Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF013464. Judith C. Clark, Judge.
Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
This is a second appeal by defendant and appellant Anthony Barrera. Defendant was convicted of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) (count 3); attempted voluntary manslaughter (Pen. Code, § 192, subd. (a)) (count 4), as a lesser included offense of attempted premeditated murder; assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) (count 5); being an active participant in a criminal street gang (Pen. Code, § 186.22, subd. (a)) (count 6); possession of a sharpened instrument in prison (Pen. Code, § 4502, subd. (a)) (count 7); and possession of drug paraphernalia (Health & Saf. Code, § 11364) (count 8). The jury also found true that in the commission of counts 4 and 5 defendant had personally used a knife (Pen. Code, §§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)); that defendant had caused great bodily injury (Pen. Code, §§ 12022.7, subd. (a), 1192.7, subd. (c)(8)); and that defendant had committed the offenses for the benefit of and in association with a criminal street gang (Pen. Code, § 186.22, subd. (b)). As to counts 4, 5, and 6, the jury also found true that the offenses were committed while defendant was released on bail (Pen. Code, § 12022.1). As a result, defendant was sentenced to a total term of 20 years in state prison. (People v. Barrera (Feb. 27, 2009, E043950 [nonpub. opn.] (Barrera I).)
In his first appeal, defendant claimed that there was insufficient evidence to support the substantive gang count and the gang enhancements (Pen. Code, § 186.22, subds. (a) & (b)) and that the trial court had erred in failing to recognize it had discretion to strike the enhancements in the interest of justice. (Barrera I, supra.) We agreed with the parties and remanded the matter to allow the court to exercise its sentencing discretion but rejected defendant’s remaining contention.
Defendant has filed a petition for writ of habeas corpus, which we ordered considered, but not consolidated, with this appeal. We will resolve that petition by separate order.
On remand, the trial court sentenced defendant to a total term of 15 years 8 months to state prison. Defendant again appeals, claiming the trial court abused its discretion when it declined to strike the gang enhancements. We reject this contention and affirm the judgment.
I
The factual background is taken from this court’s unpublished opinion in defendant’s prior appeal. (Barrera I, supra.)
On August 16, 2005, defendant was apprehended by police near a stolen truck. There was visible damage to the truck’s steering wheel and graffiti on the dash, which read “SJ” and “First Street.” Defendant had the registration papers for the truck in his wallet, but the truck did not belong to him. Methamphetamine and a methamphetamine pipe were found in defendant’s pant’s pockets. Defendant was released on bail on August 19, 2005.
Martin Cortez had lived in a house on Irwin Street in San Jacinto in the summer of 2005. He was familiar with the First Street gang, which was also known as the San Ja street gang or the Calle Primera street gang; he had associated with some members of the gang, but he was not a member himself. He had known defendant, who lived about three houses away, for most of his life and had often seen defendant associate with members of the San Ja street gang.
In September 2005, Cortez and defendant had a disagreement at a party because defendant was there with “Mugzy, ” a member of San Ja and who was rumored to a carry a gun. Cortez was upset that someone with a gun was around his pregnant girlfriend.
Several days later, on September 14, 2005, in front of Cortez’s house, Cortez confronted defendant about this incident as defendant was walking by. Cortez warned him that if he put Cortez’s life in danger again, or endangered Cortez’s baby, Cortez would kill him. Defendant indicated that things were “cool, ” and they shook hands.
Cortez then told defendant to watch out for Abraham Campos, Cortez’s cousin who lived nearby, who was upset with defendant and wanted to beat him up. As they spoke, Campos drove up to Cortez’s house. Campos walked up to defendant, and they exchanged some words. Campos challenged defendant to a fight, but defendant ran down the street, yelling for his friend “Creeper.” Campos and Cortez followed defendant, but they could not find him; Campos then drove away, but Cortez remained there.
Shortly thereafter defendant came out of an apartment building spewing words about First Street and San Ja and challenging Cortez to fight, one on one. Cortez approached defendant, who pulled out a knife and warned Cortez not to come any closer. With the knife in his fist, defendant yelled, “San Ja” or “San Jacinto, ” claiming gang territory as he approached Cortez. Another San Ja gang member, Cortez’s cousin Pepe, approached defendant and told him to put the knife away; defendant did for a moment. A Ford Explorer and another car then arrived. Ten or 11 people exited the vehicles, including Creeper and some of defendant's family members. Creeper yelled, “First Street.”
Defendant pointed out Cortez to Creeper and the others. Creeper ran up to Cortez and punched him several times. Cortez punched back and then ran around his sister's car with Creeper following him. Defendant was behind the car holding something in his fist. As Cortez was fighting Creeper, defendant stabbed Cortez in the back and then ran off. The others got back into the Explorer and took off.
Cortez was bleeding and having a hard time breathing and was taken to the hospital. Cortez was hospitalized for three and a half days and was treated for a collapsed lung from the stabbing.
When he was interviewed by a sheriff's deputy at the hospital, Cortez said it was defendant who had stabbed him. Cortez also informed the deputy that defendant had yelled “San Ja” or “First Street” and made other verbal gang challenges just before the fight happened.
In a taped interview, defendant admitted he had stabbed Cortez four to six times, claiming he was afraid of what Cortez might have done to him.
In October 2005, Cortez reported that someone other than defendant had threatened him with harm if he testified about the stabbing; he was told to say it was a stranger.
A gang expert described the San Ja or First Street gang, consisting of about 175 members located in San Jacinto, as a turf-oriented Hispanic street gang. In general, he testified, street gangs claim a particular area; the greater the territory claimed, the greater the power attributed to the gang, which in turn facilitates control over its ability to sell drugs or commit other crimes and generally induces “respect” or fear in the community and with other gangs. He also explained how gangs use hand signs and graffiti to claim an area for the gang and to challenge rival gang members entering the area. In short, the gang expert’s testimony established all the elements of Penal Code section 186.22, subdivision (b). Based on a combination of factors, the gang expert opined that defendant was an active member of the First Street gang and that the stabbing was committed in association with and for the benefit of the First Street gang.
II
DISCUSSION
Defendant contends the trial court erred in declining to dismiss the gang enhancements because it misunderstood the nature and scope of its discretion. We disagree.
Penal Code section 186.22, subdivision (g) provides: “Notwithstanding any other law, the court may strike the additional punishment for the enhancements provided in this section... in an unusual case where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition.” (Italics added.)
At the resentencing hearing, defendant argued his case was unusual, thereby warranting the dismissal of the gang enhancement, because of the mitigating factors of his youth; the circumstances of the crime; his belief that he was in imminent danger of great bodily harm; provocation; his ADHD, which made him act impulsively; his show of remorse; and his lack of a significant criminal record.
The trial court denied defendant’s request to dismiss the gang enhancement, noting in part, “There’s no question in this court’s mind that this was a gang-related offense.... This was a gang-related stabbing. This is not an incidental stabbing. It’s a significant stabbing that resulted in significant injury to the victim with regards to this matter. [¶] I do note, however, that there was not necessarily provocation for the stabbing, but the whole incident was provoked by the victim’s initial instigation of the whole conduct. And it was by the victim’s action that the matter was stirred up and the issue was created[;] however, as I recall the facts, [the defendant]... [ran] into an apartment, yelling for help, getting additional members of the gang to assist him, and then the fight was on, wherein [defendant]... came around behind the victim, around the car, ended up stabbing him in the back, puncturing his lung, and we have a significant injury.... [¶]... [¶] This court did say at the time of the original sentence that I thought [defendant] was getting too much time. I do think it’s difficult when you have a sentencing scheme that gives the court only one term and under it’s a term as high as ten years for a gang allegation under the circumstances. It does not give the court discretion to take into consideration the fact that [defendant] is 18 years old. He hadn’t been to prison before. In fact, I don’t believe he’d even served any substantial custody before other than what had been done through the juvenile court and that... there were unusual circumstances. And I use that term not in the technical legal sense but just as a descriptive factor that -- regarding the involvement of the victims and the precipitating actions that were taken -- and I didn’t have any room to move. [¶] I do think that the law clearly says and this court does believe as well that[, ] recognizing that I do have discretion, when... a crime is committed for the benefit of the criminal street gang, it is distinguishable from a crime that does not involve gang overtones and the consequences are different. They are... that way because society has an interest in deterring people’s involvement in criminal street gangs and recognizes the incredible violence and nature that criminal street gang activity poses to the community. And that’s why the [L]egislature has enacted those sentencing statutes.”
By selecting statements made by the trial court, defendant contends the trial court abused its discretion. First, he argues that the court misunderstood it could consider his youth as a mitigating factor. Second, he asserts that the court’s decision was not based on individualized factors and over emphasized the deterrence factor. He also claims that the court refused to strike the gang enhancement simply because it was a gang case or gang related. Finally, he insists that because the court repeatedly stated the 10-year gang term was longer than defendant deserved, the court should have dismissed the gang enhancement.
A trial court has discretion to strike a gang enhancement “where the interests of justice would best be served.” (§ 186.22, subd. (g); see also People v. Sinclair (2008) 166 Cal.App.4th 848, 855.) An abuse of discretion occurs where the court was not aware, or misunderstood the scope, of its discretion(People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8), or “its decision is so irrational and arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377, 378; see also People v. Marquez (1983) 143 Cal.App.3d 797, 803.)
“In striking [a gang] enhancement in ‘“furtherance of justice’” the court ‘may look to general principles, outside the framework of the sentencing scheme, or be guided, instead, by the particulars of the scheme itself, informed as well by “generally applicable sentencing principles relating to matters such as the defendant’s background, character, and prospects, ” including the factors found in California Rules of Court, rule 410 [now rule 4.410] et seq.’ [Citations.]” (People v. Torres (2008) 163 Cal.App.4th 1420, 1433, fn. 6.)
We note that in enacting the California Street Terrorism Enforcement and Prevention (STEP) Act (§ 186.20 et seq.), the Legislature expressly found that “the State of California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods.” (Pen. Code, § 186.21.) Finding also that these criminal street gang activities “present a clear and present danger to public order and safety and are not constitutionally protected, ” the Legislature declared its intent “to seek the eradication of criminal activity by street gangs by focusing upon patterns of criminal gang activity and upon the organized nature of street gangs, which together, are the chief source of terror created by street gangs.” (Ibid.)
Here, the trial court clearly understood it had discretion to strike the enhancement but simply declined to do so. The relevant considerations supported the trial court’s ruling, and there is nothing in the record to show that the court declined to exercise its discretion on improper reasons or that it failed to consider and balance the relevant factors, including defendant’s personal and criminal background. In fact, the record clearly shows the court was aware of its discretion, aware of the applicable factors a court must consider, and appropriately considered and balanced the factors. The record shows that the court considered defendant’s age, his involvement in the incident, the circumstances of the crime, the individualized factors to the specific offender and offense, the victim’s injuries, the type of crime, and public safety. Defendant was clearly an involved member of a criminal street gang and committed the crimes with the help of fellow gang members by stabbing the victim in the back as the victim fought a fellow gang member. This activity is precisely what the street gang enhancement is designed to punish and deter. Accordingly, we cannot find the trial court abused its discretion by noting the case was gang related or that “society has an interest in deterring people’s involvement in criminal street gangs and recognizes the incredible violence and nature that criminal street gang activity poses to the community.”
Contrary to defendant’s contention, “the court did not abandon individualized sentencing; instead it carefully considered [defendant]’s background[and] the offense[s] involved, ... and then deliberately based its decisions on these factors. The judge’s additional comments explaining rejection [or agreement] of [defendant]’s unusual claim for leniency properly considered the effect a reduced punishment would have on society.” (People v. Levingston (1982) 136 Cal.App.3d 724, 731.) On this record, we cannot say that the court’s decision to not strike the punishment for the gang enhancement “‘“‘exceeds the bounds of reason, all of the circumstances being considered.’”’” (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)
There is a strong presumption that a trial court properly exercises its discretion in refusing to deviate from a sentencing norm. (See In re Large (2007) 41 Cal.4th 538, 551.) If the statutory limitations on striking gang enhancements are to have any substantial scope and effect, “unusual case” and “interests of justice” must be narrowly construed. (See People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1229 [requiring narrow construction of similar language providing limited exception to prohibition against probation for certain crimes].)
The trial court’s lengthy statement upon rendering its decision indicates it exercised its discretion in a considered manner. While defendant may assign greater weight to what he considers factors that made his case unusual, this is not sufficient to meet the heavy burden necessary to overcome the presumption that the trial court appropriately exercised its discretion to achieve legitimate sentencing objectives. (See People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) Because exceptions for unusual cases are to be narrowly construed, and because the record does not indicate that the trial court misunderstood its discretion or failed to weigh the analytical factors before it, we hold that the trial court did not abuse its discretion in declining to strike the gang enhancements.
III
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P.J., CODRINGTON J.