Opinion
A114213
12-15-2006
THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. JOSE ROMAN GARCIA, Defendant and Appellant.
Jose Roman Garcia appeals a judgment of conviction, contending the trial court abused its discretion during sentencing when it denied a grant of probation. We find no abuse of discretion and affirm.
BACKGROUND
On February 7, 2006, Ramon Camacho stood outside a market in San Mateo, talking with his uncle. Garcia drove by in a vehicle and asked Camacho "what [gang] he claimed." He displayed a pistol, and then drove away after Camacho, in shock, offered no response. Camacho located a police officer and reported the incident. Officers soon found and arrested Garcia, who was wearing colors and other insignia associated with the Norteños, a criminal street gang. In searching Garcias vehicle, officers found a .32 caliber revolver under the front passenger seat. The revolver was not loaded and there was no ammunition found in the vehicle.
When asked if he was a member of any street gang, during his post-arrest interview, Garcia replied that he was "[d]own with Norte." He further explained that he had confronted Camacho because he thought Camacho was a member of the Sureños, a rival criminal street gang.
The factual summary is based on testimony elicited at the preliminary hearing.
On March 13, 2006, the prosecution filed an information consisting of three counts. Count one charged Garcia with a felony violation of Penal Code section 12025, subdivision (b)(3). That is, he had carried a concealed weapon as an active participant in a criminal street gang. Count one included a sentence enhancement, alleging a violation of section 186.22, subdivision (b)(1)—the commission of a felony for the benefit of a criminal street gang. It also included an allegation that the underlying offense was a "serious felony" under section 1192.7, subdivision (c)(28).
Further statutory references are to the Penal Code. References to rules are to the California Rules of Court.
After negotiating a plea, Garcia agreed to a bench trial on the basis of the preliminary hearing transcript. On April 27, 2006, the trial court found Garcia guilty of the offense charged in count one, and found true the two additional allegations included in that count. The court dismissed the remaining counts.
The report prepared by the probation department for the sentencing hearing recommended that the court deny probation. (See § 1203, subd. (b).) With respect to the criteria affecting probation set out in rule 4.414, the report stated that Garcia was not suitable for probation because "his prior record indicate[d] a pattern of regular or increasingly serious criminal conduct." (Rule 4.414(b)(1).) He had, in addition, used a weapon in the course of committing the present offense. (Rule 4.414(a)(2).) This, together with his "gang-related history and the gang conduct involved in the present offense," raised a likelihood that he would be a danger to others if not imprisoned. (Rule 4.414(b)(8).)
At the sentencing hearing on June 15, 2006, the court stated at the outset that it had read and considered the probation departments report, and was "mindful of its recommendation." The parties briefly discussed the report and argued the appropriateness of probation. In denying probation, the trial court commented that Garcia had "used a gun . . . [a]nd I dont care what the circumstances are, you use a gun, I dont care how old you are, under the circumstances, that is not a probationary case." The court then imposed a lower-term sentence of 16 months in state prison.
This appeal followed. (§ 1237, subd. (a).)
DISCUSSION
Garcia argues that the court abused its discretion in denying his request for probation. He claims that the courts comments, quoted above, show that it did not consider the applicable criteria affecting probation, but instead acted arbitrarily by declaring, in effect, that any case involving a gun was "not a probationary case." This, he asserts, is contrary to the statutory provisions governing probation, which do not preclude the consideration of a grant of probation simply because "a gun was involved." He suggests also that the courts focus on his use of a weapon was an improper "dual[] use[]" of that fact, because "the offense itself was for having a concealed weapon." By refusing to consider the other criteria set out in rule 4.414, the court, in Garcias view, failed to appreciate that there were facts mitigating his use of a weapon—that is, the revolver was not loaded and he did not aim it toward Camacho, that there were no other "negative facts," and that he "likely would be able to comply with [the] terms of probation."
With respect to this point, Garcia notes that the probation departments report did not specify his prior offenses, and insists that its references to his "prior record" and his "gang-related history" were undocumented and speculative. We observe that the report indicated that Garcia had no criminal history as an adult. However, it also referred the trial courts attention to an attached, confidential memorandum for further information concerning Garcias prior juvenile history. We decline to deem the reports statements concerning Garcias prior history to be undocumented or speculative merely because this memorandum was not made part of the record on appeal. In any event, Garcias trial counsel had the opportunity to contest the accuracy of the report at the sentencing hearing, and did so.
Criminal sentencing is left to the sound discretion of the trial court. We review a decision denying a grant of probation solely for an abuse of discretion, and will not reverse such a decision unless it is arbitrary, capricious, or exceeds the bounds of reason. (People v. Warner (1978) 20 Cal.3d 678, 683; People v. Edwards (1976) 18 Cal.3d 796, 807.) A defendant has the burden of demonstrating clearly that the denial was irrational or arbitrary. (People v. Cazares (1987) 190 Cal.App.3d 833, 837.)
The criteria for determining whether probation is appropriate include "[w]hether the defendant . . . used a weapon." (Rule 4.414(a)(2).) That fact was noted in the probation report, and the trial court was entitled to rely on it as a basis for denying probation. The "use" of a weapon may include displaying or brandishing the weapon as well as actually discharging it. (People v. Arzate (2003) 114 Cal.App.4th 390, 400.) On the other hand, the "use" of a weapon is not an element of the offense of carrying a concealed weapon. (Ibid.) Thus, the court did not improperly rely on an element of the crime as a basis for denying probation. (Cf. People v. Parrott (1986) 179 Cal.App.3d 1119, 1124 (Parrott).)
Further, we reject the notion that the court failed to consider other relevant criteria either supporting or opposing probation. Garcias trial counsel argued the factors in favor of granting probation at the sentencing hearing. The court heard his argument, and before making its determination stated for the record that it had read and considered the probation departments report. All the appropriate factors were therefore before the trial court, and we presume that it properly evaluated them. (Parrott, supra, 179 Cal.App.3d at p. 1125.) The probation report included factors that the court could also use in denying probation. The courts comments regarding Garcias use of a weapon do not, in our view, compel a contrary conclusion.
We conclude the trial court did not act arbitrarily, and committed no abuse of discretion in denying probation.
DISPOSITION
The judgment is affirmed.
We concur:
Swager, J.
Margulies, J.