Opinion
D057060
09-30-2011
THE PEOPLE, Plaintiff and Respondent, v. BRIAN ROBERT BERGSTROM, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCD218923)
APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Affirmed.
I.
INTRODUCTION
Defendant Brian Robert Bergstrom appeals from a sentence of six years in prison, imposed after a jury found him guilty of assault with a firearm and found true the allegation that he personally used the firearm in the commission of the assault. Bergstrom contends that the trial court abused its discretion in failing to sentence him to probation. Specifically, Bergstrom argues that a statement the trial court made indicated that the court erroneously believed that it had no choice but to sentence him to prison, and that as a result, the court failed to exercise its discretion in imposing sentence. Bergstrom also maintains that if the court had properly exercised its discretion, it would have determined that his was precisely the "unusual" case for which probation, and not a prison term, was warranted.
We disagree with Bergstrom's contentions. The record demonstrates that the trial court exercised its discretion in deciding that a prison term was warranted in this case. In addition, the record discloses no abuse of discretion in the court's choosing to sentence Bergstrom to prison rather than grant him probation. We therefore affirm the judgment of the trial court.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
On the morning of February 10, 2009, Diego Delgado was spending time with his girlfriend, Gloria Bentley, at his apartment on Rancho Mission Road in San Diego. At about 9:00 a.m., Bentley left the apartment to go to a nearby store. When Bentley returned, she was almost in tears. She told Delgado that a man had been following her and that the man had looked at her in a "bad way." Bentley pointed out the apartment window at the man, who was walking to a parking lot. Delgado recognized Bergstrom and told Bentley to ignore him.
At 11:30 a.m., Delgado packed beer and food into a cooler and went with Bentley to the pool area of their apartment complex to have lunch. As Delgado was about to get into the spa in the pool area, Bentley informed him that Bergstrom was looking at them from behind bushes that surrounded the pool area. Delgado walked out of the pool area to speak with Bergstrom. Delgado asked Bergstrom why he was following them and spying on them. Bergstrom responded with insulting words, and then left. Delgado returned to the pool area.
Delgado sat in the spa for a little while, and then saw Bergstrom walking toward him. Bergstrom was wearing a jacket. Delgado got out of the spa, and wearing only shorts and sandals, walked out of the pool area to within five feet of Bergstrom. Delgado demanded to know what Bergstrom wanted from him and Bentley. Bergstrom again yelled insults at Delgado and told Delgado to "get out of here."
Bergstrom pulled a gun from his jacket pocket and pointed it at Delgado's chest. When Delgado saw the gun, he stopped moving. Bergstrom lowered the barrel of the gun, pointed it at Delgado's legs, and fired. Delgado felt a "lot of burning" and noticed blood running down his leg. Bergstrom started walking toward a parking lot. Delgado returned to the pool area and used Bentley's cell phone to call the police.
A number of residents of the apartment complex heard the gunshot, but did not see the shooting. However, one neighbor saw Bergstrom walking on a path, heading away from the pool area and holding a gun in his right hand, just after the neighbor heard the gunshot. The neighbor watched as Bergstrom paused along the path, looked around, crouched down and wiped his hands on the grass. He then picked up a large leaf and appeared to be trying to use the leaf to conceal the gun as he carried it at his side and walked toward his apartment. The neighbor called police to report what he had seen.
The bullet entered and exited Delgado's right leg, and did not cause any arterial or nerve damage. However, Delgado developed deep vein thrombosis as a result of the gunshot wound.
Bergstrom stipulated that he fired his .380 caliber handgun on February 10, 2009, and that a bullet from his gun struck Delgado.
Bergstrom's defense was, essentially, that he had been confronted multiple times by Delgado, who aggressively asked Bergstrom what he was "looking at," and that Bergstrom retrieved his gun because he was afraid of Delgado. According to Bergstrom, at one point that day, Delgado blocked Bergstrom's path, assumed a martial arts pose, and said to Bergstrom, "So you gonna shoot me, huh?" Bergstrom pointed the gun at Delgado's chest, yelling "[G]et back, get back." Instead of retreating, Delgado approached Bergstrom in a "threatening type manner." Bergstrom then lowered the gun until it was pointed at Delgado's leg and fired. B. Procedural background
A jury found Bergstrom guilty of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)). The jury found true the enhancement allegation that Bergstrom personally used a firearm to commit the crime (§§ 12022.5, subd. (a), 1192.7, subd. (c)(23)).
Statutory references are to the Penal Code, unless otherwise specified.
The trial court sentenced Bergstrom to prison for an aggregate term of six years, which included a low term of three years for the assault with firearm offense, plus an additional three years for the personal use of a firearm enhancement.
Bergstrom filed a timely notice of appeal.
III.
DISCUSSION
Bergstrom contends that the trial court erred in "failing to determine that appellant's case was an unusual one such that the interests of justice would best be served by granting probation." He suggests that his case meets the criteria set forth in California Rules of Court, rule 4.413(c) for overcoming the presumptive ineligibility for probation, and further suggests that the trial court did not actually exercise its discretion to determine whether the presumption against granting probation had been overcome in his case. A. The trial court exercised its discretion
Further rule references are to the California Rules of Court.
Bergstrom argues that the trial court failed to exercise any discretion in sentencing him to prison rather than granting him probation, and contends that in failing to exercise discretion, the court abused its discretion. In support of this contention, Bergstrom relies on the following statement that the trial court made at the sentencing hearing: "You're presumptively ineligible for probation. If you take out a gun and you sho[o]t someone that's a prison case. It just is. I can't put you on probation." Bergstrom maintains that this statement demonstrates that "it was highly unlikely that the trial court actually considered any of the required criteria to determine whether appellant had overcome his presumptive ineligibility for probation." We disagree.
The record demonstrates that the trial court did consider the required criteria and that after having done so, the court decided against a sentence of probation. The trial court stated:
"I have given a great deal of thought to this [i.e., Bergstrom's sentence]. We do have Mr. Bergstrom having a clean record, having served his country. I do know the good things about it. But I was the trial judge. I just—I couldn't get past— [¶] I have to say, Mr. Bergstrom, the attitude and the testimony even now there is a sense of justifying what you did. I don't know whether you feel you have to do it. I'm not a psychologist. I don't know why, but you're still justifying what you did. There was no—this might have been the neighborhood bully, but it was a neighborhood bully that yelled at people. He didn't beat people up. You might have had a DV conviction, but all I know is you go out and in an apartment complex and you have a loaded gun, and you go where this guy is, and you shoot him.
"Thank goodness it was just through the leg, and he has[] completely recovered[;] but it's a very dangerous behavior, and it's unfathomable that you did that. It's just—if I remember correctly the pepper spray. I thought that was originally said when they first interviewed you that you were merely looking for some pepper spray. But whether it was true or not, I don't think you understand that guns—you can't use a gun in your position.
"You're presumptively ineligible for probation. If you take out a gun and you sho[o]t someone that's a prison case. It just is. I can't put you on probation. I think with all of the other things. The way you've lived your life up to this time I think [the] probation [report] is correct that it is a low term case.
"[Fortunately] the injury is such that although there [are] psychological injuries that flow from this, there doesn't seem to be a lasting physical injury. It was in the leg and fortunately it didn't
shatter a bone or anything like that; because of that the low term of three years is appropriate with the low term on the enhancement as well.
"So for those reasons probation is denied. You'll be sentenced as I said to the low term on the [section] 245[, subdivision] (b) count 1. The low term of three years in state prison." (Italics added.)
A review of the record and all of the trial court's statements, in context, makes it clear that the court did not believe that probation was appropriate under the particular circumstances of this case. The court clearly was not operating under the misimpression that it had no choice but to sentence Bergstrom to prison. Prior to imposing the low term, the court specifically commented that Bergstrom was "presumptively ineligible" for probation. Immediately after making that observation, the court made the remarks at issue. In context, it is clear that the court's statements that this case is "a prison case" and that the court "c[ould]n't put [Bergstrom] on probation" were simply the court's way of emphatically expressing its conclusion, after having weighed the relevant factors, that the circumstances of this case simply did not warrant a grant of probation. We therefore reject Bergstrom's contention that the trial court did "not really consider[] the[] [requisite] factors in order to determine whether probation should be granted." B. The trial court did not abuse its discretion in denying Bergstrom's probation request
We reject Bergstrom's contention that the trial court abused its discretion in determining that his case was not so unusual that, in the interests of justice, it would require a grant of probation.
When a defendant is presumptively ineligible for probation, the trial court is required to apply the criteria set forth in rule 4.413 to determine whether the presumption is overcome and the interests of justice would be served by a grant of probation. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 830.) Rule 4.413 provides in relevant part:
Bergstrom concedes that he was presumptively ineligible for probation.
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"(b) Probation in unusual cases
"If the defendant comes under a statutory provision prohibiting probation 'except in unusual cases where the interests of justice would best be served,' or a substantially equivalent provision, the court should apply the criteria in (c) to evaluate whether the statutory limitation on probation is overcome; and if it is, the court should then apply the criteria in rule 4.414 to decide whether to grant probation.
" (c) Facts showing unusual case
"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;
"(B) The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation; and
" (C) The defendant is youthful or aged, and has no significant record of prior criminal offenses." (Italics added.)
"[M]ere suitability for probation 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 rule 4.413 should be "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.)
Under rule 4.413, the existence of any of the listed facts does not necessarily establish an unusual case; rather, those facts "may indicate the existence of an unusual case." (Rule 4.413(c), italics added.) The provision thus "is permissive, not mandatory." (People v. Serrato (1988) 201 Cal.App.3d 761, 763 [discussing identical language in former rule 416(e)].) "[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." (People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1587 [discussing former rule 416].) If a court determines that the presumption against probation is overcome because the case is unusual, the court then proceeds to evaluate whether to grant probation pursuant to rule 4.414.
"The standard for reviewing a trial court's finding that a case may or may not be unusual is abuse of discretion." (People v. Superior Court (Du), supra, 5 Cal.App.4th at p. 831.) The trial judge's discretion in determining whether to grant probation is broad. (See People v. Warner (1978) 20 Cal.3d 678, 683, superseded by statute on another ground.) "[A] ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.(People v. Carmony (2004) 33 Cal.4th 367, 377, citations omitted.) "[T]hese precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Ibid.) Generally, " ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' [Citations.]" (Id. at pp. 376-377.)
We conclude that the trial court did not abuse its discretion in determining that Bergstrom failed to overcome the statutory provision that rendered him presumptively ineligible for a sentence of probation. He did not demonstrate that his is an unusual case where the interests of justice would best be served by a grant of probation. Among the factors that Bergstrom contends demonstrate that his was an unusual case are his age (Bergstrom was 61 years old at the time of the crime), his lack of any prior criminal convictions, the fact that his crime was "definitely less serious than the same crime in other similar cases," and that the circumstances surrounding the crime were such that he was under great provocation as a result of Delgado's aggressive conduct toward him.
Although Bergstrom's age and his lack of a prior record may, in fact, weigh in favor of this being an unusual case, the other two factors that Bergstrom cites do not. Bergstrom compares his case of assault with a firearm only to cases in which the defendant fired a gun at a victim's torso or fired multiple shots at a victim, and even to cases in which an assault with a firearm was perpetrated in furtherance of another felony or in relation to gang activities. Bergstrom fails to acknowledge that the crime of assault with a firearm can be committed by a person who never actually fires a shot at the victim. Certainly Bergstrom's conduct in aiming directly at the victim (albeit at the victim's leg) from a very close distance and firing, cannot be considered less serious than the conduct of someone who has been convicted of assault with a firearm but who never fired the gun. Thus, although the circumstances of Bergstrom's offense may have been less serious than the circumstances of some assaults with a firearm, it was by no means the least serious of such crimes.
Further, although Bergstrom may have felt personally affronted by Delgado's behavior on the day of the incident, and perhaps even on occasions prior to that day, there was no evidence that there had ever been any physical altercation between the two, or that Delgado had ever made any threat to Bergstrom's safety. Bergstrom's extreme response to what may have been bullying-type behavior cannot be said to have been reasonable or even understandable, under the circumstances. By retrieving a semiautomatic firearm, taking it out into a public area of an apartment complex, and firing it, Bergstrom escalated a relatively minor situation to a dire extreme, and, in so doing, created an exceptionally unsafe situation for others in the complex. The trial court did not abuse its discretion in deciding that this was not an unusual case in which the interests of justice would best be served by allowing Bergstrom to avoid a prison sentence.
IV.
DISPOSITION
The judgment of the trial court is affirmed.
AARON, J. WE CONCUR:
McINTYRE, Acting P. J.
O'ROURKE, J.