Opinion
A148322
03-15-2018
THE PEOPLE, Plaintiff and Respondent, v. BRANDON GABRIEL HIDALGO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR-666762)
Defendant and appellant Brandon Gabriel Hidalgo (appellant) contends the trial court erred in instructions relating to self-defense in his trial for attempted murder, assault with a deadly weapon, and other charges. He also contends the court erred in finding him ineligible for probation and sentencing him to a seven-year prison term. We affirm.
PROCEDURAL BACKGROUND
In an amended information filed in October 2015, appellant was charged in count one with the attempted premeditated murder of Armando Barragan on May 29, 2015 (Pen. Code, §§ 664/187, subd. (a); see also § 189). Count two alleged that, on the same date, appellant assaulted Barragan with a deadly weapon, a knife (§ 245, subd. (a)(1)). Count three alleged appellant entered Barragan's home with the intent to commit a felony (§ 459) and count four alleged appellant made criminal threats to Barragan (§ 422, subd. (a)). The information also included allegations of personal use of a knife (§ 12022, subd. (b)(1)) and infliction of great bodily injury (§ 12022.7, subd. (a)).
All undesignated statutory references are to the Penal Code.
In December 2015, a jury found appellant guilty on count one of the lesser included offense of attempted voluntary manslaughter (§§ 664/192, subd. (a)), and found true the allegations that he personally used a knife and inflicted great bodily injury. The jury found appellant guilty on count two (assault with a deadly weapon) and found true a great bodily injury allegation. The jury acquitted appellant on counts three and four.
In April 2016, the trial court sentenced appellant to seven years in state prison, comprised of the three-year mid-term on count one, plus one year for the weapon enhancement and three years for the great bodily injury enhancement. The court stayed the sentence on count two pursuant to section 654.
This appeal followed.
FACTUAL BACKGROUND
The Prosecution's Case
In about May 2014, the victim, Armando Barragan, moved into an apartment in Santa Rosa; his two young children lived with him, at least part of the time. About five months later, appellant, his wife Yvette Serrato, and their son moved into the apartment above Barragan. Appellant and Barragan became friends. Serrato, whom Barragan had never spoken to, approached him after appellant accompanied Barragan to a soccer game and to have some drinks. She said appellant was an alcoholic and asked Barragan not to drink with appellant.
At some point, Barragan and Serrato began to have more intimate conversations. Serrato told Barragan that her marriage was troubled. She complimented Barragan, telling him that he was good father. Eventually, the two began to communicate frequently by text. The text messages Barragan received from Serrato were complimentary and "very flirty", and sometimes included photographs. Barragan claimed he tried to discourage the flirtatious texts. From April to May 2015, the two exchanged approximately 2,000 text messages. The flirtatious exchanges never evolved into any sexual contact.
On May 25, 2015, in the morning, Barragan and Serrato exchanged flirtatious text messages. Serrato sent Barragan a picture of herself on her bed in her underwear and Barragan asked if she was wearing that at the moment. Serrato then sent photographs of her face, torso, and legs, and Barragan replied by text, "Would you be uncomfortable if I, what, got on you from behind?" Serrato did not respond, and Barragan texted her three more times, ultimately asking if she was "okay." She called him upset later in the day, and told him that appellant had found out about "the texting." She said appellant walked in on her while she was taking a picture to send to Barragan. Barragan told her to seek professional help to fix her marriage.
On May 26, 2015, Serrato moved in with family who lived two to three miles away. In the period leading up to May 29, Barragan did not communicate with Serrato or see appellant.
On May 29, 2015, shortly after midnight, Barragan heard his doorbell, loud thumping on the door, and yelling outside. His two children were sleeping in a bedroom. Barragan went to the front door and he heard appellant and Serrato arguing outside. As Barragan turned the door knob, appellant pushed the door open. Appellant entered and stabbed Barragan on the arm, leg, and back. Barragan told appellant to "stop" and that he was making a "mistake;" appellant responded, "I'm going to fucking kill you, I'm here to kill you, and tonight you're going to die, you're going to fucking die." Appellant stabbed Barragan four more times in the back and then cut Barragan's thumb and wrist when Barragan grabbed appellant's arm.
Appellant put Barragan in a headlock and began choking him; the knife was in front of Barragan's face. Barragan asked appellant to think about their kids. Appellant responded, "fuck you, you didn't think about my kid, so you're gonna die." Barragan threw himself onto his back and used a wrestling move to hold appellant between his legs in a scissor hold. Barragan told Serrato to call for help; Serrato yelled out the front door and called 9-1-1. The attack stopped when a neighbor intervened.
An upstairs neighbor, Miguel Olvera, was watching television when he heard Serrato screaming, "Brandon, stop." Eventually, Olvera went downstairs and saw appellant on top of Barragan inside Barragan's apartment; there was a lot of blood. Appellant was holding a knife; Barragan was telling appellant to stop and trying to grab the knife. Serrato was also telling appellant to stop. Olvera pulled appellant off Barragan and appellant handed Olvera the knife, saying "okay, man, take it, take it, just take it." Olvera held onto appellant until two other men arrived and took appellant outside. Barragan was bleeding badly from a large wound to his back and was "not really" conscious.
Serrato had called her stepfather who drove over to the apartment complex with Serrato's brother, arriving shortly before the police.
At 12:38 a.m., Serrato called 9-1-1 and reported, "My husband is stabbing the neighbor." She said appellant had stabbed Barragan "like 10 times." The transcript of the call reflects that, during the call, Serrato repeatedly told appellant to stop and to let go of Barragan.
Officers Luis Pena and Robert Moore responded to the scene; Pena entered the apartment to assist Barragan, and Moore detained appellant. Appellant told Moore he was "very drunk." Appellant had two lacerations in the webbing between his thumb and index finger, and Moore transported appellant to the hospital to get stitches. In addition to the injuries to his right hand, appellant had a "small scratch" on his left arm and a "small contusion or abrasion" on his neck. As Moore waited with appellant at the hospital, appellant asked how the "other guy was doing." Moore said he did not know and appellant asked, "how many years you think, 5, 10 or 20?" Moore said it was not up to him, and appellant asked, "10 if he lives, 20 if he doesn't?"
Barragan, who was not fully coherent, told Officer Pena that appellant had stabbed him and that "his girl's been trying to get with me." Barragan underwent emergency surgery. He suffered stab wounds to his arms, his left hand, his left thigh, and his back. He also had a fractured rib and a punctured lung and diaphragm.
Appellant's Testimony
Appellant testified in his own defense. He was 21 years old on May 29, 2015. He married Serrato in 2011, and his son was born the same year. After his son's birth, appellant returned to his native Mexico so he could apply to return as a legal resident. While living in Mexico, appellant was in a serious motorcycle accident that put him into a coma for a day. Appellant legally returned to the United States in January 2013.
At the time of the May 2015 incident, appellant was working at an auto shop. He worked long hours and did not make enough money, which caused strain in his marriage. The stress led him to drink, which caused further marital strain.
Appellant considered Barragan a friend, and they spent many weekends together. Their children played together, appellant and Barragan ate and drank together, and they went to soccer games together. They stopped spending time together in April and May 2015, which appellant found strange. Then on May 25 appellant came home unexpectedly because the auto shop was closed for Memorial Day. Appellant snuck up to the bedroom door intending to surprise Serrato, and he saw her on the bed taking a picture of herself in her bra and panties. Appellant grabbed her phone and saw she was sending the picture to Barragan. Appellant was hurt and angry. He asked Serrato to leave and, later that day, contacted the apartment manager and asked about the possibility of moving out.
From May 25 until May 29, 2015, appellant maintained a regular schedule and passed Barragan's apartment approximately seven times. He never attempted to contact or thought of killing Barragan, but he did think about punching Barragan in the face. After work on May 28, appellant drank and watched a televised soccer game with his boss. He then went home and drank tequila. At some point, appellant left his apartment and bought beer. He opened a bottle with a knife he kept in his truck and drove past the place where Serrato was staying. As he drove home, he noticed Serrato following him. They argued when he stopped to urinate and continued to argue when he arrived at his apartment complex. Serrato kept saying, "It's not his fault. He didn't do anything." Appellant was angry she was defending Barragan, and he decided to talk to Barragan about it. He wanted to know why Barragan would "do it" when they were friends.
Appellant pounded on Barragan's door and rang the doorbell. Serrato screamed, "Don't open the door, don't come out." But Barragan opened the door and came out. Appellant and Serrato continued to argue, and then Barragan pushed appellant "slightly" and said "shut up." Appellant "exploded," said "it's on," and pushed Barragan back as hard as he could. Barragan fell backward and grabbed appellant's sweater, which had the effect of dragging appellant into the apartment.
The men wrestled on the floor; appellant tried to punch Barragan as Barragan tried to keep appellant down. Barragan put appellant in a headlock and began choking him. Appellant could not breathe and could not get out of the headlock. Serrato tried to pull appellant away, but the pulling made the choking worse. Appellant believed he was going to pass out. He remembered he had the knife he had used to open beer in his back pocket. He pulled it out and started swinging it. He swung the knife four or five times until Barragan let go. Appellant continued to swing the knife as they struggled over it. The fight ended when a neighbor arrived and took possession of the knife.
DISCUSSION
I. Appellant Has Not Shown Prejudicial Error Arising from CALCRIM No. 505
Without objection, the trial court instructed the jury with CALCRIM No. 505, in relevant part, as follows: "The defendant is not guilty of attempted murder or attempted voluntary manslaughter if he was justified in killing someone in self-defense. The defendant acted in lawful self-defense if: [¶] 1. The defendant reasonably believed that he was in imminent danger of being killed or suffering great bodily injury. [¶] 2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger. [¶] AND 3. The defendant used no more force than was reasonably necessary to defend against that danger. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of death or great bodily injury to himself. Defendant's belief must have been reasonable and he must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the killing was not justified." (Italics added.)
Appellant contends the trial court erred in instructing the jury it could not find self-defense unless appellant acted only because of the belief that he was in imminent danger. We reject the claim because CALCRIM No. 505 is a correct statement of law; any ineffective assistance of counsel in failing to seek a pinpoint instruction on causation was harmless; and, to the extent the instruction and the underlying statute violate a defendant's federal constitutional right to self-defense, the instruction was harmless in the present case.
At the outset, we reject appellant's contention that CALCRIM No. 505 is not a correct statement of law. In People v. Nguyen (2015) 61 Cal.4th 1015, the California Supreme Court unambiguously endorsed language equivalent to that in CALCRIM No. 505. There, the defendant shot and killed a rival gang member who, holding a shotgun, approached the car the defendant was driving. (Id. at p. 1043.) Just before the victim arrived at the driver's window, the defendant shot him. (Ibid.) The trial court in Nguyen instructed the jury in the language of CALJIC No. 5.12 that, " 'To justify taking the life [of] another in self-defense the circumstances must be such as would excite the fears of a reasonable person placed in a similar position, and the party killing must act under the influence of those fears alone.' " (Id., at p. 1043, italics added.) The Supreme Court observed that the language of the instruction was consistent with section 198, which states that for a homicide to be justifiable "the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone." (Nguyen, at pp. 1044-1045.) The court rejected the defendant's claim that the evidence established self-defense as a matter of law because "[t]he jury also reasonably could have concluded that defendant was not entitled to claim self-defense because . . . he did not act on the basis of fear alone but also on a desire to kill his rival." (Id. at p. 1044.) We are bound by the Supreme Court's determination that language such as that used in CALCRIM No. 505 is a correct statement of law. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Appellant focuses on dicta in Nguyen observing that, "defendant did not argue in the trial court, nor has he argued on appeal, that the jury should have been instructed that acting based on mixed motives is permissible so long as reasonable fear was the but-for cause of his decision to kill. We therefore have no occasion to consider whether such a rule would be consistent with section 198 . . . ." (Nguyen, supra, 61 Cal.4th at p. 1046.) That dicta does not support a conclusion that a trial court has a sua sponte duty to modify CALCRIM No. 505 to address the possibility of mixed motives and how that might affect the causation analysis. Instead, because CALCRIM No. 505 is a generally correct statement of law, appellant had to request any such clarification below. (People v. Jones (2013) 57 Cal.4th 899, 969 [" '[A] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' "].)
Appellant argues in the alternative that his counsel was ineffective in failing to request modification of CALCRIM No. 505. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) He also contends that, to the extent CALCRIM No. 505 is a proper statement of the law under section 198, the instruction and statute violate his federal constitutional right to self-defense. He argues that, as a matter of substantive due process, he had a right to use deadly force to defend himself, even if his conduct was also motivated by anger. (See McDonald v. Chicago (2010) 561 U.S. 742, 767 ["Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is 'the central component' of the Second Amendment right."].) We need not resolve either of those additional contentions, because instructing the jury with CALCRIM No. 505 was "harmless beyond a reasonable doubt." (Chapman v. California (1967) 386 U.S. 18, 24.)
Aside from appellant's self-serving testimony, all the evidence pointed to a vicious attack on Barragan by appellant. Barragan testified appellant pushed open the door and attacked him with a knife. The acquittal of appellant on the burglary and criminal threats charges suggests the jury may have doubted aspects of Barragan's testimony, but appellant points to nothing that fundamentally undermined Barragan's credibility, whether other evidence or a motive to lie about the incident. More importantly, the physical and other testimonial evidence supported Barragan's general account. Barragan's numerous stab wounds on various locations were more consistent with an extended attack than the limited defensive swinging appellant described. By contrast, appellant's injuries were minor and there was no basis for the jury to conclude the "small contusion or abrasion" on appellant's neck was evidence of the severe choking appellant described. Serrato reported on the 911 call that appellant stabbed Barragan "like 10 times" and said nothing about appellant acting in self-defense, and the transcript reflects that she was telling appellant to stop and let Barragan go. Although the neighbor Olvera only witnessed the end of the assault, he testified he heard both Barragan and Serrato telling appellant to stop, and he testified appellant was on top of Barragan when he arrived. Following appellant's arrest, he made various comments to Officer Moore, but at no point claimed the stabbing was in self-defense. Instead, he made a statement reflecting knowledge of guilt—that his prison sentence would depend on whether Barragan survived.
Finally, the jury's finding of guilt on the charge of assault with a deadly weapon reflects rejection of appellant's claim of self-defense. As to that charge, the trial court instructed the jury pursuant to CALCRIM No. 3470 that self-defense could apply to the charge of assault with a deadly weapon. Among other things, the instruction explained that "Belief in future harm is not sufficient no matter how great or how likely the harm is believed to be. The defendant must have believed that he was in imminent danger of bodily injury. Defendant's belief must have been reasonable and he must have acted because of that belief." (Italics added.) The obvious significant difference between CALCRIM No. 505 and CALCRIM No. 3470 is that, while the former requires that the defendant acted "only because of" belief in imminent danger, the latter requires only that the defendant acted "because of" such a belief.
Appellant argues CALCRIM No. 3470 is equivalent to CALCRIM No. 505, asserting, "when the instructions are read as a whole, a juror would reasonably understand the instructions as allowing perfect self-defense only when the defendant is motivated to use lethal force based solely on fear of death or great bodily injury." But that would require us to assume the jury ignored the obvious omission of the word "only" in CALCRIM No. 3470, which we cannot do. (People v. Sattiewhite (2014) 59 Cal.4th 446, 475 [" ' " 'we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.' " ' "].) Reasonable jurors would understand that the absence of "only" in CALCRIM No. 3470 is significant and that the existence of other motivations would not preclude a claim of self-defense to the assault charge, as long as self-defense was "a cause in fact" (In re M.S. (1995) 10 Cal.4th 698, 719) of the use of force. There is no " 'reasonable likelihood' " the jury misunderstood CALCRIM No. 3470 in the way appellant suggests. (Sattiewhite, at p. 475.) Thus, the jury's conviction on the assault charge reflects its finding that appellant did not commit the assault because of fear of imminent bodily injury. And, accordingly, even if the jury had received the "mixed motive" instruction appellant seeks as to the attempted murder charge, the jury's view of the evidence would still have led it to conclude he did not stab Barragan because of fear of imminent harm. Thus, any error as to CALCRIM No. 505 was harmless beyond a reasonable doubt. II. Appellant Has Not Shown Prejudicial Error Arising from CALCRIM No. 34 72
Pursuant to CALCRIM No. 3472, the trial court instructed the jury, without objection, as follows: "A person does not have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use force." Appellant contends the instruction misstates the law because it forecloses a self-defense claim by a defendant who provoked an altercation to use only non-deadly force. We reject the claim.
At the outset, we note that the California Supreme Court has held the language in CALCRIM No. 3472 is a generally correct statement of law. As explained in People v. Eulian (2016) 247 Cal.App.4th 1324 (Eulian), at page 1333, "In People v. Enraca (2012) 53 Cal.4th 735, 761, our Supreme Court explained that the self-defense doctrine 'may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical attack or the commission of a felony), has created circumstances under which his adversary's attack or pursuit is legally justified.' In Enraca, 'the trial court instructed the jury on the law as we have just explained it. It gave CALJIC No. 5.55: "The right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense." ' (Ibid.) While Enraca involved the CALJIC analog to CALCRIM No. 3472, the language of the two instructions is materially the same. CALCRIM No. 3472 is therefore generally a correct statement of law."
Appellant relies on People v. Ramirez (2015) 233 Cal.App.4th 940 (Ramirez), in which the court concluded that "CALCRIM No. 3472 under the facts before the jury did not accurately state governing law." (Id. at p. 946.) In that case, there was evidence that gang members sought out a rival gang for the purpose of an assault, but when one of the defendants believed a rival gang member had a weapon, he responded with deadly force. (Id. at pp. 944-945.) The prosecutor repeatedly argued in her closing that, under the instruction, it did not matter whether the defendants had only sought to start a fistfight. The Ramirez majority concluded "The blanket rule articulated in CALCRIM No. 3472 and reiterated by the prosecutor effectively told the jury, 'A person does not have [any] right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use [any] force.' In effect, the prosecutor and the trial court advised the jury that one who provokes a fistfight forfeits the right of self-defense if the adversary resorts to deadly force." (Ramirez, at p. 947.)
On the other hand, Justice Fybel argued in dissent that CALCRIM No. 3472 was a proper statement of law even under the facts of the case because the instruction applies only "to a subset of individuals who not only instigate a fight, but do so with the specific intent that they contrive the necessity for their acting thereafter in 'self-defense,' and thus justify their further violent actions. In other words, this instruction applies, and the right to self-defense is lost, only if an initial aggressor commences combat for the intended purpose of provoking a violent reaction so that he or she can then retaliate with further violence, whether deadly force or nondeadly force, under the guise of self-defense. The defendant's intent is measured at the time the fight or quarrel is provoked." (Ramirez, supra, 233 Cal.App.4th at p. 954 (dis. opn. of Fybel, J.).) Justice Fybel continued, "Hence, if the initial aggressor simply provokes a fight using nondeadly force—without an intent to create a larger conflict for the purpose of covering for him or her to engage in further violence in the name of self-defense—he or she is not precluded from claiming self-defense or imperfect self-defense in responding to the adversary's response of deadly force." (Id., at p. 955 (dis. opn. of Fybel, J.).)
We need not decide whether the majority or dissent in Ramirez was correct in its interpretation of CALCRIM No. 3472. As explained in Eulian, supra, 247 Cal.App.4th 1324, the instruction "is generally a correct statement of law, which might require modification in the rare case in which a defendant intended to provoke only a non-deadly confrontation and the victim responds with deadly force." (Id. at p. 1334.) At most, Ramirez is an example of a case where a modification might be justified upon request. Because appellant made no such request below, the trial court did not err. (People v. Jones, supra, 57 Cal.4th at p. 969 [" '[A] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' "].)
Appellant argues in the alternative that defense counsel was ineffective in failing to request modification of CALCRIM No. 3472 to clarify that his intent to provoke a fistfight did not forfeit his right of self-defense. Any ineffective assistance was harmless because, it is not "reasonably likely" the jury would have rendered a more favorable verdict had counsel requested such an instruction. (Strickland v. Washington, supra, 466 U.S. at p. 696.) As explained previously (Part I, ante), aside from appellant's self-serving testimony, all of the evidence pointed to a vicious attack on Barragan by appellant. That evidence included Barragan's testimony, the physical evidence of the extensive injuries to Barragan and limited injuries to appellant, Serrato's 911 call, appellant's incriminating statement to Officer Moore, and the lack of any claim of self-defense in appellant's statements to Moore. Moreover, the jury's finding of guilt on the charge of assault with a deadly weapon reflects rejection of appellant's claim of self-defense. (See Part I, ante.) Finally, as respondent points out, had the jury believed appellant's testimony it could have acquitted him under CALCRIM No. 3471, which instructs in part that "if the defendant used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting, communicate the desire to stop to the opponent, or give the opponent a chance to stop fighting."
In his dissent in Ramirez, Justice Fybel suggested that, "CALCRIM No. 3472 instructs that even if initial aggressors or mutual combatants satisfy the requirements of CALCRIM No. 3471, they are not permitted to assert the right to self-defense if they initially engaged in that activity for the purpose of contriving the opportunity to engage in further violence in response to their adversary's reaction." (Ramirez, supra, 233 Cal.App.4th at p. 957 [dis. opn. of Fybel, J.].)
This case is markedly different from Ramirez as regards the prejudice analysis, because Ramirez repeatedly emphasized the prosecutor's use of CALCRIM No. 3472 to tell the jury that self-defense was not available to the defendants. (Ramirez, supra, 233 Cal.App.4th at pp. 943 ["The prosecutor argued repeatedly based on the plain terms of this instruction that . . . defendants . . . forfeited a claim of . . . self-defense"], 946 ["The prosecutor argued the instruction precluded a claim of self-defense in all possible circumstances under the evidence"], 950 ["the prosecutor . . . erroneously argued CALCRIM No. 3472 obliterated all forms of self-defense—both perfect and imperfect self-defense alike—if the defendant contrives to use any force"], 952 ["CALCRIM No. 3472 as . . . argued by the prosecutor erroneously foreclosed defendants' imperfect self-defense claim"].) In contrast, in the present case the prosecutor did not rely on the instruction but instead argued the other evidence admitted at trial demonstrated appellant did not act in self-defense.
Appellant has not shown any prejudicial error arising from CALCRIM No. 3472.
We need not and do not decide whether the instruction was harmless for the additional reason, as respondent argues, that there was no "substantial evidence . . . from which the jury could reasonably find" (People v. Barton (1995) 12 Cal.4th 186, 202) appellant provoked the confrontation with Barragan "with the intent to create an excuse to use force" (CALCRIM No. 3472).
III. The Prison Term Imposed by the Trial Court Was Not an Abuse of Discretion
Appellant contends the trial court abused its discretion in failing to grant him probation on the basis that this was unusual case. In the alternative, he contends the trial court abused its discretion in sentencing him to a seven-year prison term. We reject both claims.
A. Background
Prior to sentencing, defense counsel filed a "Statement in Mitigation." Counsel argued the trial court should find the presumption of probation ineligibility overcome and place appellant on probation conditioned on participation in anger management and alcohol abuse treatment. Counsel argued, among other things, that appellant suffered from untreated alcoholism, was intoxicated at the time of the offense, received a brain injury in 2012 that interferes with impulse control, and committed the crime after learning that Barragan and appellant's wife had been engaged in an inappropriate relationship. Counsel also pointed out that appellant had only one prior offense (for driving without a license). While in custody, appellant had participated in Alcoholics Anonymous and taken anger management and other classes. Appellant had been accepted into several treatment programs. Finally, defense counsel presented a report from a psychologist opining that appellant expressed genuine remorse and embarrassment, that his conduct resulted from intoxication and his brain injury, that he is "amenable to treatment," and that he would not pose a danger if "provided the appropriate substance abuse and mental health treatment."
The prosecutor filed a sentencing brief urging the trial court to impose the aggravated term of 9 years and 6 months in state prison, which was the term recommended by the Probation Department. Among other things, the prosecutor argued that appellant's offense was more serious than other instances of the same crime, that Barragan was especially vulnerable, and that appellant inflicted serious physical and emotional injury.
At the sentencing hearing, defense counsel and the prosecutor reiterated the arguments in their sentencing briefs. Defense counsel also requested that, if the court did not grant probation, it "consider something that would result in significantly less time than what the People are asking for . . . ."
The trial court denied the request for probation, stating "looking at [California Rules of Court] Rule 4.413 and the totality of the circumstances, although you have a minor record or an insignificant record, I do not believe it would be in the interest of justice to grant you probation." The court then considered the factors in aggravation and mitigation to determine the sentence to be imposed, ultimately concluding the factors were in balance. As factors in aggravation, the court found that the attack was "particularly brutal," that appellant "took advantage of a position of trust," that he knew there were "two sleeping children" in the home, that the attack was unrelenting, and that Barragan was particularly vulnerable because he was in his home. As "substantial factors in mitigation," the court found that appellant has a brain injury that may have affected his impulse control, he has "an ongoing alcohol abuse problem," and he was intoxicated the night of the attack. Because the aggravating and mitigating factors were "essentially equal," the court sentenced appellant to the mid-term of three years for the attempted voluntary manslaughter conviction, plus one year for the personal use of a knife, and three years for the infliction of great bodily injury.
All undesignated rule references are to the California Rules of Court. --------
B. Analysis
Appellant admits he was presumptively ineligible for probation pursuant to section 1203, subdivision (e), which provides that, "Except in unusual cases where the interests of justice would be best served if the person is granted probation, probation shall not be granted to [¶] . . . [¶] (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. [¶] (3) Any person who willfully inflicted great bodily injury or torture in the perpetration of the crime of which he or she has been convicted." The trial court had authority to determine whether the presumption against probation was overcome pursuant to various criteria specified in rule 4.413, relating to the circumstances of the offense, the offender's characteristics, and any risk assessment. (See People v. Stuart (2007) 156 Cal.App.4th 165,178 (Stuart); People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 830-831.) "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), at p. 831; accord Stuart, at p. 178.)
Appellant contends various criteria obligated the trial court to conclude the presumption against probation was overcome. One allegedly applicable criterion is that, "The factor 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." (Rule 4.413(c)(1)(A).) Appellant argues that criterion applies because, according to the jury's verdict, he committed the attack on Barragan either due to imperfect self-defense or due to the heat of passion, rather than "for no reason at all." However, that would make the criterion applicable in every case where a defendant was convicted of attempted voluntary manslaughter, which is inconsistent with the "unusual case" requirement. (See Stuart, supra, 156 Cal.App.4th at p. 178 [" '[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' "].) In any event, given the number of stab wounds inflicted by appellant, the presence of Barragan's sleeping children nearby, and the fact that appellant only ceased the attack when a neighbor intervened, the trial court could reasonably conclude the circumstances in the present case were actually more serious than those involved in many other cases of great bodily injury involving only a single attack in a less sensitive setting.
Appellant also contends the following criteria, under rule 4.413(c)(2), were applicable: "(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." It is certainly true that appellant was provoked by Barragan and Serrato's texting relationship, but the trial court could reasonably conclude that was not "great provocation," given that there is no indication there was any physical relationship and given that appellant had four days to calm down before the attack.
We do agree the criteria in rule 4.413(c)(2)(B) and (C) may have been applicable, given the evidence of appellant's intoxication and brain injury and the lack of a significant prior criminal record. However, appellant presents no authority the trial court was obligated to find this was an "unusual case" if some of the listed criteria were applicable. To the contrary, "Under rule 4.413, the existence of any of the listed facts does not necessarily establish an unusual case; rather, those facts merely 'may indicate the existence of an unusual case.' (Rule 4.413(c), italics added.) This language indicates the provision 'is permissive, not mandatory.' [Citation.] '[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.' " (Stuart, supra, 156 Cal.App.4th at p. 178.) The trial court did not abuse its discretion in concluding the presumption of probation ineligibility was not overcome.
Neither did the trial court abuse its discretion in imposing the mid-term and declining to strike enhancements. (People v. Carmony (2004) 33 Cal.4th 367, 376; People v. Sandoval (2007) 41 Cal.4th 825, 847.) The court carefully considered and weighed the aggravating and mitigating factors. Appellant has not shown the court acted arbitrarily in identifying or weighing those factors. As the court found, although appellant was provoked and intoxicated and did not have a record of violence, the underlying offense was a brutal and extended attack in the victim's home while the victim's children were sleeping nearby. The court did not abuse its discretion in imposing a seven-year prison term.
DISPOSITION
The trial court's judgment is affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
NEEDHAM, J.