P. v. Lara

Filed 10/2/06 P. v. Lara CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge.

Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellant Miguel Angel Lara of one count of assault with a deadly weapon, a knife (Pen. Code, § 245, subd. (a)(1)), and acquitted him of two additional assaults and brandishing a firearm replica. The court denied probation and imposed a mitigated prison sentence of two years. Lara appeals contending the court erred in denying probation. We disagree and will affirm.

FACTS AND PROCEDURAL HISTORY

Lara worked as a driver in victim Juan Santos’s trucking business. Santos had a friend, Natividad Callejas, who was unable to make payments on her Camry. Lara agreed to take the car and assume the payments. Santos made the $600 monthly car payments out of Lara’a paycheck. In early 2005, Lara lost his driver’s license so could no longer work for Santos.

Some time later, Callejas called Santos and reported that Lara had missed several car payments. Santos told her how to reach Lara and assisted her in surreptitiously repossessing the Camry. When Lara discovered the car was missing, he called Santos on June 19, 2005, argued with him, and threatened to come to the business and harm him. The next day, Lara drove into the truck yard yelling for Santos. Santos approached Lara. Lara charged him with a handgun. Lara placed Santos in a headlock and put the gun to his head, saying he would shoot. Santos told Lara to get rid of the gun; they would fight with fists. Lara placed the gun in his back waistband and took a knife from his pocket. He approached Santos making slashing movements as if he wanted to stab him in the “stomach.” Someone yelled they had called the police. Lara folded the knife and returned to his car. As he left, he drove toward Santos, causing Santos to dive under the truck trailer to avoid being hit.

One witness to the incident, a business associate and friend of Santos’s, corroborated Santos’s description of the three assaults with a gun, a knife and a vehicle. Another witness, who knew neither Lara nor Santos, testified that she saw the two men arguing and Lara swung at Santos. She did not see a gun or a knife.

Bakersfield Police Officer Williamson stopped Lara’s car a short distance from the truck yard. Williamson found a butterfly knife in the center console, another knife on the passenger’s seat, a holster for a pistol on the rear floor board, and parts of an Airsoft pistol. He did not find a firearm.

Defense

Lara denied assaulting Santos with a gun, a knife, or his car. He testified he came to the truck yard to speak with Santos regarding the Camry and because Santos had accused him of stealing diesel fuel the previous day during the telephone call. He also wanted copies of his check stubs so he could sue Callejas and get the Camry back. When he came to the truck yard he was upset. After he lost his job with Santos, he could not support his family and he and his wife had separated. He testified he carried a knife in his pocket that day as he usually did but he did not remove it from his pocket during the argument or try to stab Santos. He was gesturing with his hands as he argued with Santos. As he drove out of the truck yard, Santos came towards him. Lara drove around Santos to avoid hitting him. Finally, Lara testified he kept the knives the officer found in a tool bag in his car. He used them to repair the trucks he drove.

Lara’s mother testified that Santos told her Lara had screamed at him and Santos was afraid that Lara might hit him but he had not. Lara’s wife testified that Santos had approached her the previous day. He said Lara had been calling him and threatening his family. Santos asked her to tell Lara to stop.

After deliberating more than a day, the jury convicted Lara of assault with a knife but acquitted him of the charges of assault with a gun, assault with a vehicle, and brandishing.

At sentencing, defense counsel argued for probation or the low term. She noted that Lara was presumptively ineligible for probation, except in an unusual case, pursuant to Penal Code section 1203, subdivision (e)(2). She argued this was an unusual case in that Lara did not have a prior record, and the argument was with his ex-employer for specific reasons rather than with a random stranger. The prosecutor argued for the middle term.

In sentencing appellant to the low term, the court stated that because Lara was convicted of assault with a deadly weapon, he was eligible for probation only if this was an unusual case. The court then summarized the circumstances of the offense, and by inference found this was not an unusual case. The court also found, even if Lara was eligible for probation, he was unsuitable given the circumstances of the knife assault. The court found one factor in mitigation, Lara had no prior record. It found no factors in aggravation. The court imposed the low prison term of two years.

DISCUSSION

Sentencing Error

Lara contends the court’s denial of probation violated his due process rights because the court failed to exercise its sentencing discretion or abused that discretion. We disagree.

Penal Code section 1203, subdivision (e)(2) prohibits a grant of probation in cases where a deadly weapon is used “except in unusual cases where the interests of justice would best be served if the person is granted probation.” In determining whether the statutory limitation on probation has been overcome, the court is required to use the criteria set forth in California Rules of Court, rule 4.413.^[1] If the court finds the case to be an unusual one, it must then decide whether to grant probation, utilizing the statutory criteria set forth in rule 4.414. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 830.) The standard for reviewing a trial court’s finding as to whether a case is unusual is abuse of discretion. (People v. Superior Court, supra, 5 Cal.App.4th at p. 831.) The standard is the same for review of an order granting probation. Probation is an act of clemency that rests in 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. On appeal, our function is to determine whether the court’s order is arbitrary or capricious, or exceeds the bounds of reason under all of the circumstances. The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. (Ibid.) Lara asserts two challenges to the order denying probation. First, he contends the court was confused as to the criteria to be considered in determining whether his was an unusual case. The court misapplied the factors it should have considered in determining whether the probation prohibition applied. And, the court limited its consideration to the circumstances of the offense and did not consider Lara’s individual characteristics such as whether he had a criminal background or the likelihood that he would commit a crime in the future. Second, the court used “a mechanized, offense-based analysis“ to determine whether his case was unusual, which constituted a refusal to exercise discretion. We disagree.

The record does not support Lara’s assertion that the experienced trial court was confused or misapplied the rule 4.413 criteria in finding by implication that this was not an unusual case warranting probation. Only two of the listed factors showing an unusual case were relevant here. Criterion (c)(1)(i) required the court to consider whether Lara’s use of a deadly weapon to assault Santos was substantially less serious than the circumstances typically present in other crimes involving use of deadly weapons and whether Lara had recently committed a similar offense. Criterion (c)(2)(i) required the court to consider whether Lara committed the crime under circumstances of great provocation, coercion or duress not amounting to a defense and that Lara had no recent record of committing crimes of violence.^[2]

In sentencing Lara, the court stated,

“based upon the serious nature of the offense here I’m basing [my decision] on the way in which the knife was displayed and the slashing motion made, causing the [victim] to back up; the fact that the individuals knew each other. It seemed in this case there was plenty of opportunity for reflection on the nature of the conduct on defendant’s part, especially the way in which he entered and exited the truck yard where the instant offense occurred. And based on the totality of the circumstances, I feel that even if this gentleman was eligible for a grant of probation, I find him unsuitable by the nature of the circumstances of the present offense wherein the assault with the knife took place.”

The court’s statement, read in light of the pertinent rule 4.413 factors, demonstrates the court found that despite the fact that this was Lara’s first conviction, his use of a deadly weapon was not substantially less serious than other cases involving use of a deadly weapon because Lara had approached his victim in a menacing manner with the large knife forcing the victim to back up to avoid being hit. Further, Lara had a relationship with the victim and a number of opportunities to reflect on his conduct. Thus, Lara did not act under circumstances of great provocation, coercion or duress.

That the court did not expressly consider Lara’s lack of a prior record or expressly reject the remaining factors, does not support the charges of confusion and misapplication. The court is presumed to have considered all relevant criteria enumerated in the rules unless the record affirmatively demonstrates otherwise. (People v. Superior Court, supra, 5 Cal.App.4th at p. 836.) This record does not. And, the probation report, which the court read, considered and signed, noted Lara’s individual characteristics such as education, employment history, family status, financial status, and that he had no known prior criminal record. Lara next contends that the court ignored the statutory guidelines in determining whether his case was unusual and used instead “a mechanized, offense-based analysis” that constituted a refusal to exercise discretion. Not so; nothing the court said can reasonably be construed to indicate that the court has a “preconceived policy always to impose the maximum penalty for a certain crime.” The court did not say it would never grant probation to a defendant who displayed a knife with a slashing motion. It said it would not grant probation to Lara, because of the nature of his use of the deadly weapon during the assault and his failure, under the circumstances, to reflect on his conduct that was directed at an individual whom he knew. Lara cites cases in which the court displayed a preconceived policy to impose a certain sentence on every offender convicted of drug, or draft board, or other specified offenses. The trial court here did not. Nor did it “completely disregard“ the fact that Lara had no prior record. The court used that factor in mitigation to impose the lower term.

Simply put, Lara’s claims of sentencing error and abuse of discretion are contradicted by the record and unsupported by case law.

Ineffective Assistance of Counsel

Lara contends that if counsel failed to preserve his sentencing challenge by making a proper objection, he received ineffective assistance. As the court has considered his challenge on the merits, this issue is moot.

DISPOSITION

The judgment is affirmed.

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^* Before Levy, Acting P.J., Gomes, J., and Kane, J.

^[1] All statutory rule references are to the California Rules of Court.

^[2] The remaining rule 4.413 factors did not come into play. Lara had no prior felony convictions with which to contrast the current conviction (c)(1)(ii); there was no evidence the crime was committed because of a mental condition not amounting to a defense (c)(2)(ii); and 30-year-old Lara was neither particularly youthful nor aged (c)(2)(iii).