P. v. Wiggins
Filed 10/22/12 P. v. Wiggins CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
STEVEN EDWARD WIGGINS,
Defendant
and Appellant.
E053555
(Super.Ct.No.
SWF10000930)
OPINION
APPEAL
from the Superior Court
of
County. Joe O.
Littlejohn, Judge. (Retired judge of the San Diego Super. Ct.,
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.
Leonard
J. Klaif, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Lynne McGinnis and
Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant
Steven Edward Wiggins guilty of two counts of assault with a deadly weapon, to
wit, a knife (count 1) and a baseball bat (count 2). (Pen. Code, § 245, subd. (a)(1).)
also found true that defendant personally inflicted great bodily injury upon
the victims. (§§ 12022.7, subd. (a),
1192.7, subd. (c).) Defendant was
sentenced to a total term of five years in state prison with credit for time
served. On appeal, defendant contends
the trial court abused its discretion in violation of his
it sentenced him to prison instead of granting him probation. We reject this contention and affirm the
judgment.
I
FACTUAL
BACKGROUND
Defendant
and his girlfriend Debbie Ziello lived in a house in Riverside County with
Ramon Perez, Tyrone Sanchez, David Fisher, Chris Donatee, and Derrick
Tinsley. The house was an “independent
living†house, and a step up from a “board and care†residence. Tinsley owned the house while Fisher managed
it. Perez considered defendant and
Ziello friends, but stated that he had sex with Ziello on numerous occasions. Defendant knew about Perez having a sexual
relationship with Ziello.
On
the evening of April 25, 2010, Perez, who was on the first floor of the house,
heard defendant and Ziello arguing in their second floor bedroom. He also heard a loud crash come from the
bedroom, as well as Ziello screaming.
Ziello came downstairs and told Perez what had happened (that the two
were arguing and defendant hit her).
When defendant came downstairs approximately a minute later, Perez
became extremely upset at defendant and began punching himself in the head with
his hand in an attempt to encourage defendant to hit him. Perez told defendant to hit him, and not
Ziello because she is a woman. Perez
wanted defendant to hit him so he could hit defendant back. Perez eventually ran upstairs, went into
Fisher’s bedroom, and yelled at Fisher to call Tinsley.
Sanchez
was in the bedroom he shared with Fisher and heard the argument between Perez
and defendant. Sanchez went downstairs
and persuaded Perez to return upstairs with him in order to stop the fight. Sanchez thereafter returned upstairs with
Perez. Defendant also went upstairs and
into his bedroom. Defendant and Perez,
however, continued to argue. The
argument became heated with Perez confronting defendant with “extreme
uncontrollable rage and emotion†and yelling obscenities at defendant in an attempt
to encourage defendant to hit him first.
Sanchez
was standing next to defendant. Sanchez
told defendant, “‘You’re going to go to jail for what you’re doing.’†Defendant became angry, pulled out a knife
from behind his back and stabbed Sanchez in the chest. Sanchez pushed defendant into his bedroom,
and the two struggled on the bed. During
the struggle, defendant stabbed Sanchez a second time in his left arm. Sanchez eventually broke free from the
struggle and punched defendant in the face.
When
Sanchez turned to run away, defendant attempted to stab him in the back. However, Fisher blocked the knife and knocked
the knife out of defendant’s hand. After
kicking the knife out of the way, Fisher threw defendant down back into his
bedroom and told him to stay there.
Defendant grabbed an aluminum baseball bat from underneath his bed and
then attacked Fisher with the baseball bat.
Defendant, with both hands over his head, swung the baseball bat down
onto Fisher’s head, and continued to beat him with the bat after Fisher fell to
the floor face first. Fisher tried to
deflect the blows to his head with his right arm. However, defendant continued to swing the bat
with such force that he broke Fisher’s arm.
Meanwhile,
Perez ran downstairs, picked up a bedpost from the garage, and holding it like
a weapon, returned upstairs. Perez
intended to use the bedpost on defendant, but because defendant had a tactical
advantage, instead ran outside to a neighbor’s house and pleaded with the
neighbor to call 911.
Fisher
and Sanchez eventually retreated to their bedroom and locked the door. Defendant pounded on the door with the
baseball bat, causing a large hole in the door.
Defendant eventually broke through, entered Sanchez’s bedroom and swung
at Sanchez. Sanchez picked up a guitar
and swung it at defendant. Defendant
eventually left. Sanchez called 911 and
provided a report of the incident to the 911 operator.
While Perez was outside,
he saw defendant leave in a white car.
Defendant was spotted by police at a nearby convenience store. Upon contacting defendant, officers found the
baseball bat and knife on the front passenger seat of the vehicle. Officers also noted blood splatter on
defendant’s legs.
Sanchez
and Fisher were both treated at a hospital for their injuries. Sanchez received stitches to close the stab
wounds to his chest and left arm. Fisher
received 14 stitches and eight staples to close his head wound. He was also treated for a broken arm.
Defendant
claimed self-defense. He explained that
he had the knife and bat in his bedroom; and that he had attacked Sanchez, who
was a martial arts expert, because he believed Sanchez was going to kill him.
knife. He further stated that he had
attacked Fisher because he had heard Fisher say that he was going to get a
sword Sanchez kept in the garage. He
acknowledged that he had hit Fisher in the head hard and that he was trying to
kill him.
Defendant
claimed that he had attacked the men first because he did not want to wait to
see if Perez, Sanchez, or Fisher were going to attack or kill him first. He also testified that after Sanchez and
Fisher retreated to their bedroom, he did not leave the house because he was
afraid Perez would attack him with the bedpost and he did not want to be forced
to attack Perez. Instead, he smashed
Sanchez’s and Fisher’s bedroom door with the baseball bat to scare them.
II
DISCUSSION
Defendant
argues that the trial court abused its discretion in violation of his constitutional
rights in denying him probation because this was an unusual case where
probation was warranted taking into consideration all of the facts in this
case. We disagree.
The
trial court is required to determine whether a defendant is eligible for
probation. (Cal. Rules of Court, rule
4.413(a).)
long as they do not fall within one of the categories restricting the
availability of probation. The most
severe restrictions deprive the sentencing court of jurisdiction to grant
probation to the defendant; in other words, probation is unconditionally
prohibited in certain felony cases.
(See, e.g., Pen. Code, §§ 1203.06-1203.09.) Less severe restrictions merely limit the
sentencing court’s authority to grant probation except in unusual cases in
which the interests of justice would
best be served by such a grant. (See,
e.g., Pen. Code, § 1203, subd. (e).)
Section
1203, subdivision (e), prohibits a grant of probation to defendants who have
been convicted under certain circumstances “[e]xcept in unusual cases where the
interests of justice would best be served if the person is granted
probation.†Two such circumstances are
when a defendant uses a deadly weapon or inflicts great bodily injury in the
commission of an offense. (§ 1203, subd.
(e)(2), (e)(3).) Here, under section
1203, subdivision (e)(2) and (e)(3), defendant was presumptively ineligible for
probation.
When
a defendant is presumptively ineligible for probation, the trial court is
required to use the criteria set forth in rule 4.413 to determine whether the
presumption is overcome and the interests
of justice would be served by a grant of probation. (People
v. Superior Court (Du) (1992) 5
Cal.App.4th 822, 830 (Du).) Rule 4.413(c) lists factors for the court to
consider in evaluating whether the statutory limitation on probation is
overcome: “The following facts may
indicate the existence of an unusual case in which probation may be granted if
otherwise appropriate: [¶] (1) .
. . [¶]
(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 defendant’s
culpability. [¶] A fact or circumstance not amounting to a
defense, but reducing the defendant’s 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.â€
Defendant
contends the trial court should have found this was an unusual case in which
the interests of justice would be served by a grant of probation because of his
mental condition, his age (47), his lack of a significant criminal record, his
remorse, and his family support. He also
maintains that the crimes were committed with great provocation and in
self-defense; and that the use of a weapon in this case was “less serious than
the ‘typical’ use of a weapon.â€
An
abuse of discretion standard of review applies.
(Du, supra, 5 Cal.App.4th at p. 831.) To establish abuse, the defendant must show
that, under the circumstances, the sentencing decision was arbitrary,
capricious, or “‘exceed[ed] the bounds of
reason . . . .’†(
683, superseded by statute on another ground as stated in People v. Douglas (1999) 20 Cal.4th 85, 92, fn. 6; see also
833, 837 [defendant has the burden “to clearly show that the sentencing
decision was irrational or arbitraryâ€].)
We
acknowledge that defendant appeared to have committed the crimes due to some
mental condition not amounting to a defense; that he could respond favorably to
mental health care treatment; and that he does not have a significant record of
prior criminal offenses.
name="_ftnref5" title="">[5] However, these factors are insufficient in
this case to overturn the trial court’s finding that this was not an unusual
case.
Defendant
violently attacked Sanchez and Fisher without any provocation by either one of
them. The record shows that although
Perez may have used words to enrage defendant into attacking Perez, defendant
did not attack Perez. Rather, he
attacked Sanchez and Fisher, who were merely trying to stop the
confrontation. Initially, after hearing
Perez and defendant arguing, Sanchez, in an attempt to deescalate the
confrontation, persuaded Perez to go upstairs.
Defendant, however, followed and attacked Sanchez with a knife when
Sanchez told him he might go to jail for what he was doing. Defendant stabbed Sanchez in the chest and
then in the arm during a struggle over the knife. Subsequently, after Sanchez retreated to his
bedroom, defendant turned his rage on Fisher and, as characterized by the trial
court, “bludgeoned†Fisher in the head with a baseball bat, intending to kill
him. The record supports a finding that
defendant did not commit the crimes under circumstances of great provocation by
the victims and that defendant’s use
of the weapons in committing the offenses were far more serious than the
“typical†use of a weapon. Moreover, the
victims were unarmed, and defendant had an opportunity to leave the house but
instead chose to attack the victims. As
such, defendant’s claim that he committed the crimes in self-defense is
unreasonable.
“[I]f
the statutory limitations on probation are to have any substantial scope and
effect, ‘unusual cases’ and ‘interests of justice’ must be narrowly construed
and, as rule [4.413] provides, limited to those matters in which the crime is
either atypical or the offender’s moral blameworthiness is reduced.†(People
v. Superior Court (Dorsey) (1996)
50 Cal.App.4th 1216, 1229 [Fourth Dist., Div. Two].)
The trial court here properly exercised its discretion in finding that
the presumption against probation eligibility should not be overridden.
Defendant’s
reliance on Du, supra, 5 Cal.App.4th 822, is misplaced. In Du,
the appellate court upheld an order granting probation to a defendant convicted
of voluntary manslaughter with a firearm because the defendant was a shopkeeper
who lawfully possessed the firearm for protection from ongoing crime by gang
members, she had no record of criminal violence, and she acted under
circumstances of great provocation. (
at pp. 825-829, 832-833.) In
teenage customer after she struck the defendant in the eye with her fist
twice. (Id. at pp. 826-827.)
The
facts here, viewed with deference to the trial court’s decision, do not warrant
the same conclusion and do not paint defendant in as favorable a light. Sanchez’s comment that defendant may go to
jail, defendant’s belief that Sanchez was a martial arts expert, and/or
defendant’s fear that his housemates were going to kill him does not render his
provocation or self-defense claims adequate or reasonable. In addition, although Perez may have
infuriated defendant, defendant cannot shift that purported provocation to the
victims. The factors here do not show
defendant’s case was “unusual†and, thus, the court’s ruling is well within its
discretion.
Moreover,
the procedural posture in Du is
different from this case and, therefore, of no assistance to defendant. In Du,
the trial court found that case to be “unusual†and granted probation. The People thereafter filed a writ of
mandate. Under the deferential abuse of
discretion standard, the reviewing court affirmed the trial court’s grant of
probation and denied the People’s writ.
(Du, supra, 5 Cal.App.4th at p. 837.)
We must apply that same deferential standard of review to an opposite
finding in this case. “The ‘abuse of
discretion’ standard is not met simply by arguing that a different ruling would
have been ‘better.’ Discretion is
‘abused’ only when, in its exercise, the trial court ‘exceeds the bounds of
reason, all of the circumstances before it being considered.’ [Citations.]â€
(Hernandez v. Superior Court
(1992) 9 Cal.App.4th 1183, 1190-1191.)
That limit has not been exceeded in this case. The trial court considered all relevant
factors, balanced them carefully, and came to a reasoned decision. No abuse of discretion has been demonstrated.
Here,
we cannot find that the denial of probation was an abuse of discretion. The trial court read and considered the
probation report, defendant’s sentencing memorandum, defendant’s medical
records, and heard from defendant and counsel during the sentencing hearing. It is clear that the court considered the merits
of defendant’s application for probation but denied probation due to
defendant’s danger to society and foreseeable likelihood he could be a danger
to others if he abandons his medication.
The court, however, sentenced defendant to the low term, contrary to the
prosecutor and probation officer’s recommendations, based on the mitigating
factors of defendant suffering from a mental condition, being “provoked to an
emotional state in his mind,†impulsively acting violently, and his
satisfactory performance on probation.
The trial court did not abuse its discretion in denying defendant
probation.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
RAMIREZ
P.
J.
We
concur:
HOLLENHORST
J.
MILLER
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] The 911 call was played for the jury at the
time of trial.
