Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, David J. Danielsen, Judge, Super. Ct. No. SCD 194062
IRION, J.
Under a plea agreement, Demetris Wimberely pled guilty to assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)) and admitted he personally used a firearm within the meaning of section 12022.5, subdivision (a). The trial court sentenced Wimberely to the middle term of six years on the assault offense and to the middle term of four years on the firearm allegation for a total of 10 years in prison; this was in accord with the plea bargain, which called for maximum sentence lid of 10 years.
All statutory references are to the Penal Code unless otherwise specified.
Wimberely appeals, contending the court abused its discretion by denying probation. Alternatively, Wimberely claims the court should have imposed the lower terms for the assault and firearm allegation because the factors in mitigation outweighed the factors in aggravation.
FACTS
On the evening of September 30, 2005, Wimberely approached Lorenzo Davis's parked vehicle and fired about four shots from a semiautomatic handgun at the vehicle as Davis drove away. Two of Davis's children were in the back seats of the vehicle. A stray bullet was recovered from the bedroom of a nearby residence. A woman was asleep in the bedroom at the time. No one was injured as a result of the shooting.
Wimberely immediately went to a relative's house. A San Diego police officer, who was a friend of the family, saw Wimberely walking in an excited manner back and forth on the sidewalk in front of the house. The officer later spoke with Wimberely at the request of relatives. Wimberely, who was visibly upset and crying, admitted shooting at Davis. Wimberely said he armed himself for " 'self defense' " reasons; he had received threats after an incident in which one of his relatives had shot Davis. Wimberely fired at Davis because he thought Davis had pointed a gun at him. However, there was no evidence that Davis had a gun at the scene. The officer arrested Wimberely, who was then 17 years old.
The District Attorney filed the accusatory pleading in superior court pursuant to Welfare and Institutions Code section 707, subdivision (d)(2)(B).
On April 11, 2006, Wimberely pled guilty to assault with a semiautomatic firearm and admitted he personally used a firearm. As part of the plea bargain, the District Attorney's Office agreed to dismiss charges of attempted murder (§§ 187/664), shooting at an occupied vehicle (§ 246), and attempting to dissuade a witness from testifying (§ 136.1, subd. (a)(2)). The prosecution also agreed to (1) the dismissal of allegations that the offenses had been committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and (2) a maximum sentence lid of 10 years.
While incarcerated at Juvenile Hall, Wimberley received his high school diploma; he was on the honor roll every month. He also was named Student of the Month in February 2006, received an achievement award, and was a member of the Book Club. Additionally, Wimberely was selected to be a peer counselor.
At the December 12 sentencing hearing, the court found this was an "unusual case," which overcame the statutory presumption that he was ineligible for probation. The court cited Wimberely's youth and lack of a criminal record for its "unusual case" ruling. The court also noted that Wimberely was "a young man with some tremendous potential," and had a great deal of support from friends and family.
However, the court denied probation because of the seriousness of the crime. The court acknowledged that Wimberley had positive factors: he had no prior criminal record; he was willing and able to comply with the terms of probation; and he was remorseful. But the court found the circumstances of the crime outweighed Wimberely's positive factors. The court observed:
"Now, weighed against [Wimberely's positive factors are] the circumstances of this crime, and the nature and circumstances of this crime are extremely serious. And they are certainly as serious as any assault with a firearm, and although there [are] some facts that would be proffered by some as an explanation for why this happened, this crime is, frankly, more serious than other instances of the same crime because, not only did the fact that he acted in a fashion that was directed at someone who was unarmed, who was in the process of fleeing, but it was done in such a fashion that . . . innocent children [were put at risk.] People that he could have never possibly met before in his life in the neighborhood were all placed at risk by his repeated and dangerous activity."
The court added that "despite the fact that this young man may otherwise well be a probation-worthy candidate," the nature of the crime and the way it was committed precluded probation.
The court sentenced Wimberley to six years in prison for the assault with a semiautomatic firearm and a consecutive four-year term for personally using a firearm.
DISCUSSION
I. Denial of Probation
Wimberely contends the court abused its discretion by denying him probation. The contention is without merit.
"Probation is an act of leniency, not a matter of right." (People v. Walmsley (1985) 168 Cal.App.3d 636, 638.) The sentencing court has broad discretion to determine whether a defendant meets the statutory requirements for probation. (People v. Warner (1978) 20 Cal.3d 678, 683.) We review the court's denial of probation for abuse of discretion. (People v. Downey (2000) 82 Cal.App.4th 899, 909.) Under this standard, "[i]n the absence of a clear showing that [the] sentence choice was arbitrary or irrational, we must presume the sentencing court acted properly." (People v. Hubbell (1980) 108 Cal.App.3d 253, 260.) A decision that is "arbitrary or capricious, or ' "exceeds the bounds of reason," ' " constitutes an abuse of discretion. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) The party challenging the sentence has the burden of showing an abuse of discretion. (Ibid.)
Because Wimberely used a deadly weapon in connection with the assault, he was presumptively ineligible for probation. (§ 1203, subd. (e)(2).) This means that Wimberely could be granted probation only if the court found it an "unusual case[] where the interests of justice would best be served" by granting Wimberely probation. (§ 1203, subd. (e).) To determine if a case in which the defendant is presumptively ineligible for probation is an " 'unusual case[ ] where the interests of justice would best be served,' " the court should apply criteria set forth in California Rules of Court, rule 4.413(b). (Rule 4.413(c).)
All rule references are to the California Rules of Court.
There are two sets of criteria to determine whether a case is an "unusual case": those facts or circumstances relating to the basis for the presumption of ineligibility; and those facts or circumstances limiting the defendant's culpability. (Rule 4.413 (c).) The first category of criteria applies when the instant crime is less serious than other cases in which the same probation limitation is present, and the defendant has no recent record of committing similar crimes or crimes of violence. (Rule 4.413 (c)(1)(A).) The second category of criteria applies when (1) the defendant participated in the crime under great provocation, coercion or duress and has no record of committing crimes of violence, (2) the crime was committed because of a mental condition and there is a high likelihood the defendant would respond favorably to mental health care and treatment as a condition of probation, or (3) the defendant is youthful and has no significant record of prior criminal offenses. (Rule 4.413 (c)(2)(A)-(C).)
If the court finds the case is such an "unusual case," the presumption of ineligibility is overcome and the court must then decide whether to grant probation using the criteria in rule 4.414, which are the standard criteria affecting the decision to grant or deny probation. (Rule 4.413 (b); see also People v. Superior Court (Du), supra, 5 Cal.App.4th at p. 830.)
The court's finding this was an "unusual case" is supported under rule 4.413(c)(2)(C). Wimberely was 17 and had no prior criminal record. The "unusual case" finding rebutted the presumption of probation ineligibility and allowed the court to consider a grant of probation for Wimbereley. The record makes it abundantly clear that the court fully considered whether to grant or deny probation — both the circumstances in favor of probation and those against probation — and carefully balanced the relevant factors. (See rule 4.414.) The court's conclusion that the seriousness of the crime outweighed Wimberley's positive factors was neither capricious, arbitrary or unreasonable. By firing the semiautomatic firearm, Wimberely endangered Davis, his two children, any person(s) who was in the immediate vicinity, and even a woman in a nearby building. The fact that no one was injured was extremely fortuitous. The court properly exercised its discretion in denying probation.
Wimberely argues the circumstances in favor of probation outnumbered the circumstances against probation. Regardless of whether this is accurate, the "weighing of factors involves a flexible quantitative and qualitative analysis, not a rigid numerical approach." (People v. Thornton (1985) 167 Cal.App.3d 72, 77.)
II. Imposition of Middle Term
Wimberely also contends the trial court abused its discretion in imposing the middle rather than the lower term. The contention is without merit.
"The midterm is statutorily presumed to be the appropriate term unless there are circumstances in aggravation or mitigation of the crime." (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582-1583, citing former § 1170, subd. (b) & former rule 420(a), now rule 4.420(a).)
Effective March 30, 2007, (stats. 2007, ch. 3, §§ 2 & 7) the legislature amended section 1170, subdivision (b) so that the trial court now has discretion to determine which term to impose without any presumption that the middle term is the appropriate term. (§ 1170, subd. (b).) Rule 4.420 was amended effective May 23, 2007, to reflect the legislative amendment. (Rule 4.420(a) and (b).) Our analysis is premised on the former versions of the statute and rule.
When selecting a term of imprisonment, "the middle term shall be selected unless imposition of the upper or lower term is justified by circumstances in aggravation or mitigation." (Former rule 4.420(a).) Selection of the upper or the lower term is justified only if, after considering all the relevant facts, the trial court determines that the circumstances in aggravation or mitigation outweigh the countervailing circumstances. (Former rule 4.420(b).) The sentencing court's discretion includes the authority to minimize or even disregard mitigating factors. (People v. Avalos, supra, 47 Cal.App.4th at p. 1583.) Although the trial court must state its reasons for imposing a prison term other than the middle statutory term (rule 4.406(b)(4)), the court need not state its reasons for imposing the middle term or for minimizing or disregarding mitigating factors. (People v. Avalos, supra, at p. 1583.)
Generally, sentencing determinations are within the trial court's broad discretion and must be affirmed unless there is a clear showing the sentencing choice was irrational, arbitrary or capricious. (People v. Lamb (1988) 206 Cal.App.3d 397, 401.) The sentencing court has wide discretion in weighing aggravating and mitigating factors and balancing them against each other in qualitative as well as quantitative terms. (Ibid.)
The sentencing judge is deemed to have considered the relevant factors "unless the record affirmatively reflects otherwise." (Rule 4.409; People v. Holguin (1989) 213 Cal.App.3d 1308, 1317-1318.) Here, the record does not reflect otherwise.
Before sentencing Wimberely, the court considered the probation report, which listed Wimberely's lack of a prior record as a factor in mitigation and the defense's statement in mitigation, which pointed out that Wimberely voluntarily acknowledged wrongdoing before arrest. (See rule 4.423 (b)(1) & (3).) Further, the court expressly stated it considered Wimberely's youth, intelligence and education, community support, and explanation that he acted out of fear as factors in mitigation. Nothing in the record indicates the trial court neglected to consider any mitigating factors, or acted in an irrational, arbitrary or capricious manner. There was no abuse of discretion; the court properly imposed the middle term.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDONALD, Acting P. J., O'ROURKE, J.