Opinion
2d Crim. No. B298767
07-14-2020
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO MENDEZ, Defendant and Appellant.
Miriam R. Arichea, under appointment by the Court of Appeal for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Zee Rodriguez, Supervising Deputy Attorney General, Paul S. Thies, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 1437207)
(Santa Barbara County)
In 2013, Antonio Mendez struck an 86-year-old man in a crosswalk and drove off in his van. Appellant pled no contest to leaving the scene of an accident resulting in death (Veh. Code, § 20001, subd. (a)), a wobbler offense, and was granted five years probation with 210 days county jail. He appeals the denial of his 2019 motion to reduce the conviction to misdemeanor. (Pen. Code, § 17, subd. (b)(3).) We affirm.
All statutory references are to the Penal Code unless otherwise stated.
"When a defendant is convicted (whether by a guilty plea or a no contest plea, or at a trial) of a wobbler offense, and is granted probation without the imposition of a sentence, his or her offense is 'deemed a felony' unless subsequently 'reduced to a misdemeanor by the sentencing court' pursuant to section 17, subdivision (b). [Citations.]" (People v. Feyrer (2010) 48 Cal.4th 426, 438439.)
Facts and Procedural History
On the morning of February 6, 2013, appellant struck and killed Faustino Ramos as he pushed a cart through a crosswalk. A surveillance video showed that appellant stopped for about five seconds and drove off. Two witnesses said the van was traveling 15 to 20 miles per hour.
After Ramos died, appellant told the police he may have hit something but was not sure because the van window was fogged over. Appellants' sons gave the police a key to a van that was towed and impounded. Two days later, the sons admitted they gave the officers the key to the wrong van. The van that hit Ramos was parked in appellant's garage and had a broken plastic headlight, matching the plastic shards at the crosswalk.
In 2013, appellant pled no contest to leaving the scene of an accident, resulting in death or injury. (Veh. Code, § 20001, subd. (a).) The maximum sentence was four years state prison. Over the objections of the victim's family, appellant was granted five years probation with 210 days county jail.
In 2016, appellant filed a motion to reduce the conviction to a misdemeanor and to terminate probation early. (§§ 17, subd. (b), 1203.4.) The trial court denied the motion without prejudice but said it would be happy to consider the matter in six months after "the victim's family and [appellant sat] . . . down with a mediator" to discuss "restorative justice." "There is a hurt here. . . . They just need to start talking to each other."
In 2019, appellant renewed the motion. (§§ 17, subd. (b), 1203.4.) The trial court granted section 1203.4 relief but declined to reduce the conviction to a misdemeanor because appellant had not apologized to the victim's family for his actions. "At some point in the future it may happen, because, you know, people change, circumstances change. [¶] . . . [Appellant] . . . is a person who committed a . . . serious crime . . . ." "[A]t this time I do not think it's appropriate to reduce the matter to a misdemeanor so I am denying that request."
Section 17, subdivision (b)
Section 17, subdivision (b) "authorizes the reduction of 'wobbler' offenses—crimes that, in the trial court's [broad] discretion, may be sentenced alternately as felonies or misdemeanors . . . by declaration as a misdemeanor after a grant of probation (§ 17(b)(3))." (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974 (Alvarez).) The court's exercise of that authority is "an intensely fact-bound inquiry taking all relevant factors, including the defendant's criminal past and public safety, into due consideration . . . ." (Id. at pp. 981-982.) On review, it is presumed that the trial court considered all the relevant factors to achieve a legitimate sentencing objective. (Id. at pp. 977-978.)
The trial court considered the case file, the probation report, favorable letters from appellant's family and friends, and complaints by the victim's family that appellant never apologized or showed remorse. Appellant argues that the trial court did not consider appellant's successful completion of probation, but that was the basis for the section 1203.4 relief: "The law says that if a person completes probation successfully I must grant 1203.4 relief. But, I do have the option, and I'm exercising that option right now to say at this time I am not reducing the charge to a misdemeanor."
Appellant claims the trial court was too sympathetic of the victim's family and ignored appellant's efforts to rehabilitate himself. None of that is supported by the record. The trial court was concerned that appellant had not apologized despite the court's 2016 suggestion that appellant and a mediator meet with the victim's family. "'[[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." [Citations.]' [Citation.]" (Alvarez, supra, 14 Cal.4th at p. 978.)
Appellant argues that he submitted favorable letters documenting the support of his family, employer, and the community. That was considered by the trial court. It found that appellant "in many ways is a good person who committed a crime. It is my job to recognize both what is good in someone and what is not good, the failings that they have."
Appellant requests that we reverse with directions to give full consideration to appellant's circumstances and demonstrated rehabilitation. The trial court has already done that. When appellant entered the change of plea in 2013, he was warned that the traffic fatality was a "horrific tragedy" that "has devastated two families" and will "have adverse impacts for everyone, both sides, no matter what." In 2016, the trial court warned "[t]here is a hurt here" and that appellant should talk to the victim's family. In 2019, the family complained that appellant had still not apologized and had shown no remorse. The trial court found it was not appropriate, at that point in time, to reduce the offense to a misdemeanor.
Appellant makes no showing that the trial court abused its discretion or acted beyond the bounds of reason. (Alvarez, supra, 14 Cal.4th at p. 981 [appellate court applies an "extremely deferential and restrained standard"].) Lack of remorse is an important factor when asking for leniency or a reduced sentence. (Cal. Rules of Ct., rule 4.414(b)(7); People v. Enraca (2012) 53 Cal.4th 735, 767 [remorse is universally deemed a factor relevant to penalty].) "A convicted defendant is not entitled to the benefits of section 17(b) as a matter of right. Rather, a reduction under section 17(b) is an act of leniency by the trial court, one that 'may be granted by the court to a seemingly deserving defendant, whereby he [or she] may escape the extreme rigors of the penalty imposed by law for the offense of which he [or she] stands convicted.' [Citation.]" (People v. Tran (2015) 242 Cal.App.4th 877, 892.)
Disposition
The judgment (order denying motion to reduce conviction to a misdemeanor) is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J. We concur:
GILBERT, P. J.
TANGEMAN, J.
Raimundo Montes De Oca, Judge
Superior Court County of Santa Barbara
Miriam R. Arichea, under appointment by the Court of Appeal for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Zee Rodriguez, Supervising Deputy Attorney General, Paul S. Thies, Deputy Attorney General for Plaintiff and Respondent.