planning involved in such an event, the loss, the great loss, and whether or not the conduct involved violence, and the fact that there are people present. Certainly that was a factor the Court has considered. But the Court also considered that factor in mitigation relating to the lack of record and her youth. Nineteen at the time of the event.
“I don‘t know that I could say it any better than probation, because when I balance all of those factors to determine whether or not probation is appropriate, probation at page 16 of her report line 1 states, quote, ‘The magnitude of the defendant‘s crimes cannot be overlooked. She chose to conspire with multiple codefendants to deprive the victim of over $15,000 worth of merchandise. The defendant and codefendants’ brazen act of theft put store employees and innocent bystanders‘—innocent bystanders—‘including children at risk of harm during the quick escape and get away.’ That‘s the primary thing to focus on.
“I have considered the defendant‘s remorse as well expressed here today. Obviously different, but expressed here today. And also, as probation did, I give credit to her lack of criminal history, but when I weigh and balance all those factors, the factors that weigh in favor of denying probation are greater, and so I would decline and I would deny probation based on that assessment.
“Turning now to the question of whether or not—what term, what 1170 sentence the Court should impose, the Court has in this particular case—because the People agreed to a lid of two years, the maximum the Court can impose is the middle term of two years.
“So for a violation of
After the court imposed the sentence, the court asked the parties if there was anything further that they wanted to say and defense counsel responded: “No, Your Honor. Thank you.”
D. Larkins‘s Sentencing
The prosecutor submitted a sentencing memo requesting imposition of a two-year eight-month sentence, arguing that Larkins‘s repeated participation in a sophisticated organized retail theft crew warranted the sentence lid. As support, the prosecutor attached several photos of the incident and text messages between Larkins and Jones in which they planned retail thefts and communicated how to offload the stolen materials for profit.
With respect to Larkins, the trial court provided the following reasoning.
“With respect to whether or not probation is appropriate, I have considered that, and so that‘s what I‘m going to talk about now. Again, you are eligible for probation. And in considering whether or not probation is appropriate, I considered the Rules of Court 4.414, and I‘ve also considered any factors in aggravation or mitigation that factor in to whether or not probation is appropriate.
“In addition, when I have to consider whether or not to grant probation, I have to consider the amount of loss. The probation report for you says the loss was $33,276, but as set forth here today, the loss appears to be $48,496. That‘s a significant amount of loss for anyone.
“I also have to consider and I have considered whether you were an active or passive participant. Based on all available information, I can‘t overlook that you were active. You were an active participant. You were involved in the planning. Involved in—as it was mentioned earlier today, October 25th wasn‘t the only time. There was all this planning that led up to this event on October 25th. Apparently there were other events. But in terms of the separation of that conduct, that planning is significant in and of itself. The actual act of going into Lululemon on October 25th was serious.
“Part of the evaluation is whether or not the crime was sophisticated or professional. In this case you wore a mask. There was a duffle bag. Carrying garbage bags. There were many codefendants. Clearly you knew exactly where you were going
“In terms of the facts relating to you, I have to consider in terms of granting probation, and clearly you are willing to comply with probation. Clearly you demonstrated over the course of the pretrial proceedings that you can comply because you complied with these terms. You have the familial support. You have no criminal history other than those DMV violations, but no criminal history. You have training and education. Certainly there is going to be an effect on your child with imprisonment. Certainly there is [sic] adverse consequences related to the felony conviction. At the same time, you‘ve expressed remorse. I think your remorse is genuine. But when I think about how much potential you have and I think about the decisions you‘ve made in the past, I also have to weigh and balance that with protecting society, punishing you, isolating you for a time period. I have to weigh and balance all of those things together.
“In terms of the factors in aggravation as they relate to whether or not I grant probation, I considered all those same things in terms of the sophistication, the planning, the taking of great monetary value, the vulnerability of the victims, your lack of criminal record. You were 22 at the time of the offense. You are 24 now. I‘ve considered all of those factors.
“After a full consideration I weigh and balance all of those factors, it‘s the seriousness of your conduct. The seriousness of the planning, the brazen conduct, the amount of money that was at stake, the people you put in a place that you would not have been wanting to be a victim of such a crime. I know that based on everything I read about you. You have it in you to be better. You will be better, but right now I have to deal with what decisions you made in the past. Based on all of that information, I am going to decline to grant you probation. I‘m going to deny probation.”
The trial court sentenced Larkins to the aggregate term of two years eight months as follows: the middle term of two years on count one plus eight months, one-third the
Each defendant filed a notice of appeal.
DISCUSSION
I
Jones‘s Midterm Sentencing
Jones contends the trial court erred in imposing the middle term, as her youth was a factor in mitigation requiring imposition of a presumptive low term pursuant to
“After a sufficient factual basis to support the circumstances in aggravation or mitigation is found, the court enjoys broad discretion in its sentencing determination.” (People v. Hilburn (2023) 93 Cal.App.5th 189, 205.) We review the court‘s sentencing decisions for an abuse of discretion. (People v. Salazar (2023) 15 Cal.5th 416, 428, fn. 8.) “That ‘discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an “individualized consideration of the offense, the offender, and the public interest.” ’ [Citation.] The court abuses ‘its discretion . . . if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.’ ” (Hilburn, at p. 206.) The court‘s ” ’ “decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ ” (People v. Carmony (2004) 33 Cal.4th 367, 377.) In other words, “a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Ibid.)
A. Lower Term
Jones contends the trial court erred in considering her youthfulness as a “regular or normal mitigating factor as opposed to being a super mitigant” that requires imposition of the low term. She contends that because the record establishes this super mitigant, she
First, Jones forfeited this claim by failing to ask the trial court to impose a lower term sentence pursuant to
Even if not forfeited, we disagree Jones is entitled to relief.
Although all the parties acknowledged Jones was young—only 19 years old at the time of the offense—neither the probation report nor defense counsel suggested that Jones‘s youthfulness contributed to the commission of the offenses in this case. On appeal, Jones claims the record shows that her mother had health issues that required Jones to become a provider at a young age, but this also fails to explain how youthfulness was a contributing factor in the offense. Indeed, the evidence indicates she engaged in sophisticated planning and reflection rather than in impetuous behavior that is often a hallmark of youth. (See People v. Franklin (2016) 63 Cal.4th 261, 283 [Among the “‘hallmark features‘” of youth are “‘immaturity, impetuosity, and failure to appreciate risks and consequences‘“].)
B. Middle Term
Jones next contends the trial court abused its discretion by imposing a middle term sentence because the aggravating factors were not supported by the evidence and did not outweigh those in mitigation. To the extent she contends the court failed to properly weigh the aggravating and mitigating factors, she has forfeited this claim by failing to raise the issue at sentencing. As a general rule, “all ‘claims involving the trial court‘s failure to properly make or articulate its discretionary sentencing choices’ raised for the first time on appeal are not subject to review.” (People v. Smith (2001) 24 Cal.4th 849, 852.)
With respect to Jones‘s contention that the court‘s decision was not factually supported, we note that “[t]he plain language and statutory context of
Jones does not challenge the trial court‘s findings that she took part in a sophisticated organized retail theft or that it resulted in a substantial loss for the company. (See rule 4.421(a)(8) & (a)(9).) Because under rule 4.420 the court was not required to rely on any “aggravating” factors when choosing between the middle and lower terms, it reasonably could have relied on none or on these factors alone to impose a midterm sentence. (Cf. People v. Hall (1994) 8 Cal.4th 950, 964 [where trial court‘s consideration of circumstances in aggravation is permissible under the traditional sentencing guidelines set forth in the rules, the trial court did not err in relying upon that circumstance in aggravation].)
Jones acknowledges that one valid factor may support the middle term sentence. However, she contends the record shows the trial court‘s primary consideration in imposing the middle term was the danger the court speculated to be present during the commission of the offense. She contends the trial court had no support for its findings that: this was an assault with a risk of harm to others, that children were present or that Jones was armed with pepper spray.
First, we agree with the People that there is no indication from the court‘s ruling that it considered Jones armed with pepper spray as a factor supporting the middle term; the court made no such finding.
Finally, we disagree with Jones‘s interpretation of the trial court‘s comment that this was “an organized, planned, sophisticated assault, not only on the store but assault on the people in the store who are subject to being hurt when such an event occurs.” (Italics added.) Contrary to Jones‘s contention, this statement does not constitute a finding that anyone was harmed or attacked by Jones. Rather, it demonstrates consideration of the fact that other people were present and that such an event has the possibility to result in harm of others. Indeed, Jones herself acknowledges there was potential for harm. (See People v. Robins (2020) 44 Cal.App.5th 413, 419 [acknowledging a shoplifting may turn “into a robbery when the thief is confronted by a LPO [loss prevention officer], and the thief assaults the LPO in an attempt to get away“].) The Lululemon investigator testified that employees and shoppers are often scared in these types of cases and, the prosecutor submitted photos of the theft in this case that confirmed the presence of others. While Jones contends it was improper to consider the possibility of such harm, such consideration is consistent with the sentencing goal of providing protection to society. (Rule 4.410(a)(1).)
II
Larkins‘s Consecutive Sentences
Larkins contends that the court abused its discretion when it imposed a consecutive term for count two because both offenses arose from the same operative facts and were not predominantly independent of each other. We disagree.
A. Additional Background
During the sentencing hearing, the prosecutor argued that consecutive sentences were appropriate under
In imposing consecutive sentences on counts one and two for Larkins, the trial court made the following comments.
“Again, it comes back down in your particular case to we have two separate crimes, because we have the crime that you committed on the 25th.
“When I look back at the plea transcript, I looked at the statement of facts and proposed stipulated facts. They were definitely delineated as two separate things in the plea transcript. One was the amount of work and sophistication and planning you did with the other people to steal the merchandise, and then it was committed over a course of a period of time. Then the second separate offense was the one committed on the 25th at Lululemon, and so those two things.
“So as a result, I am going to impose for a violation of
B. Analysis
Before a trial court determines whether to impose a concurrent or consecutive sentence, it must determine whether
When a person is convicted of two or more crimes, the sentences “shall run concurrently or consecutively.” (
Rule 4.425 sets forth some of the factors used in determining whether to impose consecutive or concurrent sentences. Under rule 4.425(a), these include: “(1) The crimes and their objectives were predominantly independent of each other; [¶] . . . [¶] (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.” The court may also consider any circumstances in aggravation or mitigation in deciding
“Only one criterion or factor in aggravation is necessary to support a consecutive sentence.” (People v. Davis (1995) 10 Cal.4th 463, 552People v. Sperling (2017) 12 Cal.App.5th 1094, 1104.) Thus, the sentencing decision was within the bounds of reason based on this fact alone.
Nevertheless, Larkins contends that consecutive sentences are not warranted because both of her convictions arose from the same incident in Roseville. The People counter that consecutive sentences were appropriately imposed because Larkins admitted this was not a “one time” incident; the factual basis included a stipulation that Larkins and Jones were identified as stealing items from the Sacramento Lululemon store the day prior. We agree with the People.
As charged and pled to here, Larkins committed organized retail theft by “[a]ct[ing] in concert with one or more persons to steal merchandise from one or more merchant‘s premises or online marketplace with the intent to sell, exchange, or return the merchandise for value.” (
III
Denial of Probation
Larkins contends the trial court abused its discretion in failing to grant her probation. Jones joins her argument. We disagree.
“Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation. (
” ‘A denial or a grant of probation generally rests within the broad discretion of the trial court and will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner.’ [Citation.] A court abuses its discretion ‘whenever the court exceeds the bounds of reason, all of the circumstances being considered.’ [Citation.] We will not interfere with the trial court‘s exercise of discretion ‘when it has considered all facts bearing on the offense and the defendant to be sentenced.’ ” (People v. Downey (2000) 82 Cal.App.4th 899, 909-910 in the matter of denying or revoking probation.’ ” (People v. Rodriguez (1990) 51 Cal.3d 437, 443.)
Larkins and Jones each contend probation was appropriate in light of their individual factors in mitigation, including the lack of a criminal history, the fact that this was a property crime and not one of violence, and the fact that they each had education and training, plans for the future and were willing to comply with the terms of probation. They contend that the court failed to give appropriate weight to public safety considerations mandated by Jones and Larkins forfeited these claims by failing to object during sentencing. (See People v. Smith, supra, 24 Cal.4th at p. 852.) At no time did either defense counsel object to, seek clarification on, or request to change the sentencing factors as stated by the court. Indeed, when asked by the trial court whether there was anything else to discuss after the court indicated its sentence, defense counsel for both Larkins and Jones replied in the negative. (See People v. Sarmiento-Zuniga, supra, 108 Cal.App.5th at p. 1222.) Nevertheless, under the circumstances of this case, we cannot find that the trial court abused its discretion in refusing to grant probation. The trial court did not abandon its role as an impartial judicial officer as it considered the lack of criminal history, the arguments of counsel, and the reports and letters of support submitted at sentencing. The court gave a lengthy and reasoned explanation for its sentencing choice as to each defendant, specifically considering the amount of loss, the nature of the offense, factors regarding the needs of each defendant, and the public‘s safety. Weighing these factors Larkins contends, and Jones joins in the argument, that the trial court abused its discretion in failing to split her sentence to include a term of mandatory supervision pursuant to In declining to impose a split sentence for Larkins, the trial court made the following comments: “Now, the next evaluation that I have to make is whether or not that I split the sentence or I suspend a portion of that sentence and place you on mandatory supervision for any portion of that sentence. And after a full consideration, I do find after considering Jones‘s defense attorney requested that the trial court grant probation, stating “in the alternative some type of split sentence.” In declining to suspend a portion of Jones‘s sentence and place her on mandatory supervision pursuant to “The question now becomes whether or not the Court splits the sentence, and in determining whether or not to split the sentence pursuant to A trial court has the discretion to either sentence a low-level felony offender to county jail or impose a ” ‘split sentence consisting of county jail followed by a period of mandatory supervision.’ ” (People v. Camp (2015) 233 Cal.App.4th 461, 467; see also People v. Scott (2014) 58 Cal.4th 1415, 1418-1419.) In the latter scenario, the court suspends execution of the concluding portion of the offender‘s sentence and releases them into the community under the supervision of the probation department. (People v. Avignone (2017) 16 Cal.App.5th 1233, 1240.) The period of supervision is “mandatory and may not be earlier terminated, except by court order.” ( Each of the crimes of which Jones and Larkins are convicted qualifies for such a split sentence. ( Larkins and Jones contend that the court failed to identify case-specific factors that overcome the statutory presumption favoring a split sentence and instead merely provided a “generic recitation” of the aggravating factors. They contend the factors in this case favor mandatory supervision and that none of the grounds for denying mandatory supervision under rule 4.415(b) apply. Neither Larkins nor Jones raised these complaints with the trial court and, consequently, has forfeited the challenge on appeal. (People v. Scott, supra, 9 Cal.4th at p. 353 [“defects in the court‘s statement of reasons are easily prevented and corrected if called to the court‘s attention“].) Addressing the merits, however, we disagree with Larkins and Jones. In determining whether to split the sentence pursuant to Based on the foregoing and the trial court‘s consideration of factors specific to the case and each defendant, we cannot say that the court abused its broad discretion in determining, in the interests of justice, that a split sentence was not appropriate. (See People v. Camp, supra, 233 Cal.App.4th at p. 467; People v. Stuckey (2009) 175 Cal.App.4th 898, 916; accord, People v. Catalan (2014) 228 Cal.App.4th 173, 179; see also The judgments are affirmed. /s/ EARL, P. J. We concur: /s/ RENNER, J. /s/ FEINBERG, J.IV
Refusal to Impose a Split Sentence
A. Additional Background
B. Analysis
DISPOSITION