P. v. Guerrero
Filed 7/30/12 P. v. Guerrero CA1/2
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opinion has not been certified for publication or ordered published for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
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JESUS
GUERRERO,
Defendant and Appellant.
A134360
(San
Francisco County
Super. Ct.
No. SCN-204724)
Appellant
was placed on probation in 2008 after pleading guilty to a charge of
allegations of involvement with a street gang in San
Francisco. In
2011, the superior court revoked his probation after it was alleged, and the
court found, that he had been present in a proscribed area of
Francisco both wearing his prior gang colors and in the company of another
person also wearing those colors.
Appellant appeals the revocation of probation, but we find no abuse of
discretion by the trial court and hence affirm its order.
On March 6, 2007, the San Francisco
District Attorney filed a two-count complaint against appellant. The first count charged attempted murder
(Pen. Code, § 664/187, subd. (a))
and the second alleged assault with a
deadly weapon other than a firearm, i.e., a knife. (§ 245, subd. (a)(1).) Both counts included alleged enhancements, i.e.,
personal infliction of great bodily injury, personal use of a deadly weapon,
and commission of the offense for the benefit of a street gang regarding the
first count (see §§ 12022.7, subd. (a), 12022, subd. (b)(1), and 186.22,
subd. (b)(1)(A)), and the last-noted enhancement plus a prior strike for
voluntary manslaughter and a prior prison term in connection with the second
count. (§§ 186.22, subd. (b)(1)(A);
667, subds. (d) and (e); & 667.5, subd. (b).)
On
March 19, 2008, appellant
pled guilty to the attempted murder charge although without admitting the
alleged enhancements. The second count
and its enhancements were dismissed.
Although the probation department had its doubts about appellant’
suitability for probation, due to his “extensive criminal history,” including
serving a prison term for killing a person with a knife, the trial court
sentenced him to the upper term of nine years, but with execution of that
sentence suspended. Appellant was placed
on probation for a period of five years, with conditions including a year in
county jail, completion of a two-year drug treatment program at Delancey
Street, and adherence to an agreement not to display the color red, the colors
of the Norteño gang, and that he stay away from the “24th street corridor from
Mission to La Raza/Potrero Garfield Park” in San Francisco.
On
September 14, 2011,
appellant was seen at 24th and Folsom Streets in San
Francisco, part of the prohibited area, wearing a
black and red baseball cap and “red streams” hanging from his pants. Appellant was in the company of another man
wearing “a lot of red.” He was detained
by the police, and thereafter admitted to them that “he did know about the stay
away order” regarding the area he had been in.
The
following day, September 15, 2011,
the District Attorney filed a motion to revoke probation, alleging that
appellant had been in the proscribed area and wearing red while in the company
another man also wearing red. After an
evidentiary hearing conducted on November 18, 2011, the trial court ordered
probation revoked and imposed the previously suspended nine-year sentence,
albeit with an award of both custody and conduct credits.
On
January 6, 2012, appellant filed a timely notice
of appeal.
III. DISCUSSION
Under
section 1203.2, subdivision (a), a trial court may revoke probation “if the
interests of justice so require and the court, in its judgment, has reason to
believe . . . that the person has violated any of the conditions
of his or her probation . . . .” (§ 1203.2, subd. (a).) A trial court’s decision in probation
revocation proceedings is reviewed for abuse of discretion. (People
v. Rodriquez (1990) 51 Cal.3d 437, 443 (Rodriguez);
In re Coughlin (1976) 16 Cal.3d 52,
56; People v. Urke (2011) 197
Cal.App.4th 766, 773; People v. Stuckey (2009)
175 Cal.App.4th 898, 916.) As our
Supreme Court stated in Rodriquez:
Legislature, through this language, intended to give trial courts very broad
discretion in determining whether a probationer has violated probation. (See, e.g., People v. Lippner (1933) 219 Cal. 395, 400
[‘. . . only in a very extreme case should an appellate court
interfere with the discretion of the trial court in the matter of denying or
revoking probation. . . .’] . . . [¶] Our
decision in In re Coughlin, supra, 16
Cal.3d 52, continues to read section 1203(a) as conferring great flexibility
upon judges making the probation revocation determination.” (Rodriquez,
supra, 51 Cal.3d at p. 443.)
That
standard has not been met here. As noted
above, and also in the probation department’s 2008 report to the trial court,
appellant has an “extensive criminal history” including a conviction for
“multiple stab wounds” on a man in 1994.
Prior to that, he had been charged with one juvenile offense and 10
adult felony offenses and convicted of four of the latter. (The others were “dismissed” for various
procedural reasons.) As noted above, his
1994 crime resulted in a 1995 conviction for voluntary manslaughter under
section 192, subdivision (a). He was put
into custody in 1995, apparently paroled sometime early in this century, and
then returned to custody for parole violations five times thereafter, i.e., starting in 2002 and ending when he was discharged
from parole in 2006. The following year,
2007, the crime for which he was most recently convicted, cutting a victim with
a knife, occurred.
Regarding
the latter offense, when appellant was first approached by the police, he
denied having a knife but, after being taken into custody and led away, a knife
fell to the ground. When questioned
about this and his previous denial, appellant replied: “I’m not going to snitch myself off.”
In
the matter before us, appellant concedes in his opening brief to us that he
violated probation by where he was in September 2011. Regarding why, therefore, he should not be
continued on probation, the trial court explained: “There really isn’t much more dangerous
activity that you can conduct other than gang activity, and Mr. Guerrero has
been given ample opportunity to turn his life around and get away from it. He’s no longer amenable to probation. It’s a public safety issue at this
point. [¶] It’s the judgment and
sentence of the Court [that] he’s no longer amenable to probation.”
In
view, among other things, of appellant’s extensive past criminal record and his
admission to the police that he was aware he was in a specifically prohibited
area in September 2011, this is clearly not a “ ‘very extreme case’ ”
in which “ ‘an appellate court [should] interfere with the discretion of
the trial court in the matter of . . . revoking probation. . . .’ ” (Rodriquez,
supra, 51 Cal.3d at p. 443.)
The
parties agree that the record before the trial court was and is unclear as to
whether appellant is entitled to credits for the time he spent in the Delancey
Street program. Both sides recommend
that the matter be remanded to the trial court for clarification of that
issue. We will do so.
The
order revoking appellant’s probation is affirmed. The matter is remanded to the superior court
for the determination of any custody or conduct credits to which appellant may
be entitled for the time he spent at Delancey Street.
_________________________
Haerle,
J.
I concur:
_________________________
Lambden,
J.
I concur
in the judgment:
_________________________
Kline,
P.J.
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All further statutory references are to the Penal Code, unless otherwise noted.
