P. v. Garcia

Filed 2/19/10 P. v. Garcia CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant pleaded no contest to a charge of assault with a deadly weapon and a gang enhancement allegation after participating in a brawl. Defendant argues the trial court erred in excluding certain evidence during the contested sentencing hearing and in denying probation. We affirm.

I. BACKGROUND

In a complaint filed August 28, 2008, defendant was charged, along with three codefendants, with three counts of attempted murder (Pen. Code,  187, 189, 664; counts 13), two counts of assault with a deadly weapon (Pen. Code,  245, subd. (a)(1); counts 4, 5), and one count of participation in criminal street gang activity (Pen. Code,  186.22, subd. (a); count 6). With respect to count 1, the complaint alleged the infliction of great bodily injury. (Pen. Code,  12022.7, subd. (a).) With respect to counts 1 through 3, the complaint alleged the use of a deadly weapon (Pen. Code,  12022, subd. (b)(1)), and with respect to counts 1 through 5, it was alleged the offense was committed in association with a criminal street gang (Pen. Code,  186.22, subd. (b)(1)(C)).

The charges arose from a fight between members of the Norteo and Sureo street gangs following a graduation party in Ukiah. According to the probation report, three members of the Norteo gang received stab wounds, life-threatening in one case, after members of the Sureo gang drove up to the house, left their cars, and attacked the party-goers with knives and a metal pipe. Two of those injured identified defendant as one of the attackers. In the course of the investigation, defendant was found riding in a vehicle that contained a knife with dried blood and Sureo gang paraphernalia. Defendant, 20 years old at the time, had been associated with the Sureo gang during his adolescence and committed minor gang-related juvenile offenses.

Defendant pleaded nolo contendere to the charge of assault with a deadly weapon and an allegation of gang involvement under Penal Code section 186.22, subdivision (b)(1)(B) that was added to the complaint by unopposed amendment. He waived his right to a jury trial of facts related to sentencing under Blakely v. Washington (2004) 542 U.S. 296.

At the sentencing hearing, defendant called one of the Norteo stabbing victims who had identified him at the scene. After the victim refused to testify, the court ruled he was unavailable as a witness. Defendant then called a probation officer who had recounted a conversation with the same victim in an e-mail to the prosecutor. According to the e-mail, the victim told the officer, [T]he Norteos rushed the Sureos and somewhat started it. Although defendant recognized the probation officers account constituted hearsay, he argued it was admissible as a statement against the victims penal interest.

Explaining the e-mail, the probation officer testified the victim told him several cars loaded with Sureo gang members drove up to the house where the graduation party had been held. When the Sureos left their cars and began to approach in an aggressive manner, the Norteos didnt stand around and wait forwait for anything to happen. Theythey also went towards the aggressors. They responded to the aggression. The officer also testified the victim told him it was a member of the Norteos who brought the knife to the fight, not defendant. On cross-examination, however, the probation officer added that the victim told him the Norteo who brought the knife lost control of it during the fight, and it was used by defendant.

Defendant sought to strike the testimony regarding defendants use of the knife on grounds it was not included in the e-mail and was not a statement against the victims penal interest. The court held defendant could not pick and choose among portions of the victims statements and gave defendant the option either of retaining or striking the entirety of the probation officers testimony. Defendant agreed to striking the testimony pending submission of a full written report by the probation officer. In the record before us, there is no indication the matter was pursued further.

Defendant also testified. He admitted being involved in the fight, but he claimed the fight had been started by the Norteos. He said he had ended his gang activities several years before and thought he was being taken to a friends home when the car he was riding in encountered the Norteos. When the Norteos advanced on the car, he got out solely to back up his friends. Defendant testified he did not hit or stab anyone during the fight.

The trial court denied defendants request for probation and imposed a sentence of seven years. In explaining the decision to deny probation, the court noted the offense was a very serious matter because three victims were stabbed, one of them three times. Although the court made no finding defendant personally used the knife, the court noted, Its difficult to believe that he wasnt aware that knives were present or that he was not an active gang member. The court believed even if defendant was not involved in planning the Sureo assault, he must have been aware of the nature of the plan by the time he arrived at the party. The court concluded by noting that gang violence posed a threat not only to the participants but to other members of the community.

II. DISCUSSION

Defendant argues the trial court erred in refusing to admit only the portions of the probation officers testimony that were against the victims penal interest and in denying probation.

We decline to address the merits of the courts evidentiary ruling because we find any error to have been harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) The victims statement to the officer did not contradict the basic outline of the incident provided in the probation report. A group of Sureo members pulled up outside a graduation party, left their vehicles, and advanced on the members of the Norteo gang. The fact that, as the victim stated, the Norteos did not wait for the Sureos to reach them before rushing into a confrontation provides no mitigation of the charges. By driving up and leaving their cars in an aggressive manner, the Sureos sparked the fight. While the probation officers testimony did suggest that defendant was not the person who brought the knife to the fight, that fact alone was not likely to change the trial courts probation decision. On the contrary, the trial court expressly did not rely on defendants use of a knife, making no finding on that issue. Accordingly, even if the trial court had decided to admit only the favorable portions of the probation officers testimony, as defendant requested, the testimony would not have changed the courts sentencing decision. (See, e.g., People v. Price (1991) 1 Cal.4th 324, 492.)

Nor do we find any error in the trial courts decision to deny probation to defendant. 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. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.)  The grant or denial of probationis within the trial courts discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion. [Citation.] (Ibid.) In reviewing [a trial courts determination whether to grant or deny probation,] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial courts order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances. [Citation.] [] The decision to grant or deny probation requires consideration of all the facts and circumstances of the case. [Citation.]  (People v. Weaver (2007) 149 Cal.App.4th 1301, 13111312.)

As the trial court noted, this brawl, in which a deadly weapon was used and three people were injured, one of them seriously, was a serious matter. Regardless of whether defendant personally used the knife, two of the victims identified him as a participant in the fight, and defendant admitted the attack was gang-related. Accordingly, several factors to be considered in granting or denying probation under California Rules of Court, rule 4.414 weighed in favor of denying probation: the crime was serious, defendant was an active participant in the attack, there was no apparent mitigating provocation, and defendant had a prior record of gang-related offenses. Further, the trial court acted within its discretion in considering the gang-related nature of the offense, even though it is not specifically listed in rule 4.414. (Cal. Rules of Court, rule 4.408.) While there were also mitigating factors, such as the defendants relative youth, we find no basis for questioning the trial courts exercise of its discretion to deny probation.

Defendants primary argument is that the trial court would have granted probation had it considered the probation officers testimony. As discussed above, we do not agree. The probation officers testimony did not challenge the factors on which the trial court relied in denying probation.

Defendant also argues he had no prior record of violent conduct. The lack of a record of violent offenses, however, was only one factor to be considered in the probation decision. In addition, defendant did have a record of juvenile gang-related convictions, and the trial court viewed defendants commission of this offense while acting as part of a street gang to be a significant factor in denying probation. Accordingly, defendants lack of prior violent offenses does not require a finding of abuse of discretion under these circumstances.

III. DISPOSITION

The judgment of the trial court is affirmed.

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Margulies, J.

We concur:

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Marchiano, P.J.

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Banke, J.

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