Opinion
B201082
4-25-2008
THE PEOPLE, Plaintiff and Respondent, v. NEFTALI HUMBERTO DIAZ, Defendant and Defendant
Marta I. Stanton, 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, Assistant Attorney General, Scott A. Taryle and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Neftali Humberto Diaz appeals from a judgment entered upon his conviction by jury of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b), count 1), discharge of a firearm with gross negligence (§ 246.3, count 2), and misdemeanor battery (§ 242, count 3). As to count 1, the jury found to be true the allegation that defendant personally used a firearm within the meaning of section 12022.5. The trial court sentenced defendant to an aggregate state prison term of 10 years, consisting of the middle term of six years on count 1, plus four years for the firearm enhancement, with concurrent sentences on both count 2 and 3. Defendant contends that the trial court abused its discretion in denying probation and imposing an irrational and arbitrary 10-year sentence.
All further statutory references are to the Penal Code unless otherwise indicated.
We affirm.
FACTUAL BACKGROUND
On September 16, 2006, Pedro Gallegos (Gallegos) was working as a security guard at the El Girasol nightclub, on Van Nuys Boulevard. At 11:30 p.m., he was patrolling near the restrooms, when he saw defendant standing between two women who were arguing. One was defendants stepdaughter, Erica Valdez (Valdez).
Gallegos approached and announced that he was a security guard. He told Valdez to accompany him outside. She ignored him and struck the other woman in the face. When Valdez tried to hit the other woman again, Gallegos grabbed her arm and escorted her towards the exit. Defendant hit Gallegos in the back of the neck twice before Gallegos reached the exit and tried to hit him two more times, but missed.
Outside the club, defendant refused to calm down, got close to Gallegos and threatened to "kick [his] ass." When defendant approached him, Gallegos sprayed him with pepper spray. Gallegos then entered the club and heard six or seven gunshots.
Another security guard, Aldo Zepeda (Zepeda), was working at the entrance to the club and witnessed the altercation. He heard defendant, who appeared to be under the influence, say in substance, "You are going to pay for this." Zepeda saw defendant walk towards a car, and, five minutes later, saw him in the parking lot, fire a gun into the air two or three times. There were more than 10 people in the area. Before he fired, defendant said, "You are going to die, fucking security guards, because you hit my daughter."
Zepeda walked to the middle of the parking lot where defendant pointed the gun at him. Zepeda did not see any security guard shoot at defendant, but he "perhaps" told police one of them returned fire.
Daniel Patino (Patino), a third security guard, heard one shot, threw himself to the ground and pointed a gun at defendant, instructing him to drop the gun. Defendants wife, walked between Patino and defendant. Luis Gonzalez (Gonzalez), defendants daughters boyfriend, grabbed defendant and took his gun. All of the security guards then grabbed defendant. Patino testified that defendant was the only one shooting.
Los Angeles police officers Rafael Erives and Edward Yates responded to the scene. They obtained the nine-millimeter handgun taken from defendant. A magazine containing 10 live, nine-millimeter rounds was in the gun. As Officer Yates cleared the gun, a spent nine-millimeter shell casing and a live nine-millimeter round fell from the weapon. He opined that after the gun was fired, it failed to eject the empty shell casing. As a result, when a live round was chambered, the gun would not fire when the trigger was pulled.
At the police station, defendant told Officer Erives that a woman at the club accused him of grabbing her. His daughter began fighting with her. He tried to break up the fight, and his family was kicked out of the club and pepper sprayed. Defendant told the officer that he angrily got his gun and accidentally shot at the ground.
Defendant testified on his own behalf, telling a dramatically different story. He consumed only two or three beers in the club. A security guard grabbed his daughter by the neck, bent her arm behind her back, and pepper sprayed defendant just for asking why his daughter was removed. He denied touching Gallegos, threatening a security guard, making the threatening statements attributed to him, telling the officer that he got his gun in anger, and pointing the gun at Zepeda.
Defendant claimed that after being pepper sprayed, he washed his face for about 30 to 40 minutes. He then returned to his car and picked up his loaded gun from the floor in the back of the car, under the drivers seat, where he had placed it with the safety off before he entered the club. The gun got stuck between the seat and car floor and accidentally discharged into the ground, outside the car, as he was moving it to the trunk. He never raised it above his head and did not know how his finger touched the trigger.
Gonzalez testified that he heard shots from the security guards, so he took the gun from defendant and threw defendant and himself to the ground. Defendants wife kept yelling for the security guards not to shoot, but they kept shooting. Gonzalez did not see defendant point the gun at anyone.
Valdez contradicted defendants testimony, testifying that defendant exited the club before her and was not around when she had an altercation with another woman who was arguing with her mother.
DISCUSSION
At defendants sentencing hearing, defense counsel requested that defendant be given a grant of probation with one year in county jail, or, alternatively, the low term based upon his lack of criminal history and admission of mistakes handling the gun.
The prosecutor requested the middle term of six years on count 1 plus the middle term of four years for the firearm-use enhancement. She argued that the jury found defendants version of events unbelievable and noted that defendant was offered the low term of 16 months on count 2 before trial, which he rejected.
The trial court indicated that it had read and considered the probation report. It sentenced defendant to the middle term of six years on count 1 plus the middle term of four years on the firearm-use enhancement, and to concurrent terms of two years and 180 days on counts 2 and 3, respectively. It stated: "I am mindful of the fact that the jury did not believe Mr. Diaz, that — Im mindful of the fact that it was a very dangerous, very, very dangerous situation when somebody goes outside a crowded location, in this case a nightclub, and starts shooting a gun in the parking lot and then ultimately challenged by some security guards points a gun at one of the security guards. And I guess by the grace of God they are both, Mr. Diaz and the security guard in question, the gun apparently jammed and we are not dealing with a murder charge here or a charge of somebody seriously injured by a shooting. And so very, very dangerous, volatile situation here. So on this matter I dont believe that Mr. Diaz is a suitable candidate for probation. . . . Now the court notes that defendant has no prior record apparently. But the court also notes this was an extremely dangerous and volatile situation."
Defendant contends that the trial court abused its discretion in denying him probation and sentencing him to a 10-year term. He argues that the sentence was arbitrary and irrational because he had no prior criminal record; is a 42-year-old, married man with children; and before trial, was offered a plea arrangement of 16 months and the probation report recommended three-years probation. He further argues that the sentence punished him for refusing to accept a pretrial offer; presenting what was considered a frivolous defense; and having a loaded firearm in his car with the safety off. This contention is without merit.
A trial court has broad discretion in sentencing. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) That discretion includes discretion in imposing sentence within a statutory range (People v. Sullivan (2007) 151 Cal.App.4th 524, 566) as well as discretion in determining whether or not to grant probation. (See People v. Wilson (1973) 34 Cal.App.3d 524, 528; People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)
We review sentencing orders, including orders denying probation, for abuse of discretion, and will not reverse such an order absent clear abuse. (People v. Podesto (1976) 62 Cal.App.3d 708, 723; In re Large (2007) 41 Cal.4th 538, 550.) A heavy burden is on the defendant to show that the sentencing decision was irrational or arbitrary and that denial of probation was an abuse of discretion. (People v. Philpot (2004) 122 Cal.App.4th 893, 904.) In the absence of such a showing, it is presumed that the trial court acted to achieve legitimate sentencing objectives. (Ibid.)
I. Probation
The Attorney General notes that defendant was "presumptively ineligible for probation under section 1203, subdivision (e)(2), which prohibits a grant of probation in cases where a firearm is used `[e]xcept in unusual cases where the interests of justice would best be served if the person is granted probation." We agree.
Section 1203, provides in part: "(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."
Defendant used a handgun in perpetrating the crimes of which he was convicted, aimed the gun at Zepeda, and possibly even attempted to fire at him. Hence, he was presumptively not entitled to probation absent demonstrating "unusual" circumstances. (See People v. Superior Court (Du), supra, 5 Cal.App.4th at p. 832 [defendant who uses a firearm in the commission of a crime presumptively ineligible for probation]; § 1203, subd. (e)(2).)
In cases where a defendant is presumptively ineligible for probation, the trial courts discretion is more limited in granting probation (People v. Edwards (1976) 18 Cal.3d 796, 807) because the defendant must show factors justifying the departure from the declared policy of the Legislature (People v. Bryan (1970) 3 Cal.App.3d 327, 346). "[M]ere suitability for probation does not overcome the presumptive bar set out in sections 1203 and 1203.45." (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1229.)
California Rules of Court, rule 4.413 (rule 4.413) sets forth the factors that "may indicate the existence of an unusual case in which probation may be granted" so as to overcome this presumptive ineligibility for probation. (Rule 4.413(c).) One factor is that the facts of the case are "substantially less serious than the circumstances typically present in other cases . . . and the defendant has no recent record of committing similar crimes." (Ibid.) A second factor is where there is a circumstance, not amounting to a defense, that reduces the defendants culpability, such as great provocation, coercion, duress and the defendant has no record of committing crimes of violence. Another factor is a reduced mental condition of the defendant, not amounting to a defense. A youthful or aged defendant with no significant record of prior criminal offenses is a final factor.
None of the rule 4.413 factors applies in defendants favor here. Defendants use of the firearm was quite serious, creating the very dangers at which the statute appears aimed. There are no facts suggesting a diminished mental state of defendant or other circumstances reducing his culpability. Defendant knew what he was doing, had consumed only two or three drinks, and retrieved his gun in anger. Finally, defendant is neither youthful nor aged so as to invoke the final mitigating factor.
While rule 4.413 does not appear to be an exhaustive list of factors, we find no evidence warranting the trial court to ignore the declared intention of the Legislature to punish those who use a deadly weapon on another person in connection with the perpetration of a crime. "A previous course of good conduct and good standing in the community is not `reasonably related . . . to the decision of whether an offense constitutes an `unusual case where the interests of justice would be best served by granting probation." (People v. Superior Court (Dorsey), supra, 50 Cal.App.4th at p. 1229.) The fact that defendant had no prior criminal record does not compel probation even when there is no presumption of ineligibility. (People v. Herd (1963) 220 Cal.App.2d 847, 850 [denial of probation by defendant convicted of assault with a deadly weapon not abuse of discretion even where defendant has no criminal record and is otherwise eligible for probation].) The recommendation of probation in the probation report is not binding on the trial court. (People v. Welch (1993) 5 Cal.4th 228, 234; People v. Johnson (1951) 106 Cal.App.2d 815, 816.) Moreover, here, the probation report did not consider that defendant was presumptively ineligible for probation. It pointed to no circumstance that was sufficiently unusual as to overcome the presumption. The trial court considered the probation report, but after hearing all of the evidence disagreed with its recommendations.
Consequently, the trial court did not abuse its discretion in denying probation.
II. Ten-year Sentence
As stated above, defendants 10-year sentence was based upon imposition of the middle term on count 1 plus the middle term on the firearm-use enhancement. "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime." (§ 1170, subd. (b).) Hence, absent a preponderance of aggravating or mitigating factors, it is presumed that the middle term will be imposed, as it was here.
The probation report suggested that the crime involved great violence, the threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness in aggravation and in mitigation, that defendant had no prior criminal record. It concluded that "circumstances in aggravation and mitigation appear equal and support a mid-term state prison sentence." The trial court agreed, carefully considering all of the factors in imposing sentence. The court concluded that both the nature of the crime and the defendants situation warranted the middle term sentence. We cannot say that the trial court abused its discretion in so concluding as the defendant shot his weapon in the air in a crowded parking lot and then aimed it at a security guard, possibly avoiding seriously injuring or killing another only because the weapon jammed as it was being fired.
Defendant suggests that he was penalized for refusing to plead guilty and presenting a "frivolous defense." The record fails to support this claim. Simply because the plea offer was mentioned at the sentencing hearing is not an indication that the trial court considered its rejection by defendant as a factor in its sentence. In the absence of clear evidence to the contrary, "the trial court is presumed to have acted to achieve legitimate sentencing objectives." (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
DISPOSITION
The judgment is affirmed.
We concur:
BOREN
DOI TODD