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People v. Alcantara

California Court of Appeals, Second District, Sixth Division
Apr 13, 2009
2d Crim B203826 (Cal. Ct. App. Apr. 13, 2009)

Opinion

NOT TO BE PUBLISHED

Superior Court of Los Angeles County No. BA323213 Judith L. Champagne, Judge

Meredith Fahn, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Noah P. Hill, Deputy Attorney General, for Plaintiff and Respondent.


YEGAN, Acting P.J.

Roberto Alcantara was sentenced to the low term of 16 months state prison after a jury convicted him of attempted second degree robbery. (Pen. Code, §§ 664/211.) He appeals, contending that the trial court erred in not granting probation and asserts that he was denied effective assistance of counsel. We affirm.

All statutory references are to the Penal Code unless otherwise stated.

Facts

On May 22, 2007, appellant and his brother crossed Cesar Chavez Avenue in Los Angeles and approached Daniel Ramos who was talking on a cell phone. Appellant ran up, blocked Ramos's path, and asked what gang he was from. Appellant said, "This is my barrio" and ordered Ramos to "[g]ive me everything you have."

When Ramos refused to hand over the cell phone, appellant signaled for his brother to run up behind Ramos. Appellant tried to grab Ramos, knocking a small Swiss Army knife off Ramos's belt.

Ramos fled and called the police. Responding to the 911 call, Los Angeles Police Officer David Carbajal detained appellant and the brother near the intersection of Cesar Chavez Avenue and Savana Street. Appellant said, "I jacked [street vernacular for robbery] somebody earlier, but he got away. He ran away from me."

Ramos identified appellant.

Later that day, Detective William Eagleson interviewed appellant. Waiving his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694], appellant admitted telling Ramos "that this was my hood, 'MC Force.' " Detective Eagleson testified that MC Force was a street gang and that the offense occurred in MC Force gang territory.

At trial, appellant denied that he tried to rob Ramos and denied telling Officer Carbajal that he had "jacked a guy." Appellant testified that he was not a gang member.

In rebuttal, Detective Marcelo Raffi said that he interviewed appellant the day after the offense. Appellant told the detective that he belonged to MC Force, that he went by the name "Menace," and that he had been a gang member for 18 months.

Probation

Appellant argues that the trial court erred in denying probation and failed to consider whether a prison sentence would subject appellant to deportation. It is well settled that probation is matter of clemency, not a right. (People v. Johnson (1993) 20 Cal.App.4th 106, 109; People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) Because a trial court possesses broad discretion to grant or deny probation, its decision will not be set aside unless it was arbitrary, capricious, or unreasonable. (People v. Warner (1978) 20 Cal.3d 678, 683.)

Appellant was a resident alien and had prior juvenile convictions for making criminal threats, taking a weapon to school, and possessing a controlled substance. The probation report also noted that appellant had another case pending for assault with a deadly weapon. (§ 245, subd. (a)(1).) The prosecutor stated that the other offense involved appellant and his brother, occurred the day before the Ramos offense, and "happened the same way as the crime happened here."

Denying probation, the trial court found that appellant's "criminal activities are of increasing seriousness.... A weapon on school grounds is a matter of grave concern today, just as making threats or trying to intimidate people. [¶] Listening to the facts of this case, it's clear that while [appellant] may be small in stature, he's not taking on victims one on one. He brings someone with him; in this case... his brother. [¶] For those reasons, his prior history as a juvenile and the circumstances of this case, I'm going to deny probation and impose the low term of 16 months.... "

On review, it is not our function to substitute our judgment for that of the trial court. (People v. Weaver (2007) 149 Cal.,App.4th 1301, 1311.) The reasons for denying probation are many and include appellant's juvenile record, the failed attempt at probation as a juvenile, the increasingly serious criminal conduct, appellant's gang membership and the invocation of a gang challenge to threaten the victim, that appellant was the principle perpetrator, the planning and sophistication of the offense, the threat to public safety, and lack of remorse as evidenced by appellant's trial testimony. (Cal. Rules of Ct., rule 4.414; People v. Olguin (2008) 45 Cal.4th 375, 379.)

Appellant's resident alien status was discussed in the probation report, as was his age (19 years old) and his ties to the community. Appellant stated that he had lived in the United States since age 8 and grew up in the area. Counsel argued that appellant was employed, "he's got a fiancé and a young baby," and that appellant comes from a family that works. The trial court considered all of those factors in denying probation.

Appellant argues that the low term sentence is a miscarriage of justice because it could result in his deportation. Appellant, however, cites no authority that a defendant's immigration status is a "stay out of prison" card after the defendant is convicted of a serious felony. (See e.g., People v. Lai (2006) 138 Cal.App.4th 1227, 1257 [trial court did not abuse discretion in denying probation even though defendant could be deported.) Whether the conviction will result in appellant's deportation is a decision to be made by a federal court, not a state court. (People v. Borja (2002) 95 Cal.App.4th 481, 486.)

A trial court may structure a grant of probation to avoid adverse immigration consequences (see Cal. Rules Ct., rule 4.414, subd. (b)(6)), but must also consider public safety, the nature of the offense, the interests of justice including punishment, and the defendant's prior performance on probation and willingness to comply with probation terms. (§ 1202.7.) Some courts have concluded that the likelihood of deportation may be considered in denying probation. (See e.g., People v. Cisneros (2000) 84 Cal.App.4th 352, 358; People v. Sanchez (1987) 190 Cal.App.3d 224, 236.) Assuming, arguendo, that appellant's alien status weighs in favor of probation and trumps his juvenile record and the serious nature of the current offense, the trial court had "wide discretion in weighing aggravating and mitigating factors. [Citation.] Indeed, a trial court may 'minimize or even entirely disregard mitigating factors without stating its reasons.' [Citation.]" (People v. Lai, supra, 138 Cal.App.4th at p. 1258.) No sentencing error occurred here.

Effective Assistance of Counsel

Appellants argues that he was denied effective assistance of counsel at sentencing. To prevail on the claim, appellant must show deficient representation and resulting prejudice, which is lacking here. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) "A defendant must prove prejudice that is a '"demonstrable reality," not simply speculation.' [Citations.]" (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)

Although the pretrial probation report mentioned appellant's alien status and recommended probation, it emphasized that the seriousness of the offense could not be overlooked and that appellant "should be ordered to serve a maximum amount of time in custody as a condition of probation." Appellant was advised that the maximum sentence was three years state prison and rejected a plea offer of probation and 180 days county jail.

After the jury convicted appellant, counsel argued for probation. Counsel urged the trial court to sentence appellant up to 364 days county jail so that appellant "would be able to resume a role as a father, as a productive citizen and family member when he gets out."

Appellant complains that counsel failed to argue that a prison sentence made it an aggravated felony and could result in deportation. The serious felony issue was argued with respect to custody credits after probation was denied. Appellant was sentenced to an 16 month low term, the most lenient sentence that could be imposed. It would have been futile for counsel to reargue that appellant's alien status required a different sentence. (See People v. Prieto (2003) 30 Cal.4th 226, 261 [counsel's decision to forgo implausible arguments or objections does not constitute deficient performance].) Simply put, appellant cannot show that he would have received a more favorable sentence but for counsel's alleged failings. (See e.g., People v. Mitcham (1992) 1 Cal.4th 1027, 1057-1058.)

The judgment is affirmed.

We concur: COFFEE, J. PERREN, J.


Summaries of

People v. Alcantara

California Court of Appeals, Second District, Sixth Division
Apr 13, 2009
2d Crim B203826 (Cal. Ct. App. Apr. 13, 2009)
Case details for

People v. Alcantara

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ROBERTO ALCANTARA, Defendant and…

Court:California Court of Appeals, Second District, Sixth Division

Date published: Apr 13, 2009

Citations

2d Crim B203826 (Cal. Ct. App. Apr. 13, 2009)