Opinion
F061378 Super. Ct. No. 10CM7012
10-05-2011
THE PEOPLE, Plaintiff and Respondent, v. ESTHER ANNIE GUTIERREZ, Defendant and Appellant.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert Jibson, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Wiseman, Acting P.J., Levy, J., and Kane, J.
APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Esther Annie Gutierrez pleaded no contest to assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and admitted to causing great bodily injury within the meaning of section 12022.7, subdivision (a). The trial court denied probation and sentenced Gutierrez to six years in prison.
Subsequent statutory references are to the Penal Code unless otherwise specified.
Gutierrez contends that the trial court abused its discretion when it denied probation. She says that, under the circumstances, the court was compelled to find her case "unusual" within the meaning of California Rules of Court, rule 4.413(c), and grant probation for that reason. We affirm.
All references to rules are to the California Rules of Court.
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PROCEDURAL AND FACTUAL HISTORIES
The following facts are derived from the probation officer's report. On January 22, 2010, at approximately 11:00 p.m., Valerie Molina was standing outside when she saw three women walking toward her. Believing one of the women to be a friend, Molina called out to the group, "What up bitches?" Gutierrez was one of the three women. She took offense to the apparent name calling and confronted Molina.
Molina tried to explain that she was not calling her a bitch in a bad way and that she and her friend normally greeted each other that way. Gutierrez argued with Molina and then struck her in the face with a wine glass, breaking the glass and causing several lacerations to Molina's face. The two women then had a physical altercation in which Gutierrez pulled Molina's shirt over her head. Molina has been left with permanent scarring to her face from the injuries caused by Gutierrez. She told the probation officer she had six distinct scars on her face and that they are visible even when covered with make-up because they are raised above the skin.
Gutierrez initially lied when questioned by police. She stated that she and Molina were trying to break up a fight between two men and Molina must have gotten hurt while doing so. Gutierrez repeated that account after being arrested, but then changed her story. She stated that she was walking with friends when she heard someone call them bitches. Molina then threw a beer at Gutierrez and punched her in the face. Gutierrez told a third story to the probation officer. She said Molina swung a fist at her, but hit her wine glass instead. Shards of glass must have flown back into Molina's face, causing the lacerations.
All but one of Gutierrez's prior offenses as shown in the probation officer's report were infractions. In 1997, she failed to provide a car registration (Veh. Code, § 4000, subd. (a)) or evidence of insurance (Veh. Code, § 16028, subd. (a)) five times. In 2007, 2008 and 2009, she received tickets for speeding. (Veh. Code, §§ 22349, 22350.) In 2009, she received a ticket for driving on the wrong side of the road. (Veh. Code, § 21650.) She committed an infraction violation of section 415, subdivision (1), fighting in public, in 2000. The only other prior was a misdemeanor, driving with a suspended or revoked license, in 2000. (Veh. Code, § 14601.1, subd. (a).)
On May 13, 2010, the district attorney filed an information charging Gutierrez in count 1 with assault with a deadly weapon (§ 245, subd. (a)(1)), in count 2 with aggravated mayhem (§ 205), and in count 3 with battery with serious bodily injury (§ 243, subd. (d)). The information further alleged that, as to all counts, Gutierrez personally inflicted great bodily injury upon Molina (§ 12022.7, subd. (a)).
On August 5, 2010, pursuant to a plea agreement, Gutierrez entered a plea of no contest to count 1 and admitted the great bodily injury enhancement as to that count. In exchange, counts 2 and 3 were to be dismissed. The parties stipulated to the following statement as the factual basis of the plea: "[I]f the matter went to trial the District Attorney would be able to call witnesses who would testify that on or about January 22, 2010, Miss Gutierrez assaulted Valerie Molina in ... Corcoran with a wine glass cutting her face and she caused some permanent scarring ...."
The sentencing hearing was held on September 13, 2010. Defense counsel acknowledged that, as was stated in the probation officer's report, the use of a deadly weapon and the infliction of great bodily injury made Gutierrez ineligible for probation unless there were unusual circumstances. (§ 1203, subd. (e)(2), (3).) Counsel argued that several factors made the case unusual: Gutierrez's relatively minor prior criminal history; the disruption a prison term would cause to her family (she was married, had a young daughter, and cared for her mother and her epileptic sister); Gutierrez's acceptance of responsibility as evidenced by her early plea; and Molina's provocative name-calling. Counsel conceded that Gutierrez's reaction to this provocation was "somewhat exaggerated." Counsel argued that Gutierrez was remorseful, relying on her statements to the probation officer that she was "sorry for what happened" and "didn't want it to happen." (Gutierrez made these statements after telling the probation officer the story about Molina punching the glass and being hit in the face by flying shards, but the probation officer nevertheless believed Gutierrez was remorseful.) Counsel said Gutierrez "[u]nderstands that in fact she did have the ability to simply have walked away in the first place." Finally, counsel pointed out that Gutierrez, who had a degree from a community college and was employed as an administrator at a group home, would have a greater ability to pay restitution if she were not in prison.
The trial court found no unusual circumstances to overcome the presumption of ineligibility for probation. It gave "little weight" to Gutierrez's three conflicting, exculpatory accounts of the confrontation, and "great weight" to the victim's account. It stated that Gutierrez's action was an "extremely exaggerated" response to a "misunderstanding." On these grounds, it denied probation.
The court went on to weigh aggravating and mitigating circumstances for the purpose of deciding whether to impose the lower, middle, or upper term. As aggravating circumstances, it found that the offense involved a "high degree of viciousness" and "violent ... conduct which indicates a serious danger to society." The "provocation was very little or insignificant ...." Gutierrez's record showed "scofflaw behavior." The section 415 violation was perhaps more serious, but the court gave "very little weight to that because it occurred ten years ago."
As a circumstance in mitigation, the court found that Gutierrez entered an early plea. It placed "great weight" on this. It also found that Gutierrez expressed remorse, but said, "I'm not sure whether the remorse was true remorse ...." It found her criminal history "minimal." Finally, it found that "[t]he effect of incarceration will be substantial due to the defendant's inexperience [in] the custodial environment."
The court found the circumstances in aggravation and in mitigation to be "roughly in balance." It imposed the middle term of three years for assault with a deadly weapon and added three more years for the great bodily injury enhancement. Counts 2 and 3 were dismissed.
DISCUSSION
Gutierrez admits that she was presumptively ineligible for probation based on section 1203, subdivision (e)(2) and (3). These provisions state:
"(e) Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons: [¶] ... [¶]
"(2) Any person who used, or attempted to use, a deadly weapon upon a human being in connection with the perpetration of the crime of which he or she has been convicted.
"(3) Any person who willfully inflicted great bodily injury or torture in the perpetration of the crime of which he or she has been convicted."
In determining whether a statutory limitation on probation has been overcome, the trial court is required to use the criteria set forth in rule 4.413(c), which provides in part:
"The following facts may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate:
"(1) Facts relating to basis for limitation on probation
"A fact or circumstance indicating that the basis for the statutory limitation on probation, although technically present, is not fully applicable to the case, including:
"(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 .... [¶] ... [¶]
"(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 ...."
Gutierrez contends that the trial court abused its discretion by finding that her case was not an unusual one. She says she committed the crime only after being provoked by the victim, did not intend to cause as much injury as she caused, had no serious and no felony priors, and had no priors except traffic infractions in the last 10 years. She also says that her status as a wife and mother means a prison term will have a more severe impact than it would otherwise. These factors, Gutierrez claims, compel a finding that her case is unusual under rule 4.413(c).
"'The standard for reviewing a trial court's finding that a case may or may not be unusual [under rule 4.413(c)] is abuse of discretion.' [Citation.]" (People v. Stuart (2007) 156 Cal.App.4th 165, 178.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.) We will not find an abuse of discretion unless the court's action exceeded the bounds of reason or contravened the uncontradicted evidence. (Conservatorship of Scharles (1991) 233 Cal.App.3d 1334, 1340.) Further, "if the statutory limitations on probation are to have any substantial scope and effect, 'unusual cases' and 'interests of justice' must be narrowly construed (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1229.)
The trial court's finding that this was not an unusual case within the meaning of section 1203 and rule 4.413 was supported by the evidence and was within the bounds of reason. The court could rationally find that there was no "great provocation" (rule 4.413(c)(2)(A)) in Molina's profane, misdirected greeting. It could rationally find that this provocation was small, that Gutierrez greatly overreacted even after being told that the comment was not meant for her, and that this violent overreaction showed that Gutierrez was a danger to society. The court also could rationally find that this offense was not "substantially less serious" (rule 4.413(c)(1)(A)) than other instances of assault with a deadly weapon resulting in great bodily injury. The trivial reason for the assault, combined with its grave consequences, supported the conclusion that the "basis for the statutory limitation on probation" was, in fact, "fully applicable to the case." (Rule 4.413(c)(1).)
Even if the trial court found that Molina's behavior amounted to great provocation, or that the offense was substantially less serious than the typical case in which probation is presumptively inappropriate, it would not be required to find the case to be unusual. "Under 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.' (Rule 4.413(c), italics added.) This language indicates the provision 'is permissive, not mandatory.' [Citation.] '[T]he trial court may but is not required to find the case unusual if the relevant criterion is met under each of the subdivisions.' [Citation.]" (People v. Stuart, supra, 156 Cal.App.4th at p. 178.) The court did not abuse its discretion in finding this not to be an unusual case.
Gutierrez next contends that this case is comparable to People v. Myers (1998) 61 Cal.App.4th 328, in which the victim poked Myers in the chest during an argument and Myers reacted by pushing the victim away. The victim fell and hit his head on the ground, sustaining severe injuries. The jury found Myers guilty of simple assault. (Id. at p. 330.) The Court of Appeal reversed the conviction on the ground that the trial court erroneously refused to instruct the jury that Myers had a right to defend himself against a battery, even a battery that involved only an offensive touching, as opposed to an imminent danger of bodily injury. (Id. at pp. 333-336.) Gutierrez cites this case in support of the general proposition that "[i]t is an unfortunate part of human nature, that groundless squabbles can lead to dire consequences, and that human beings can grossly over-react to insults and mis-perceived threats." She contends that, like the injury in Myers, the injury here was "a random happenstance" that was "all out of proportion to the intent of the defendant." She asserts that this shows her case was unusual within the meaning of rule 4.413.
This is not at all persuasive. Myers is about jury instructions required in cases of assault where the defendant claims to have been defending himself or herself against a battery. There was no trial in this case, so there can be no claim of erroneous jury instructions. The sentencing court was not required to believe either of the two versions of Gutierrez's story in which she was defending herself against an attack of some kind, so it was not obligated to take any notion of self-defense into account. Further, the possibility that the victim in Myers might have been more severely injured than Myers could have anticipated was not the reason for the reversal in that case. Myers simply has nothing to do with this case. Even if the holding in Myers did have something to do with random happenstances or unexpected consequences, it would not support Gutierrez's position. The court was not required to find that, if an assailant hits a victim in the face with a wine glass, the resulting lacerations are an unexpected random happenstance.
Gutierrez also claims she was prejudiced by discussion during the sentencing hearing of an expunged prior conviction for possession of marijuana with intent to sell, a conviction that was not established by the record. We find no reversible error.
First, contrary to Gutierrez's claim, there is no indication in the record that her trial counsel ever objected to the discussion of this alleged conviction. We ordinarily do not consider claims of error where an objection could have been, but was not, made in some appropriate form at trial. It is usually unfair to the trial court and the adverse party to take advantage of an error on appeal which could have been corrected during the trial. (People v. Saunders (1993) 5 Cal.4th 580, 590; Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1.) Gutierrez's failure to object forfeited this issue.
Second, the record does not support the view that this discussion influenced the court's decision. Defense counsel first mentioned this conviction, which is not listed in the probation report. Defense counsel said, "Prosecuting counsel is indicating that there may be a prior conviction for marijuana sales out of San Diego County in 1997 in which she was placed on probation and completed probation. And subsequently it was expunged my client tells me. And I would say even so, assuming that's true, and apparently it is, my client's verifying it, the—it's not a crime of violence." The prosecutor's only reference to this matter was the statement, without elaboration, that Gutierrez "had a prior felony conviction for [Health and Safety Code section] 11359." When explaining the reasons for its decisions on probation and sentencing, the court said nothing about this alleged conviction. Further, the court stated that it gave very little weight to the violation of section 415 for fighting because it occurred 10 years earlier. Since the alleged marijuana conviction occurred three years before the section 415 violation and was nonviolent, it is very unlikely that the court gave any weight to it either.
Finally, Gutierrez claims there is a constitutional dimension to her case. This claim is fatally vague and unsubstantiated. She mentions the Eighth and Fourteenth Amendments, and asserts that the result of the sentencing hearing was fundamentally unfair. She says it was fundamentally unfair because the alleged expunged marijuana conviction was mentioned, and she implies that the imposition of a six-year prison term instead of probation was an unconstitutionally disproportionate punishment. She cites no authority that would establish a constitutional violation in this case, however, and makes no sustained, coherent argument that would show how the denial of probation here violates any particular constitutional standard. Her constitutional claim therefore has not been adequately briefed and we will not address it further. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2.)
DISPOSITION
The judgment is affirmed.