P. v. Gray

Filed 2/3/10 P. v. Gray CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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Convinced that the driver of a black Lincoln was the same man who had hit his motorcycle two weeks before, defendant Benny Earl Gray followed the car into a convenience store parking lot, confronted the driver, and hit him in the back of the head with a baseball bat. Defendant next used the bat to smash the car windows, causing glass to fly into the eyes of a young female passenger. He ultimately pled no contest to two counts of assault with a deadly weapon (Pen. Code,  245, subd. (a)(1))[1] and, as to the driver, admitted he personally inflicted great bodily injury. ( 12022.7, subd. (a).)

Thereafter, the trial court denied defendants request for a diagnostic test pursuant to section 1203.03, denied defendant probation, and sentenced him to seven years in state prison. On appeal, defendant contends the trial court abused its discretion in failing to refer him for a diagnostic test. We shall affirm the judgment.

DISCUSSION

At the time of sentencing, defendant acknowledged his case is not one in which probation could be granted absent a finding of unusual circumstances,[2] and requested that the court order an evaluation pursuant to section 1203.03.

Section 1203.03, subdivision (a) provides: In any case in which a defendant is convicted of an offense punishable by imprisonment in the state prison, the court, if it concludes that a just disposition of the case requires such diagnosis and treatment services as can be provided at a diagnostic facility of the Department of Corrections, may order that defendant be placed temporarily in such facility for a period not to exceed 90 days, with the further provision in such order that the Director of the Department of Corrections report to the court his diagnosis and recommendations concerning the defendant within the 90-day period.

As noted, defendant contends the trial court abused its discretion in denying his request for diagnostic evaluation. (See People v. McNabb (1991) 228 Cal.App.3d 462, 471 [alleged error in denying a request for a diagnostic study under section 1203.03 is reviewed for abuse of discretion].) We disagree.

Reference for a section 1203.03 diagnostic study is warranted where the court concludes a diagnostic study is essential to a just disposition of the case. The sentencing court abuses its discretion in ruling on a particular matter only where such ruling exceeds the bounds of reason. [Citations.] The fact that a trial judge uses his discretion in a manner different from that requested or suggested, does not mean that the trial judge has abused his discretion. (People v. Myers (1984) 157 Cal.App.3d 1162, 1169; People v. Harris (1977) 73 Cal.App.3d 76, 85.)

Defendant insists a diagnostic evaluation was essential to a just determination of sentence because it might have shown that lessons [he] learned from this felony prosecution and in an anger management program rendered him a suitable candidate for probation rather than prison.

The defense submitted an Alternative Sentencing Report, which contained details of the previous altercation between defendant and the driver victim, which the interviewer described as poor or reckless driving by [the victim] and road rage response by [defendant]. Police were dispatched to the scene of a hit and run accident on that day, and received defendants report that, while he was driving a motorcycle, the driver of a black Lincoln almost hit him; after an exchange of gestures, defendant chased the car, shouted at the driver, and kicked the side of the car when it approached again. The driver of the Lincoln then came alongside defendants motorcycle, and turned into defendant, hitting him with the car. When defendant got back onto the bike and gave chase, the Lincoln stopped abruptly, defendant drove his motorcycle into the car and fell, and the car continued on. The Lincoln proved to be registered to the victim of the instant assault.

The alternative sentencing report also noted that defendant seemed genuinely remorseful. The interviewer did not note any sign that [defendant] has any serious mental health issues, although defendant indicated he was concerned and somewhat depressed because of the pending proceedings and the impact of his actions on his family, the victim, and the victims family.

Under Evaluation, the report concluded that defendants positive history of raising his children and maintaining a relationship with their mother would provide a basis for a recommendation for formal probation, while the extreme injuries incurred by [the victim] would warrant a prison commitment. It suggested that balanc[ing] between these extremes . . . warrants further assessment by diagnostic evaluation.

Before imposing sentence, the court read and considered both the probation report and the alternative sentencing report, which chronicled in detail both the victims brain injuries, as well as defendants family relationships. (Cf. People v. Peace (1980) 107 Cal.App.3d 996, 1000-1002.) The court also noted that defendants remorse and criminal history, although comprised only of misdemeanor convictions, includes two offenses for domestic violence[,] battery with traumatic injury, 273.5, two counts of 242, one count of resisting arrest, [a] charge of driving under the influence of alcohol[;] . . . five out of those six [crimes] involve some type of violence, and it shows a continuing pattern. And at the age of 42, we expect that people will sort of be able to do something with that . . . anger and frustration, and it seems like in your case, the anger and frustration only increased.

This record shows no abuse of discretion in sentencing defendant without a section 1203.03 diagnostic report. (See People v. Swanson (1983) 142 Cal.App.3d 104, 110-111.) The fact that a trial judge uses his discretion in a manner different from that requested or suggested, does not mean that the trial judge has abused his discretion. (Id. at p. 111.)

DISPOSITION

The judgment is affirmed.

SIMS , J.

We concur:

SCOTLAND , P. J.

BLEASE , J.

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[1] Undesignated statutory references are to the Penal Code.

[2] Where a defendant has used a deadly weapon in connection with the crime, or has willfully inflicted great bodily injury while perpetrating the crime, probation shall not be granted unless the court finds it is an unusual case[] where the interests of justice would best be served if the person is granted probation. ( 1203, subds. (e)(2), (3).)