Opinion
A114349
4-30-2007
THE PEOPLE, Plaintiff and Respondent, v. ALLAN JOSEPH CIANCI, Defendant and Appellant.
NOT TO BE PUBLISHED
Pursuant to a negotiated disposition, defendant Allan Joseph Cianci pleaded no contest to assault with a deadly weapon and was sentenced to two years in state prison. He appeals from his sentence, contending that the trial court abused its discretion in denying him probation. We find no abuse of discretion, and affirm the judgment.
I. BACKGROUND
A. Charges and Plea Agreement
Defendant was charged by amended information with making terrorist threats against Danielle McMahon and Brian Lapaglia (Pen. Code, § 422; counts 1 & 2), assault upon Lapaglia with a deadly weapon by means of force likely to produce great bodily injury (§ 245, subd. (a)(1); count 3), and felony vandalism on Lapaglias property (§ 594, subd. (b)(1); count 4). The amended information further alleged that: (1) all offenses were serious felonies pursuant to section 1192.7, subdivision (c); (2) defendant had two prior felony convictions for purposes of section 1203, subdivision (e)(4); and (3) he had served a prior prison term (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
Section 1203, subdivision (e)(4) provides as follows: "(e) Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons: [¶] . . . [¶] (4) Any person who has been previously convicted twice in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony."
Pursuant to a negotiated disposition, defendant entered a plea of nolo contendere to count 3 and admitted the serious felony allegation and probation ineligibility allegation. Under the plea agreement, the trial court could consider granting probation, the indicated sentence was to be two years in state prison, and four years was the maximum sentence the court could impose. Defendant agreed that the court could consider the facts of the dismissed counts in determining his sentence.
The court found defendant guilty on count 3, denied probation, and imposed the indicated sentence of two years. Defendant timely appealed from his sentence.
B. Facts of the Underlying Offense
The following facts are drawn from the probation report:
On October 11, 2005, at approximately 7:15 p.m., an officer was dispatched on a report of a physical altercation between two males. On his arrival, the officer was met by Brian Lapaglia, who appeared to have an abrasion on his shin and was limping. Lapaglia reported that he was attacked by defendant with a metal pipe and that the defendant had left the scene. Lapaglia had arrived at his friends house, defendants ex-girlfriend, to take her and her two children to a meeting. As he was sitting in his vehicle, defendant approached, opened his door, and started swinging a club at him. Defendant used the club to break the Lapaglias car windshield and put approximately three dents on his door. Lapaglia stated that during the attack, he was struck on the thumb, on the leg, and in the abdomen. Defendant told Lapaglia that he was going to stab and kill him. Lapaglia shut and locked his door, at which point defendant struck his car approximately four more times before fleeing the scene.
Defendants ex-girlfriend, Danielle McMahon, stated that she pulled up to her residence with Lapaglia several hours prior to the offense. Lapaglia walked up to defendant and stated, "I dont need your problems, and I dont need your jealousy." Defendant replied, "[Y]oure gonna get it, youre gonna get it." At this point, McMahons mother stepped in to separate the two and defendant said to Lapaglia, "Im gonna stab you."
At the preliminary hearing, a police officer who spoke with McMahon by telephone on the day after the incident, Marti Overton, testified that McMahon told her defendant had threatened her during an argument on the morning of the offense, saying that "he was not going back to jail for some broad, and that if he got arrested and saw her name on a report, that it would be like signing her own death certificate." According to Overton, McMahon stated that she did not tell police about this threat originally because she was afraid of defendant and feared he might hurt or kill her children. When McMahon testified at the preliminary hearing, she admitted defendant made the statement, but denied that she was afraid of defendant or feared that he would carry out the threat.
McMahon also testified that Lapaglia produced the pipe from his car and defendant wrested it from Lapaglias grasp and placed it on the roof of his car. She denied seeing defendant hit the Lapaglia or his car with the pipe. The presiding judge stated on the record that he believed the statement McMahon had given to Overton, and disbelieved her testimony at the preliminary hearing. He recommended that the district attorney consider filing perjury charges against her.
C. Defendants Prior Record
In 1991, officers responding to a report of two individuals engaged in a fight observed one individual, later identified as defendant, swing a baseball bat and strike the victim in the head. Upon his arrest, a bindle of suspected cocaine was found in defendants front pocket. According to the victim, who suffered swelling to his eye and a cut to his head, he intervened in a verbal fight between defendant and his girlfriend. Defendant was granted diversion by the court and successfully completed the diversionary term.
In 1995, at age 29, defendant was convicted of misdemeanor assault and battery. He punched his girlfriend on the side of her head with his fist while they quarreled about who should drive their vehicle home and told her he was going to "rip her world apart." When the pair got home, the girlfriend called the police. Probation was granted but it was later revoked three times and reinstated twice. Defendant was ordered into domestic violence counseling.
In a second incident in 1995, defendant again quarreled with his girlfriend about the use of their vehicle. He grabbed the victims arm and attempted to grab her around her throat. He pulled her purse from her hand and threw it on the floor. When she tried to stop him from driving off, he rolled the window up on her fingers and dragged her a few feet. Defendant was convicted of misdemeanor battery on a person with whom he had a dating relationship (§ 243, subd. (e)), placed on three years probation, and ordered to take domestic violence counseling.
Defendants probation was revoked and reinstated in July 1996 and again in April 1997. In September 1997, defendant failed to stop at a stop sign, collided with a vehicle, and caused serious injury to the occupant of the vehicle. Defendant started walking away from the scene but was stopped and held by people in the area. He was convicted of hit-and-run driving with injury and taking a vehicle without the owners consent, and given a prison sentence. Defendant reported to the probation officer that the victim remained paralyzed from the neck down due to the collision.
In 1998, defendant was charged with violations of Vehicle Code sections 10851 and 20001. He was convicted of an unspecified offense and sentenced to state prison. In 2002, he violated parole. In 2003, defendant was convicted of driving without a license, not having insurance, and violating a promise to appear order. In 2004, defendant was convicted of violating a court order. (§ 166, subd. (a)(4).) In 2005, defendant was convicted of driving with a suspended license. (Veh. Code, § 14601, subd. (a).) His record also shows failures to appear on January 27, 2005 and October 19, 2005, for illegally driving in a car pool lane, driving without a license, not having insurance, and making an unsafe lane change. As of the date of the probation report, four active protective orders were outstanding against defendant.
In discussing defendants previous performance on probation, the probation officer stated: "Probation records indicate that the defendant was very violent and manipulative, and [quoting from an older probation record] `should never be considered for probation in the future, no matter how convincing he appears. "Specifically, " `he is a nightmare to supervise and plays the system in every turn. " The probation officer recommended that probation be denied.
D. Personal Factors
Defendant was born in 1965. He suffered physical abuse at the hands of his father and was a witness to repeated acts of domestic violence between his parents. He self-reported adjustment problems and substance abuse issues early in his life that led to intensive services as a juvenile. He has a long history of substance abuse going back to when he was approximately 11 years old. By 1991, defendant was regularly using cocaine and eventually turned to smoking crack. After his release from prison in 1999, he began using methamphetamine, which continued to be his drug of choice up to the current offense.
Defendant had not participated in a drug treatment program until after the current offense. Shortly before his sentencing hearing, a counselor from Choices verified that he had actively participated in its program for three months. Representatives of three drug treatment programs verified that they were ready to accept him into their programs.
Four friends and former employers of defendant submitted letters to the court attesting to his positive qualities, including his kindness, generosity, supportiveness, honesty, and potential for good.
E. Sentencing
In explaining its decision to deny probation, the court observed that defendants record was "abysmal, considering the record of violence, a record of just awful probation and/or parole performance, under the circumstances." The court then stated: "And now you come before the Court and you are representing to the Court that you are now a changed man. And you know, I dont know whether I can rely upon that or not. As the old saying, and I say it all the time, and people get tired of hearing it, but actions speak louder than words. Your actions in the past would not point toward any type of probationary consideration. [¶] . . . [¶] Accordingly, . . . Im not, under the circumstances, prepared to grant you a probationary sentence. This is not warranted [by] the nature of the offense, the seriousness of the offense, and your lack of cooperation on probation and parole."
II. DISCUSSION
Defendant contends that the trial court abused its discretion by refusing to place him on probation and require him to enter a residential drug treatment program.
As an initial matter, defendant argues at some length that he was not presumptively ineligible for probation under section 1203, subdivision (e)(4) because his two predicate felony convictions—for hit-and-run driving with injury and taking a vehicle without the owners consent—both arose on the same occasion, namely, when he was caught trying to flee the scene of an injury accident in September 1997. According to defendant, the statutory phrase, "previously convicted twice," in subdivision (e)(4) should be construed to mean "on two previous occasions." We are not persuaded.
In People v. Collier (1979) 90 Cal.App.3d 658 (Collier), this court specifically rejected a contention that the legislative intent of section 1203, subdivision (e)(4) was to make ineligible for probation only those persons whose convictions arose out of separate transactions. (Id. at p. 661.) Here, defendant seeks to stretch the statutory language even further, maintaining that the subdivision requires not only two separate transactions resulting in felony convictions, but convictions arising from offenses committed on two separate "occasions." In our view, the phrase "previously convicted twice" is not reasonably susceptible to defendants interpretation, which appears to rest solely on the fact that "on two occasions" is listed in the dictionary as one of the alternative senses of the word "twice." Another dictionary meaning of the word "twice" is "two times: in doubled quantity or degree." (Merriam-Websters Collegiate Dict. (10th ed. 2000) p. 1272.) While "twice" may indeed mean "on two occasions"—or, more precisely, "at two different times"—in some factual contexts, it is not reasonable to believe that the Legislature intended that meaning in this context, when referring to the number of previous felony convictions a defendant had suffered. Had the Legislature intended the courts to disregard some of those felony convictions for purposes of determining a defendants probation eligibility under subdivision (e)(4), it would have added clarifying language to that effect. It would not have expected the courts to understand the word "twice" in a special sense that is not otherwise signaled by the context in which it appears.
In this case, defendants prior felony convictions clearly did arise out of two separate transactions—the unlawful taking of a vehicle and fleeing after an injury accident. These would unquestionably be considered distinct and independent criminal acts for sentencing purposes under section 654, subdivision (a). (See People v. Beamon (1973) 8 Cal.3d 625, 639.)
Defendant next argues that even if section 1203, subdivision (e)(4) applied, his case was sufficiently unusual that the trial court nonetheless abused its discretion in not finding him eligible for probation. Defendant cites California Rules of Court, rule 4.413, which (1) instructs the court on the factors to consider in determining whether the presumption of probation ineligibility is overcome and (2) directs the court, if it finds the presumption is overcome, to proceed to consider the criteria set forth in rule 4.414 to decide whether to grant probation. (Cal. Rules of Court, rule 4.413(b) & (c).) Based on our review of the record, the trial court did not in fact apply the presumption of ineligibility in considering whether to grant probation, but decided that issue solely by reference to the criteria set forth in rule 4.414. Accordingly, we focus on the question of whether the trial court abused its discretion in applying those criteria.
California Rules of Court, rule 4.414 provides that the court is to consider the following factors in deciding whether to grant probation: "(a) Facts relating to the crime [including]: [¶] (1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime; [¶] (2) Whether the defendant was armed with or used a weapon; [¶] (3) The vulnerability of the victim; [¶] (4) Whether the defendant inflicted physical or emotional injury; [¶] (5) The degree of monetary loss to the victim; [¶] (6) Whether the defendant was an active or a passive participant; [¶] (7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur; [¶] (8) Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant; and [¶] (9) Whether the defendant took advantage of a position of trust or confidence to commit the crime. [¶] (b) Facts relating to the defendant [including]: [¶] (1) Prior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct; [¶] (2) Prior performance on probation or parole and present probation or parole status; [¶] (3) Willingness to comply with the terms of probation; [¶] (4) Ability to comply with reasonable terms of probation as indicated by the defendants age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors; [¶] (5) The likely effect of imprisonment on the defendant and his or her dependents; [¶] (6) The adverse collateral consequences on the defendants life resulting from the felony conviction; [¶] (7) Whether the defendant is remorseful; and [¶] (8) The likelihood that if not imprisoned the defendant will be a danger to others."
Here, the crime was serious, involving death threats against two victims and the use of a deadly weapon. The defendant inflicted physical injury and monetary loss on Lapaglia, and put his ex-girlfriend in fear for her own and her childrens lives. Defendant was the aggressor and it cannot be said—especially in view of defendants lengthy history of domestic violence—that the crime sprang out of some exceptional circumstance that is unlikely to recur. As for factors relating to the defendant, the trial court accurately characterized defendants history of violence as "abysmal" and his record of performance on parole and probation as "just awful." Defendants chronic pattern of domestic violence and threats gave every indication that he posed a danger to others if not incarcerated, as further evidenced by the four active protective orders outstanding against him.
While it is possible to speculate about the root psychological causes of defendants anger management and drug abuse problems, and their amenability to treatment, the defendant had devoted little effort in the past to addressing them. The trial court was not required to take defendants word that he was finally ready to do so. As the court noted, actions speak louder than words and if defendant is determined to turn his life in a new direction, a period of incarceration will not prevent him from doing so.
The trial court did not abuse its discretion in denying defendant probation.
III. DISPOSITION
The judgment is affirmed.
We concur:
Marchiano, P.J.
Stein, J.