Opinion
B305582
03-01-2021
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO GUILLEN, Defendant and Appellant.
Robert L. Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA076788) APPEAL from a judgment of the Superior Court of Los Angeles County, Charles (Carlos) A. Chung, Judge. Affirmed. Robert L. Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Francisco Guillen of one count of assault with a deadly weapon of victim C.A. (Pen. Code, § 245, subd. (a)(1)) and found true the allegation that he personally inflicted great bodily injury (§ 12022.7, subd. (a)). The jury found Guillen not guilty of a second charge of assault with a deadly weapon of his girlfriend R.G. The court denied probation and sentenced Guillen to a total term of seven years in state prison. On appeal, Guillen contends that, due to the unusual circumstances of his case, the court abused its discretion by denying probation.
All further unspecified statutory references are to the Penal Code.
Finding no merit to this contention, we affirm.
FACTUAL BACKGROUND
Guillen met his girlfriend, R.G., in 2015. He moved in with R.G. in February 2016, originally intending to live in her garage until her adult son, C.A., moved out of the house. When C.A. did not move out, R.G. gave Guillen permission to build a "little room" in the backyard. The couple lived together in the makeshift structure, while R.G.'s son C.A. and minor son M. lived in the main house.
Guillen did not have a friendly relationship with R.G.'s sons. C.A., who paid rent to his mother, objected that Guillen did not pay rent. Guillen did not like R.G.'s sons and often said "ugly words" to her about them. In 2016, tensions rose between C.A. and Guillen and the police were called to intervene in an argument. During the episode, Guillen ended up on the ground. R.G. and C.A. testified Guillen tripped, but Guillen insisted C.A. pushed him. R.G. pleaded with Guillen to ask the police not to arrest C.A., and Guillen complied. According to R.G., Guillen "hated" C.A. from that point on. By the summer of 2019, the relationship between Guillen and R.G. had soured and R.G. asked Guillen to remove the hand-built structure and vacate the property by August.
A. Prosecution's Case
On July 17, 2019, while R.G. and her sons were getting ready to go to Los Angeles to visit a family member, C.A. and M. heard the sounds of a drill coming from the backyard. C.A., perplexed by what sounded like construction and not demolition, asked his mother what Guillen was doing. R.G. and her two sons went into the backyard. C.A. then calmly asked Guillen, "Didn't my mother tell you to destroy everything that was outside?" Guillen, who R.G. described as "angry," responded, "Look at what a whore." Guillen, then 73 years old, beckoned C.A. to come inside the structure, which C.A. had never entered before. C.A. followed Guillen into the structure and made his way to the kitchen area. The floor was uneven and had nails poking up through it, causing C.A. to look down as he carefully picked his way along. The "next thing [he] kn[e]w," C.A. felt what he thought was "a bat" striking him on his head. C.A. looked up to see Guillen swinging a machete overhead. C.A., who was approximately 6 feet 1 inch tall and weighed about 380 pounds, moved to the side to try to escape a blow, but Guillen, who was substantially smaller, caught C.A. with the machete a second time on the side of the head. C.A. grabbed the machete with his hand on the third swing, and punched Guillen twice in the face.
Meanwhile, R.G. had followed C.A. into the structure and R.G.'s son M. had called 911. By the time R.G. reached the two men in the kitchen, which could not be seen from the front door, C.A. was already bleeding from the head and was trying to take the machete from Guillen's hands. R.G. ran to the men and tried to help C.A. wrestle the machete away from Guillen, but was not successful because Guillen was too strong. Guillen did not release the machete when R.G. entered the fray, eventually causing a gash on her leg. When C.A. realized he was bleeding, he feared he might lose consciousness and exited the makeshift house, leaving R.G. and Guillen inside. R.G. stayed behind for a couple of minutes, then left the structure as well. Guillen remained inside the makeshift house until law enforcement officers arrived, then cooperated with officers in his arrest.
At the hospital, medical personnel used 14 staples to close the wound on C.A.'s head. C.A. also had surgery on his hand the next day and expects to recover only 90 to 95 percent use of that hand. R.G. received three to four stitches in her leg.
B. Defense's Case
Guillen testified at trial that, on the morning of the incident, he was working on a window when C.A. yelled at him from the outside that he must leave. If Guillen did not leave voluntarily, C.A. threatened that he and his friends would force Guillen to vacate the property. Guillen told C.A. that if C.A. was "coming back to beat [him] up again" (referring to the 2016 incident), "then come on in."
C.A. entered the structure with his hands raised to his forehead in a position to "hit" Guillen. Guillen told C.A. three times not to come near him or he would be forced to defend himself. C.A. responded, "What the fuck are you going to do, old man," then grabbed Guillen and punched him several times. Guillen grabbed a machete and hit C.A. once in the head, then C.A. threw Guillen face down on the ground, punching and kicking him. C.A. and R.G. attempted to take the machete from Guillen. C.A. grabbed the machete and tried to bend it back to break it, but then released it and ran out of the structure.
C. Sentencing
A jury convicted Guillen of count one of the information, assault of C.A. with a deadly weapon (§ 245, subd. (a)(1)) and found true the allegation that he personally inflicted great bodily injury (§ 12022.7, subd. (a)). The jury found Guillen not guilty of a second charge of assault of R.G. The prosecution requested that the court impose the high term of four years imprisonment for assault with a deadly weapon, with a three-year enhancement for great bodily injury. Counsel for Guillen, in turn, asked the court to grant probation or, alternatively, to impose the low term of two years in prison and strike the punishment for the enhancement.
After considering the sentencing memoranda submitted by both the prosecution and the defense and hearing argument by counsel, the court found probation was not "in the interest of justice": "[Guillen] has a minimal history. I recognize he is older but I also recognize there are aggravating circumstances. . . . This involved great violence. I believe it involved some sophistication. I believe he lured the victim into the building to attack him. The weapon was used. So for all those reasons I am going to not only deny probation, but select the high term of four years. I will impose the three-year enhancement under [section] 12022.7, [subdivision] (a) for a total of seven years [in] state prison."
DISCUSSION
Guillen acknowledges that, following his conviction of assault with a deadly weapon, he was presumptively ineligible for probation under section 1203, subdivision (e)(2), which states: "Except in unusual cases in which the interests of justice would best be served if the person is granted probation, probation shall not be granted to . . . [¶] . . . [¶] [a]ny person who used, or attempted to use, a deadly weapon upon a human being in connection with the perpetration of the crime of which that person has been convicted." Nonetheless, Guillen argues his is one of the "unusual cases" contemplated by the Legislature as deserving of probation. On review, Guillen's burden is to show abuse of discretion. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 957; see § 1203, subd. (e)(2).) As discussed below the trial court did not abuse its discretion.
California Rules of Court, rule 4.413 provides a nonexclusive list of relevant considerations in determining whether the case is "unusual," including cases where "[t]he 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," and "[t]he defendant is youthful or aged, and has no significant record of prior criminal offenses." (Cal. Rules of Court, rule 4.413(c)(2)(A) & (C).)
"[M]ere suitability for probation[, however,] does not overcome the presumptive bar. . . . [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 [California Rules of Court, rule 4.413(a)] 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.)
Moreover, under California Rules of Court, rule 4.413, the existence of any of the listed facts does not necessarily establish an unusual case; rather, those facts merely "may indicate the existence of an unusual case." (Cal. Rules of Court, rule 4.413(c), italics added.) The grant of probation "is permissive, not mandatory." (People v. Serrato (1988) 201 Cal.App.3d 761, 763 [referring to identical language in former rule 416(e)].)
Guillen asserts his case is "unusual" enough to overcome the presumption against probation for two reasons. First, there was substantial evidence that he "acted under provocation and duress in the form of an attack or threatened attack by" C.A. Specifically, Guillen argues the 2016 encounter was evidence C.A. was "predisposed" to anger and that the 2019 incident was actually provoked by C.A., who "already had his fists raised as if ready to strike" when he entered the makeshift house.
Here, as Guillen acknowledges, the jury convicted him of assaulting C.A. with a deadly weapon, "and in doing so, must necessarily have considered and then rejected any kind of self-defense theory." We note that the only evidence presented to the jury that C.A. provoked the machete attack was Guillen's own testimony. C.A., R.G., and M. all testified that, prior to the attack, C.A. was calm and entered Guillen's house only after receiving an invitation. C.A. could not see Guillen from the front door, and only discovered Guillen was armed when he reached the kitchen and Guillen struck him with the machete. The trier of fact heard and discredited Guillen's testimony that he wielded the machete against C.A. only after the younger man attacked and punched him first. The trial court's decision to deny probation based on the jury's implicit finding that Guillen's attack was unprovoked was neither irrational nor arbitrary.
Next, Guillen asserts that the court should have been swayed by his age—73 years old at the time of the attack— and his lack of any serious, extensive, or recent criminal conduct. Indeed, Guillen's only prior conviction was for a misdemeanor more than 20 years ago. Nonetheless, the trial court was not required to accord exclusive weight to these mitigating factors. (See People v. Zamora (1991) 230 Cal.App.3d 1627, 1637 [concluding a " 'trial court may minimize or even entirely disregard mitigating factors without stating its reasons' "].)
" ' "[O]nly in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation" ' " (People v. Urke (2011) 197 Cal.App.4th 766, 773), and we see no grounds to do so in this case.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. We concur:
BENDIX, J.
Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.