P. v. Singh













Filed 2/21/13 P. v. Singh 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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

(Sutter)

----






>

THE PEOPLE, Plaintiff and Respondent, v. GURSHINDER BAINS SINGH, Defendant and Appellant.

C071052 (Super. Ct. No. CRF112020)

Defendant
Gurshinder Bains Singh entered a negotiated plea of no contest to href="http://www.mcmillanlaw.com/">resisting an officer by the use of force or
violence (Pen. Code, § 69; count 2) in exchange for dismissal of the
remaining counts. Count 1 (battery on an
officer; Pen. Code, § 243, subd. (c)(2)) was dismissed with a >Harvey waiver.href="#_ftn1" name="_ftnref1" title="">[1] The court denied probation and sentenced
defendant to county jail for the upper term of three years.

Defendant
appeals, contending the trial court abused its discretion in denying probation
and in imposing the upper term. We will
affirm.

FACTS

About 1:00 p.m. on September 15, 2011, href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Sutter
County Sheriff’s Detective Bryan Simpson, not in uniform but wearing a
badge and a gun on his right hip, investigated a report that a motorcycle was
parked within two feet of the front doors to the county building and was
considered to be a fire hazard. The
detective removed the key from the motorcycle’s ignition. While the detective spoke with dispatch
concerning the license plate, a man later identified as defendant approached,
wearing a motorcycle helmet. Defendant
confirmed that he owned the motorcycle.
After identifying himself, the detective twice asked defendant why he
had parked the motorcycle in that location, and defendant responded each time
that handicapped people parked there but admitted he was not handicapped. The motorcycle was not in a href="http://www.mcmillanlaw.com/">handicapped parking spot but in an
entryway.

The
detective did not see a handicapped placard or plate and asked for defendant’s
driver’s license, registration, and proof of insurance. At first defendant balked at the request,
stating that the detective was not a “ ‘cop,’ ” but when the detective pointed
to his badge and identified himself as with the sheriff’s department, defendant
provided his driver’s license. In
talking with defendant, the detective noticed he exhibited signs and symptoms
of being under the influence and had a strong odor of alcohol on his
breath. Defendant at first denied that
he had been drinking but when told he smelled of alcohol admitted he had “ ‘one
shot, maybe.’ ”

The
detective contacted dispatch for a uniformed officer. Defendant mumbled he wanted a “ ‘real cop’ ”
and the detective’s badge number. The
detective stated that he did not have a number, and defendant stepped toward
the detective to look at the badge.
Defendant then lunged toward the detective, grabbed his wrist, and
placed his arm around the officer’s neck.
The two struggled and they fell to the ground. The detective directed defendant to stop
resisting and stated he was under arrest.
Defendant refused and said, “ ‘Is that all you got, big man? You’re not going to win this one’ ” and “
‘You are not strong. You’re not going to
win.’ ” When the detective used finger
pressure below defendant’s eyes, defendant asked, “ ‘That’s it?’ ” About that time, other officers arrived and
defendant was handcuffed and arrested.

The
detective suffered a laceration on his hand and abrasions on his knee and
elbow. Defendant apologized for fighting
with the detective and admitted that he knew the detective was a law
enforcement officer. He admitted
drinking some wine earlier in the day.
Two preliminary alcohol screening tests revealed blood alcohol content
readings of .057 and .056 percent, and an Intoxilyzer test revealed
.04 percent.

The
probation officer reported that defendant was presumptively ineligible for
probation because of his two prior felony convictions. (Pen. Code, § 1203, subd. (e)(4).) The probation officer’s report listed seven
factors weighing against a grant of probation and only one in favor, that
defendant expressed a willingness to comply with probation terms and
conditions.href="#_ftn2" name="_ftnref2"
title="">[2]

In
recommending the upper term, the probation report listed five factors in
aggravation and none in mitigation.href="#_ftn3"
name="_ftnref3" title="">[3]

In a statement
in mitigation, defense counsel cited the immigration consequences to defendant
if he were sentenced to one or more years in confinement: defendant arrived in the United States in
1992 at 20 years of age; he did not become a citizen but was lawfully admitted
for permanent residence, and if his offense were deemed a deportable offense,
he would lose his lawful status and be deported. Acknowledging that defendant was ineligible
for probation except in an unusual case, defense counsel cited defendant’s
mental condition, which significantly reduced his culpability for his crime as
did his alcohol use, and asserted that defendant would respond favorably to
treatment for his mental disorders.

Defendant
claimed that he was taking Depakote and Risperdal. Defense counsel quoted a psychologist who,
evaluating defendant for a 90-day diagnostic study, stated that defendant has “
‘a history of serious mental disorder.’ ”
In 2002 the doctor diagnosed defendant as being bipolar and having a
personality disorder, and suggested psychiatric treatment at that time if
probation were granted. Defense counsel
asserted that defendant acknowledged wrongdoing at an early stage in the
proceedings; was willing and able to comply with probation conditions; had
family in the area and none in India,
where he may be deported; and was willing to waive his custody credits.

The court
determined that defendant’s case was not an unusual one, noting defendant “has
had a long history of being a law breaker . . . and plenty of opportunities
to learn from his mistakes and to learn how to control his anger and how to
control his drinking and has not done that as of yet.” The court denied probation, finding defendant
was not a good candidate and, determining that the circumstances in aggravation
outweighed those in mitigation, which included the mental health diagnosis,
chose the upper term. The court ordered
defendant to serve his time in county jail pursuant to Penal Code section 1170,
subdivision (h).

DISCUSSION

Citing the
virtual certainty of his deportation, his mental health issues, and the lack of
serious injuries to the victim, defendant contends the trial court abused its
discretion in denying probation and imposing the upper term, which defendant
claims had the additional consequence of infringing upon his href="http://www.fearnotlaw.com/">right to due process. Defendant attacks the probation officer’s
recommendation of the upper term, which was based on five circumstances in
aggravation and none in mitigation.
Assuming this court accepts his contention that the upper term is not
supported, defendant claims that probation with 360 days in jail would be
the same as the midterm of two years and that his case was an unusual one
because of his mental illness, which warranted a grant of probation. We reject defendant’s contention.

Because of
his two prior felony convictions, defendant was presumptively ineligible for
probation; a grant of probation is not permissible “[e]xcept in unusual cases
where the interests of justice would best be served if the person is granted
probation.” (Pen. Code, § 1203, subd.
(e)(4).) In determining whether a case
is “unusual,” the trial court uses the criteria listed in rule 4.413.href="#_ftn4" name="_ftnref4" title="">[4] Rule 4.413(c) is interpreted narrowly. (People
v. Stuart (2007) 156 Cal.App.4th 165, 178.)
Even assuming criteria in rule 4.413(c) exist, the trial court may,
but is not required to, find the case to be an unusual one. (Stuart,
at p. 178.) If the trial court finds the
case to be an unusual one, it decides whether to grant probation using the
criteria listed in rule 4.414. We apply
the abuse of discretion standard in reviewing both determinations. (People
v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831 (Du).)

“
‘Probation is an act of clemency which rests within the discretion of the trial
court, whose order granting or denying probation will not be disturbed on
appeal unless there has been an abuse of discretion’ ” (Du, supra, 5 Cal.App.4th
at p. 831), that is, whether a court’s order is arbitrary or capricious, or “
‘exceeds the bounds of reason, all of the circumstances being considered’ ” (>People v. Warner (1978) 20 Cal.3d 678,
683).

In
determining that defendant’s case was not an unusual one, the trial court began
by citing his lengthy criminal history.
Defendant discounts his prior criminal history as involving convictions
for “low level offenses” and his current offense as “fairly minor.” The trial court obviously disagreed, and its
determination is supported by the record.
Defendant had two prior felony convictions and 10 prior misdemeanor
convictions for conduct that involved attacking and injuring two custodial
officers, hitting his sister-in-law, threatening a counselor with injury to her
daughter, punching a store employee and threatening that he had a firearm, and
driving under the influence, among other unlawful behavior. Defendant committed the current resisting
with force or violence offense against the detective the day after defendant
was released from custody for terrorizing a neighboring businesswoman, and he
had been drinking.

Defendant’s
recent and significant record of criminal offenses, including similar crimes,
and his recent custody precluded a finding under rule 4.413(c)(1)(A) and (B),
and rule 4.413(c)(2)(A) and (C). The only
possible factor applicable here was under rule 4.413(c)(2)(B), that is,
defendant committed the crime “because of a mental condition,” and “there is a
high likelihood that the defendant would respond favorably to mental health
care and treatment.” Defendant never
stated that he responded favorably to mental health treatment, which had been
recommended in 2002. The record reflects
that he did not respond favorably to anger management, having threatened his
instructor. The trial court could
reasonably conclude that defendant would not cooperate with treatment and take
prescribed medication. The trial court
also noted defendant had had opportunities to learn from his mistakes and to
control his anger and drinking but had failed to do so. He had previously been on probation but had
eight violations and admitted that he had a problem with alcohol. Defendant has failed to demonstrate that the
trial court abused its discretion in determining defendant’s case was not an
unusual one and in denying probation.
Defendant complains denial of probation will result in his
deportation. The trial court considered
the immigration consequences (rule 4.414(b)(6)), presuming that defendant knew
the same but committed the offense in any event.

Defense
counsel did not object to the court’s imposition of the upper term, so the
claim is forfeited. (>People v. Scott (1994) 9 Cal.4th 331,
354-355.) In any event, numerous factors
supported the trial court’s imposition of the upper term, including the fact
that defendant had previously served a prison term. A single factor supports a sentencing
choice. (People v. Osband (1996) 13 Cal.4th 622, 730.) We conclude the trial court did not abuse its
discretion in imposing the upper term.

Having
found no abuse of discretion, it follows that defendant suffered no href="http://www.mcmillanlaw.com/">due process violation.

DISPOSITION

The
judgment is affirmed.



RAYE , P. J.



We concur:



BLEASE , J.



ROBIE , J.