Opinion
F074586
06-28-2018
THE PEOPLE, Plaintiff and Respondent, v. LINO ZAMORA MARQUEZ, Defendant and Appellant.
R. Randall Riccardo, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F09904810)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. F. Brian Alvarez, Judge. R. Randall Riccardo, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Peña, J.
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INTRODUCTION
On February 17, 2012, appellant Lino Zamora Marquez pled no contest to one felony count of violating Vehicle Code section 23152, subdivision (b), driving with a blood-alcohol level of 0.08 percent or higher. He also admitted that his blood-alcohol level was 0.15 percent or higher (Veh. Code, § 23578); that he had two prior felony convictions for violations of Vehicle Code section 23152, subdivision (b) (Veh. Code, § 23550.5, subd. (a)); and that he had served a prior prison term (Pen. Code, § 667.5, subd. (b)).
References to code sections are to the Penal Code unless otherwise specified.
Marquez concedes he is presumptively ineligible for probation pursuant to section 1203, subdivision (e)(4) but contends the trial court abused its discretion in not finding his was an unusual case that merited a grant of probation. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
Because Marquez pled to the offense, the facts are taken from the probation report. The probation report states that around 8:30 p.m. on June 24, 2009, an officer noticed a landscaping truck with a trailer in the unpaved median strip on Clovis Avenue. The truck stopped suddenly and the driver exited. The officer parked near the truck and went to inquire why the truck had stopped in the median.
Marquez told the officer the truck was overheating. The officer could smell the odor of alcohol and noticed a large box of beer on the front seat of the truck; an open, cold beer was in the cup holder. The officer administered a field sobriety test and based upon the results, placed Marquez under arrest. Marquez told the officer he recently had served a prison term for drunk driving. At the scene, the officer was able to confirm only that Marquez's license was suspended.
A blood sample was taken from Marquez after his arrest. It was determined that his blood-alcohol level was 0.15 percent.
On February 17, 2012, Marquez signed a felony advisement, waiver of rights, and plea form. He agreed to plead no contest to one felony count of violating Vehicle Code section 23152, subdivision (b), driving with a blood-alcohol level of 0.08 percent or higher and to admit that his blood-alcohol level was 0.15 percent or higher (Veh. Code, § 23578); that he had two prior felony convictions for violations of Vehicle Code section 23152, subdivision (b) (Veh. Code, § 23550.5, subd. (a)); and that he had served a prior prison term (§ 667.5, subd. (b)). The plea agreement provided for a maximum three-year "lid" at sentencing.
Marquez entered his plea, as outlined in the plea form, at a hearing on February 17, 2012. The parties stipulated to a factual basis for the plea. The trial court accepted the plea after advising Marquez of his constitutional rights and consequences of his plea; accepting a waiver of rights; and verifying that Marquez understood the sentencing "lid" was a three-year term in prison, not local custody.
The probation department detailed Marquez's prior criminal history in the probation report. It showed multiple convictions for driving under the influence of alcohol, some causing injury; reckless driving; and infliction of injury on a spouse or cohabitant in violation of section 273.5, subdivision (a). The probation report stated Marquez was ineligible for probation pursuant to section 1203, subdivision (e)(4) and that there was "no support for an unusual case finding."
The probation officer opined that Marquez continued to demonstrate he was a hazard to the community, had not maintained sobriety, and had not enrolled in any treatment program. The probation report recommended a denial of probation and imposition of a three-year prison term for the underlying offense, plus an additional one year for the prior prison term enhancement.
On March 20, 2012, the matter was set for sentencing. Marquez did not appear and defense counsel indicated he was ill and had gone to a hospital. The trial court noted that "Marquez continues to be in and out of various medical centers, which has been almost chronic in this case from the beginning ...." The trial court stated the "bench warrant which was held to today's date will now be issued."
On May 31, 2016, Marquez was before the trial court for sentencing, having been arrested on the bench warrant and held in custody. Defense counsel asked for a continuance of sentencing. Because of the passage of time, the trial court ordered an updated probation report and granted the continuance.
The updated probation report stated Marquez was statutorily ineligible for probation pursuant to section 1203, subdivision (e)(4) and that the probation officer "found no unusual circumstances where the interest of justice would best be served if the person was granted probation." The probation report listed at least four factors in aggravation and one factor in mitigation.
The updated probation report recommended a denial of probation and a prison term be imposed, noting this was Marquez's fifth felony conviction. The probation officer recommended imposition of the upper term of three years for the Vehicle Code offense, plus an additional one year for the prison prior.
Marquez filed a sentencing memorandum, attaching multiple pages of medical records detailing his medical conditions arising out of alcoholism. The memorandum argued that Marquez met the criteria of California Rules of Court, rule 4.413, as an unusual case warranting probation. Marquez also submitted a declaration indicating he was an alcoholic, was awaiting a liver transplant, and had not consumed alcohol in the past five years.
Marquez was before the trial court for sentencing on October 21, 2016. The trial court had reviewed the probation report and the sentencing memorandum submitted on behalf of Marquez. Defense counsel argued that Marquez was suffering from several medical conditions, all arising from his cirrhosis of the liver. Defense counsel acknowledged that Marquez was presumptively ineligible for probation, but argued that Marquez's medical conditions and the fact he had refrained from using alcohol for the past several years warranted finding this to be an unusual case. Defense counsel also stated that Marquez suffered from a mental condition, "alcohol use dependency," that would respond favorably to treatment as a condition of probation. At the conclusion of defense counsel's remarks, the trial court stated that it had reviewed the sentencing memorandum and attached documents and did not have any questions of counsel.
The People opined that Marquez minimized his own conduct and was a danger to the public. The People also noted that Marquez had absconded for four years after pleading to the offense and questioned whether he would follow through on any conditions of probation. The People submitted on the recommendation of the probation department.
After both parties submitted the matter for decision, the trial court stated that Marquez was presumptively ineligible for probation. The trial court stated it was "concerning" that the current offense was Marquez's "fifth felony DUI and actually a seventh DUI overall." The trial court noted that he failed to appear for sentencing four years ago and "was gone from this court."
The trial court found that Marquez was not "particularly aged" and had a lengthy criminal record. The trial court found that while Marquez's alcoholism may be a mental affliction, there was no indication Marquez would need treatment offered through a condition of probation; Marquez claimed he had not been drinking the entire period where he was absent from court. The trial court opined that driving under the influence of alcohol was always a serious offense and that Marquez had a history of drinking and driving. In the trial court's opinion, Marquez's continued driving posed a safety risk to the public.
The trial court did "not find unusual circumstances" warranting a grant of probation. The trial court also looked at factors in aggravation and mitigation and concluded, "I cannot grant him probation." The trial court imposed the middle term of two years for the underlying offense and stayed the term for the prior prison term enhancement because it had considered that as a factor in aggravation. The trial court awarded a total of 225 days of credit against the total term of two years. The trial court also ordered that Marquez be considered for housing in a Department of Corrections medical facility.
Marquez filed a notice of appeal on October 24, 2016.
DISCUSSION
Marquez's sole contention on appeal is that the trial court abused its discretion when it failed to find his case was an unusual case warranting probation.
Standard of Review
Section 1203, subdivision (e) provides that a defendant is presumptively ineligible for probation and probation shall not be granted a defendant "who has been previously convicted twice in this state of a felony," except in unusual cases where the interests of justice would be served to grant probation. (§ 1203, subd. (e)(4).)
In determining whether the statutory limitation on probation has been overcome, the court is required to use the criteria set forth in California Rules of Court, rule 4.413. If the court finds the case to be an unusual one, it must then decide whether to grant probation, utilizing the statutory criteria set forth in rule 4.414. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 830.) We review the trial court's finding that a case is not unusual for abuse of discretion. (Id. at p. 831.) To establish an abuse of the trial court's discretion, a defendant must show that the denial of probation was arbitrary, capricious, or exceeded the bounds of reason. (Ibid.; People v. Bradley (2012) 208 Cal.App.4th 64, 89.)
References to rules are to the California Rules of Court.
No Abuse of Discretion
Rule 4.413 specifies the trial court shall apply criteria set forth in the rule to determine if the current case is an unusual case where the statutory prohibition on probation is overcome. (Rule 4.413(b).) If the trial court finds that the instant matter is an unusual case overcoming the statutory prohibition on probation, then it shall apply the criteria in rule 4.414 to determine whether to grant probation. (Rule 4.413(b).)
Rule 4.413(c) provides that "[t]he following factors may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate." (Italics added.) The language in rule 4.413 is permissive, not mandatory. (See People v. Stuart (2007) 156 Cal.App.4th 165, 178.) This means the "trial court may but is not required to find the case unusual if the relevant criterion is met under each of the subdivisions." (Ibid., citing People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1587.)
Under rule 4.413(c), facts that may indicate an unusual case include: (1) the circumstance giving rise to the limitation on probation is 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; (2) the defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense; (3) 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 (4) the defendant is youthful or aged and has no significant record of prior criminal offenses.
The premise underlying Marquez's assertion the trial court abused its discretion is his claim the probation report failed to analyze the rule 4.413 criteria and the trial court improperly analyzed the criteria. Marquez's premise, however, assumes that if he satisfies one of the criteria in rule 4.413, the trial court is obligated to find his an unusual case warranting probation. Even if Marquez satisfied every criteria in rule 4.413, the trial court was not obligated to find his an unusual case warranting probation. (People v. Stuart, supra, 156 Cal.App.4th at p. 178; People v. Cattaneo, supra, 217 Cal.App.3d at p. 1587.)
Moreover, we disagree with Marquez's contention the trial court misunderstood and misapplied the criteria. The trial court disagreed with Marquez's analysis of the criteria, which is not the same as misinterpreting the criteria. The trial court applied the criteria in rule 4.413(c)(2)(C) and found that Marquez was not "particularly aged" at 55 years old and had a lengthy criminal record. The trial court applied the criteria in rule 4.413(c)(2)(B) and found that while Marquez's alcoholism may be a mental affliction, there was no indication Marquez would benefit from treatment offered through a condition of probation; Marquez claimed he had not been drinking the entire period where he was absent from court.
The trial court effectively applied the criteria of rule 4.413(c)(1)(A) when it stated that the current offense was Marquez's "fifth felony DUI and actually a seventh DUI overall." The trial court opined that driving under the influence of alcohol was always a serious offense and that Marquez had a history of drinking and driving, thus indicating in the trial court's opinion the current offense was no less serious than the prior DUI's that in part were the cause of the probation limitation, per rule 4.413(c)(1)(B). The trial court made no finding, and there was no evidence to suggest, that Marquez was under duress when he committed the current offense (rule 4.413(c)(2)(A)). Moreover, there is no rule or statutory criteria providing that Marquez's medical conditions as a result of his alcoholism mandate the trial court grant him probation.
In addition to considering the factors in rule 4.413, the trial court took the additional step of considering additional criteria, as permitted by rule 4.408(a). The trial court found it concerning that Marquez had absconded for a period of four years from the court proceedings and weighed this factor in deciding whether to grant probation. The trial court also noted Marquez's continued driving posed a danger to the community. Finally, the trial court also considered the criteria in aggravation and mitigation before concluding, "I cannot grant him probation."
Courts must construe "unusual case" and "interests of justice" narrowly so that the statutory limitations on probation have substantial scope and effect. (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1229.) Thus, unusual cases are limited to those matters in which the crime is either atypical or the offender's moral blameworthiness is reduced. (Ibid.)
'"The grant or denial of probation is within the trial court's discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion. [Citation.]' [Citation.] 'In reviewing [a trial court's determination whether to grant or deny probation,] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court's order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.' [Citation.]" (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311.)
The trial court did not abuse its discretion, or exceed the bounds of reason, in finding the instant case was not an unusual case warranting probation.
DISPOSITION
The judgment is affirmed.