P. v. Melgar

Filed 12/23/09 P. v. Melgar CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Judith L. Champagne, Judge. Affirmed.

Jennifer Hansen, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Robert M. Snider, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted defendant and appellant Miguel Angel Melgar of vandalism causing over $400 of damage (Pen. Code, 594, subd. (a)^[1]) and assault with a deadly weapon, a sword ( 245, subd. (a)(1)). The jury was unable to reach a verdict on charges that defendant made a criminal threat ( 422) and committed a second assault with the same deadly weapon ( 245, subd. (a)(1)). The trial court sentenced defendant to the middle term of three years for his assault with a deadly weapon conviction and to a consecutive eight-month term for his vandalism conviction. The trial court dismissed the two counts on which the jury was unable to reach a verdict.

On appeal, defendant contends that the trial court abused its discretion in imposing a prison term rather than granting him probation. We affirm the judgment.

BACKGROUND

Defendant and Belen Garcia lived in separate rooms in a house at 1306 North Mohawk Street in Los Angeles. About 12:45 a.m., on July 12, 2008,^[2]Garcia and her boyfriend, Jaime Munoz, were parked in a pickup truck across the street from Garcias house. Munoz had borrowed the truck from a friend. The truck apparently was parked in a red zone. Defendant came out of the house and said to Munoz, Move your fuckin truck or I will move it for you. Munoz had not had problems with defendant in the past, so he ignored defendant. Defendant went back inside the house and returned with a crowbar or tire iron.

Defendant struck the rear and front windows on the drivers side with the crowbar, breaking both windows. Defendant next broke the rear windshield with the crowbar. Defendant went back inside the house and returned with a concrete block. Defendant threw the concrete block at the back of the truck, at the front windshield, and at the trucks hood.

Defendant went back inside the house and returned with a sword. Defendant pointed the sword at Munoz and said he was going to kill him. Garcia stepped between defendant and Munoz and told defendant that he was not going to hurt Munoz. Defendant said, Well, now it is then you, bitch. Defendant ran toward Garcia and Munoz pointing the sword at their stomachs. The tip of the sword came within six inches of Garcia. Garcia was frightened and threw a water bottle at defendant. Defendant stabbed the trucks seats and steering wheel with the sword and also broke the turn signal. Defendant walked away and Garcia called 9-1-1. Munoz paid $700 for repairs to the truck.

Police officers responded to the scene. The officers searched for the crowbar, cinderblock, and sword. The officers found the cinderblock, but not the crowbar or sword. Other police officers searched for defendant. The officers found defendant crouched behind a vehicle. The police separately transported the victims for a field show up. Each identified defendant.

DISCUSSION

Defendant contends that the trial court abused its discretion when it imposed a prison term rather than granting him probation. The trial court did not abuse its discretion.

I. Background

The probation officers report reflects that defendant suffered two misdemeanor convictions for speed contest (Veh. Code, 23109) and a misdemeanor conviction for driving without a license (Veh. Code, 12500, subd. (a)) in 2000. The probation officer stated that defendants conduct appeared to reflect an isolated incident and recommended that defendant be granted probation with, among other terms and conditions, a suitable amount of time served in jail and anger management counseling. At defendants sentencing hearing, defense counsel and the trial court engaged in the following discussion:

[Defense counsel]: The only thing I would want to add, there is an option if the Court is to go along with the grant of probation in this matter of a locked placement in Olive View. I would be able to obtain the assistance of our mental health experts in order to see if we could have Olive View as an option in this case. Submit it.

The Court: Olive View takes people for a very limited period of time.

[Defense counsel]: I am not aware of a time period.

[ . . . ]

The Court: I do note in [defendants] criminal history arrests and convictions for driving under the influence or speed contests, possession of narcotics, there is nothing that indicates mental health issues. There was no evidence at the trial of mental health issues other than the witnesses describing his conduct as very violent and something beyond what theyd ever seen.

When alcohol plays a role or drugs or just a temper over some unknown issue, the Court is unable to speculate. I dont have a history of mental illness. I do have conduct that demonstrates to the court dangerousness. He used a machete. Within moments he had partially destroyed a vehicle, assaulted an unarmed individual. There was nothing provocative about the conduct of the victims and witnesses.

For him to have behaved in such an aggressive and violent manner without any provocation, I think he is unsuitable for probation. I dont think he can be safely managed within the community.

In this matter as to all counts, probation is denied.

II. The Trial Court Did Not Abuse Its Discretion In Denying Probation

Probation is an alternative form of punishment in those cases when it can be used as a correctional tool. (People v. Edwards (1976) 18 Cal.3d 796, 801; People v. Balestra (1999) 76 Cal.App.4th 57, 67.) Trial courts have wide discretion in granting or denying probation. (People v. Kronemyer (1987) 189 Cal.App.3d 314, 364.) A trial courts decision denying probation will not be disturbed on appeal except upon a clear showing the trial court abused its discretion in an arbitrary or capricious manner. [Citations.] (Id. at pp. 364-365.) A defendant bears a heavy burden in showing that a trial court abused its discretion in denying a request for probation. (Id. at p. 365.) The probation officers report and recommendation are advisory only, constituting aids to the sentencing court in its exercise of discretion in determining an appropriate disposition, and thus may be rejected in their entirety. [Citations.] (Id. at p. 366.)

A trial court must determine if a defendant is eligible for probation. (Cal. Rules of Court, rule 4.414(a)^[3].) Any person who used, or attempted to use, a deadly weapon upon a human being in connection with the perpetration of the crime of which he or she has been convicted shall not be granted probation [e]xcept in unusual cases where the interests of justice would best be served if the person is granted probation. ( 1203, subd. (e)(2).) For those cases that are statutorily ineligible for probation, rule 4.413(b) directs trial courts to apply the criteria in rule 4.413(c)^[4]to determine if the case is unusual. If the case is unusual, then the trial court is to apply the criteria in rule 4.414^[5]to decide whether to grant probation. (Rule 4.413(b).)

Defendant contends that the trial court took a very narrow and closed minded approach to the evaluation of [his] suitability for probation and it was an arbitrary and capricious decision to punish [him] with prison rather than probation and appropriate jail time. Defendant has failed to meet his heavy burden of showing that the trial court abused its discretion in denying his request for probation.

The evidence adduced at trial shows that defendant engaged in a violent and unprovoked attack on Munoz with a deadly weapon and on Munozs truck. For no apparent reason, defendant exited his house and ordered Munoz to move his truck. When Munoz did not comply, defendant went back inside his house and retrieved a crowbar. Defendant then vandalized Munozs truck, breaking two windows and the rear windshield. Apparently not satisfied with the damage he had inflicted on the truck with the crowbar, defendant went back inside the house and retrieved a concrete block that he used to vandalize the truck further.

At some point, defendant stopped vandalizing the truck and retrieved a sword from the house that he pointed at Munoz, stating that he was going to kill Munoz. When Garcia interceded, defendant ran toward Garcia and Munoz pointing the sword at their stomachs. Thereafter, defendant broke off his attack and resumed vandalizing the truck, stabbing the trucks seats and steering wheel with the sword and also breaking the turn signal. Such evidence amply supports the trial courts determination that defendant had behaved in an aggressive and violent manner without any provocation, that defendant could not be managed safely in the community, and that defendant was therefore unsuitable for probation.

Defendant acknowledges that his bizarre behavior was not explained at trial by a mental health expert, but contends that such behavior demonstrates either mental health or substance abuse problems that do not amount to a defense, but would be better resolved with treatment, as opposed to prison. Defendants speculation on appeal about supposed mental health or substance abuse problems and their treatment is not evidence that would support a determination that the trial court abused its discretion in denying probation.

Defendant contends that it was unreasonable for the court not to follow the [P]robation [D]epartments recommendation and suspend a prison sentence in favor of probation and a suitable period of jail time. The probation officers recommendation was advisory only and, properly, could be rejected by the trial court in its entirety. (People v. Kronemyer, supra, 189 Cal.App.3d at p. 366.) Since the trial court did not abuse its discretion, we affirm the judgment.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MOSK, J.

We concur:

ARMSTRONG, Acting P. J.

KRIEGLER, J.

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^[1] All statutory citations are to the Penal Code unless otherwise noted.

^[2] The information alleges the events occurred on July 25, 2008. This date is supported by the record. Other dates in the record and in the parties briefs appear to be mistaken.

^[3] All rules citations are to the California Rules of Court.

^[4] Rule 4.413(c) provides:

(c) Facts showing unusual case

The following facts may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate:

(1) Facts relating to basis for limitation on probation

A fact or circumstance indicating that the basis for the statutory limitation on probation, although technically present, is not fully applicable to the case, including:

(A) The fact or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence; and

(B) The current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense.

(2) Facts limiting defendants culpability

A fact or circumstance not amounting to a defense, but reducing the defendants culpability for the offense, including:

(A) The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence;

(B) The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation; and

(C) The defendant is youthful or aged, and has no significant record of prior criminal offenses.

^[5] Rule 4.414 provides:

Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant.

(a) Facts relating to the crime

Facts relating to the crime include:

(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

Facts relating to the defendant include:

(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.