Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. O5-090348-4.
Haerle, J.
I. INTRODUCTION
After a jury convicted appellant of four felonies and found two charged criminal street gang enhancements to be true, the trial court denied him probation and sentenced him to a prison term of four (4) years. Appellant appeals, claiming the trial court erred in denying him probation. We reject this claim, and affirm the judgment, including the sentence imposed.
II. FACTUAL AND PROCEDURAL BACKGROUND
In the evening of February 19, 2008, CHP officers patrolling the City of Richmond in Contra Costa County noticed a Nissan automobile with license plates matching those of a vehicle that had been reported stolen earlier that day in Vallejo. The officers pulled the Nissan over, found appellant to be the driver, handcuffed and searched him, finding a small bag of methamphetamine in one of his pockets.
Via a Spanish-speaking CHP officer acting as interpreter, appellant told the officers that he had been in Vallejo the night before looking for cars to steal, had indeed stolen the Nissan he had been caught driving, and had purchased the methamphetamine with money he had secured by selling the stereo receiver he had removed from the car.
The arresting officers noted that appellant had several tattoos on his body, tattoos they recognized as gang-related. One of those tattoos, the one on his right forearm, was “Richmond Sur 13, ” and on the front of one of his shoulders was the number “13.” Appellant admitted to the officers that he was an active member of the “Richmond Sur Trece” (RST), a subset of the Sureño street gang. He also admitted that another RST gang member had told him which vehicle to steal and where to sell the stereo component; he also told the officers that, later that day, “he was planning on taking off the wheels of the vehicle and selling those.” He also admitted that the vehicle had been stolen at the direction of that gang.
As summarized in appellant’s opening brief to us, the number 13 used as a Sureño tattoo indicates the members “enduring loyalty to the Mexican Mafia. Richmond Sur Trece is currently comprised of between 100-300 members, and its primary activities include selling narcotics and stealing cars which are used, in turn, for criminal activities and for selling parts.”
On April 10, 2009, appellant was indicted on four felony counts. Count 1 charged the crime of street terrorism (Pen. Code, § 186.22, subd. (a)); count 2 charged unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)); count 3 charged receiving stolen property, specifically a motor vehicle (Pen. Code, § 496, subd. (d)); and count 4 charged possessing a controlled substance (Health & Saf. Code, § 11377, subd. (a)). As to counts 2 and 3, the indictment also charged criminal street gang enhancements (Pen. Code, § 186.22, subd. (b)(1)).
After a nine-day jury trial, on December 30, 2009, appellant was convicted on all four counts; the jury also found the two charged street gang enhancements to be true.
On January 25, 2010, the trial court denied appellant probation and, instead, sentenced him to four years in state prison.
Appellant filed a timely notice of appeal the following month.
III. DISCUSSION
Appellant’s sole contention on appeal is that the trial court erred in denying him probation. In support of that contention, he notes that the probation department report submitted to the court recommended probation for him, and then argues that the trial court improperly denied him such.
First of all, it is important to note that, as our Supreme Court has noted, indeed several times, the standard of review of a trial court’s action in granting or denying probation is abuse of discretion. In People v. Olguin (2008) 45 Cal.4th 375, 379, it wrote: ‘“Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation. [Citations.] The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions. [Citations.] The primary goal of probation is to ensure ‘[t]he safety of the public... through the enforcement of court-ordered conditions of probation.’” (See also People v. Carbajal (1995) 10 Cal.4th 1114, 1120 & People v. Welch (1993) 5 Cal.4th 228, 233; see, generally, 3 Witkin, Cal. Criminal Law (3d. ed. 2000) Punishment §§ 532, 537.)
In People v. Downey (2000) 82 Cal.App.4th 899, 909-910, one of our sister courts expanded on this principle: “Sentencing choices such as the one at issue here, whether to reinstate probation or sentence a defendant to prison, are reviewed for abuse of discretion. ‘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.’ [Citation.]”
In his opening brief to us, appellant argues that what was involved here was “sentencing errors” and thus “reversal is required unless the reviewing court can determine that the sentencing decision would have been the same in the absence of error.” On the basis of the (easily obtainable) authority noted above, we respectfully, but strongly, disagree with this statement.
The probation report submitted to the court before the January 25, 2010, sentencing hearing noted that, since June 2006, “the defendant has been placed on three grants of court probation in Contra Costa and one grant of court probation in Alameda County. Records reflect that two of the defendant’s probation grants in Contra Costa County were revoked, but all three eventually lapsed. [¶] The defendant is currently on a three-year grant of probation in Alameda County for a misdemeanor auto theft.” It also stated that while he was “incarcerated [presumably on the charges in question here], the defendant has been disciplined for fighting, lying to staff, possessing excess issue jail property, damaging jail property, and hanging pictures in cell.” The report also observed that there were several factors in aggravation regarding the charged crime, and none in mitigation. The former were that “[t]he manner in which the crime was carried out indicates planning, sophistication, or professionalism, ” that “[t]he defendant was on probation when the crime was committed, and that his “prior performance on probation was unsatisfactory.” It also noted that the probation department was “unable to determine if the defendant is likely to comply with the terms of probation” or “whether the defendant was remorseful, since his attorney advised him not to discuss the offenses.”
Nonetheless, the report concluded by recommending a grant of probation: “The defendant is eligible to receive a grant of probation. Considering that these are the defendant’s first felony convictions and he has never been tried on formal felony probation, the undersigned believes that the defendant should be afforded the opportunity to prove that he can be a law abiding citizen. A formal felony probation grant would afford the defendant the opportunity to address his substance abuse and gang issues. If the defendant should fail to take advantage of this opportunity on probation, his grant of probation can be revoked and a state prison sentence could be imposed.”
After the submission of the probation department’s report to the court, appellant’s counsel wrote a letter to the court agreeing with much of that report, but also disagreeing with a few points. For example, that counsel suggested that a possible factor in mitigation would be that appellant’s “behavior with the officers would constitute such a factor.” The letter also confirmed that appellant had previously “been convicted of four misdemeanor offenses, ” including two for driving on a suspended license, one for reckless driving, and one for “unlawfully taking or driving a vehicle.” (Respectively, violations of Veh. Code, §§ 14601.5, 23103, and 10851.) It also conceded that two of his prior probations “were in revoked status” for a period of time.
The trial court opened the sentencing hearing in this case by candidly stating that it “found the probation report rather surprising.” It continued: “[F]rom what I saw at the trial and from what I’ve seen of [appellant’s] record, it seems like putting him on probation is just waiting for the next time that he gets arrested because he seems to be an unrepentant and eager participant in the Sureños.”
In response to these comments from the court, appellant’s trial counsel, a deputy public defender, advised the court that, regarding the court’s reference to his “being unrepentant, ” she was unable to be present at the time of appellant’s interview with the probation officer, and thus the issue of his remorse was “not something that I permitted him to be interviewed on during the probation interview. I did not allow him to be asked about wanting to leave the gang or wanting to have affiliations with the gang or anything in that area because I wasn’t there and I wasn’t comfortable. So I would ask the Court not to view that as a lack of remorse or, you know, absence of desire to renounce his affiliation with the Sureños because that was something that I specifically asked not to be addressed.” The trial court stated that it understood this explanation by appellant’s counsel.
However, notwithstanding that explanation, after further argument by both appellant’s counsel and the prosecution, the trial court stated that “one of the things that I found surprising about this probation report is that it basically says in so many words, we have no particular reason to suppose that he is going to comply with the terms of probation. We don’t have much information one way or the other, and it recommends probation anyway. I’m accustomed to seeing probation reports that I think are a little too heavy handed. This one surprised me on the other end.”
The court then heard more argument from both counsel and concluded on the probation issue by stating: “My view is this is not an appropriate case for probation. I see no basis [for it]. I understand why you chose not to have your client talk about the offenses to the probation officer. But from what I have seen in the trial and from what I’ve seen otherwise, I see no basis for assuming your client has had a change of heart about the RST’s.” The court then proceeded to sentence appellant as noted above.
Bearing in mind our standard of review and the record regarding appellant’s previous offenses and behavior while previously on probation, we find no abuse of discretion in the trial court’s denial of probation.
In his briefs to us, appellant argues that “the record does not support the court’s principle [sic] reason for denying appellant probation in this case, to wit: its belief that he remains an active and eager participant in a criminal gang, ” a reason appellant argues is an “unfounded assumption.” More specifically, appellant contends that: (1) these were his “first felony convictions”; (2) there was no evidence in the record that, subsequent to his arrest, he had engaged in any gang-related activity or arranged for additional tattoos to be placed on his body; (3) there was also nothing in the trial record suggesting that his prior convictions were related to his allegiance to the RST; (4) and appellant had expressed to the probation department a desire to move to Lake Tahoe so he could live there with his girlfriend and their three children.
On the other hand, as argued to the trial court by the prosecution and noted in the Attorney General’s brief to us, there was and is much in the record to support the trial court’s exercise of its discretion to deny probation, specifically appellant’s prior criminal record, his consistent poor performance on probation, and the very substantial evidence presented at the trial (specifically including his admissions to the arresting officers) of his long and loyal subservience to the RST faction of the Sureño street gang. Perhaps most importantly, appellant was on probation for a misdemeanor violation of Vehicle Code section 10851, subdivision (a), in Alameda County when he was arrested for the current offenses. More specifically, the trial court clearly did not rely on the suggestion that, since his arrest, appellant had secured additional RST-related tattoos but, rather, on the much more significant factors just noted.
There was clearly no abuse of discretion in the trial court’s denial of probation to appellant.
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Richman, J.