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People v. Ortiz

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX
Jan 24, 2012
2d Crim. No. B231042 (Cal. Ct. App. Jan. 24, 2012)

Opinion

2d Crim. No. B231042 Super. Ct. No. 2009001506

01-24-2012

THE PEOPLE, Plaintiff and Respondent, v. JESUS SANDOVAL ORTIZ, Defendant and Appellant.

Christina Alvarez Barnes, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Noah P. Hill, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Ventura County)

Jesus Sandoval Ortiz appeals the judgment entered after a jury found him guilty of possession of a firearm by a misdemeanant (Pen. Code, former § 12021, subd. (c)(1), now § 29805), possession of a firearm by a person subject to a restraining order (former § 12021, subd. (g), now § 29825, subd. (b)), driving under the influence of alcohol or drugs (Veil. Code, § 23152, subd. (a)), and driving on a suspended license (Veh. Code, § 14601.1, subd. (a)). The trial court sentenced him to two years in state prison. Appellant contends that his sentence must be vacated and the matter remanded for resentencing because the court abused its discretion in finding that appellant was ineligible for probation absent unusual circumstances. We affirm.

All further undesignated statutory references are to the Penal Code.

Appellant was also charged with making a criminal threat against victim Tim Mauricio (§ 422). The jury was unable to reach a verdict as to that charge, and it was subsequently dismissed. Appellant was found not guilty on the charge of driving with a blood alcohol level of .08 or higher (Veh. Code, § 23152, subd. (b)).

STATEMENT OF FACTS

On the night of January 12, 2009, Oxnard District Safety Officers Tim Mauricio and Jesus Pantoja were patrolling on foot in downtown Oxnard. Both officers approached appellant as he sat in his parked SUV and asked him to turn down his music. Appellant complied and asked them if they were police officers. Mauricio explained that they were not police officers, but rather district safety officers. Appellant asked if they wanted marijuana, methamphetamine, or cocaine. The officers declined.

Oxnard District Safety Officers are not peace officers. They carry only cell phones and pepper spray, and contact the police in the event of an incident or disturbance. Their uniform consists of a polo shirt with an image of a badge and the words "District Safety."

Mauricio noticed that both appellant and his companion, who was sitting in the front passenger seat, had open containers of beer in their laps. After Mauricio advised appellant to leave the area, appellant became irate and began yelling. Mauricio and Pantoja started to walk away as Pantoja called the police department on his cell phone. Appellant yelled, "If you're calling the cops, I'm going to fucking kill you." Appellant repeated the threat several times.

Appellant drove his SUV out of the parking space and pulled up next to Mauricio and Pantoja as they were walking away. Appellant continued to yell at the men and threaten to kill them. Appellant stopped his vehicle next to the officers. Pantoja, who was standing near the driver's side window of appellant's vehicle, saw appellant raise a firearm from his waist and display it to him. Appellant's companion said, "put the gun down" or "don't do it," and knocked appellant's hand out of Pantoja's view.

An audio recording of Pantoja's call to the police was played for the jury. During that call, Pantoja said that he had not actually seen a gun. Pantoja also told the dispatcher he was "not sure if it was a gun or not" and that "a drunk guy" had "tried pulling something out and then one of his buddies got it." At trial, Pantoja testified that he had seen a gun and offered that he may not have answered all of the dispatcher's questions correctly because the call took place as the events were happening and he was nervous and scared.

Pantoja told Mauricio that appellant was armed with a firearm. Mauricio, who was standing toward the rear of appellant's vehicle, began writing down appellant's license plate number. As he was doing so, appellant put his car in reverse and backed up toward Mauricio. Mauricio, who believed that appellant was trying to hit him, moved onto the sidewalk. Appellant stopped his vehicle, got out, and approached Mauricio with his right hand behind his back. Mauricio backed up to the window of a billiards hall and knocked on it with his palm. The owner of the billiards hall came out holding a taser.

The police arrived shortly thereafter. Appellant complied with the officers' order to get down on the ground and he was taken into custody. His companion was also ordered out of the vehicle and taken into custody. Appellant did not have a firearm on his person at the time of his arrest. When his vehicle was searched, a loaded .45-caliber semiautomatic handgun was found on the front passenger side floor. As appellant sat handcuffed on the curb, he told Pantoja that he would kill him tomorrow or whenever he got out of jail.

Field sobriety tests conducted at the scene indicated that appellant was impaired and unable to safely operate a motor vehicle. Two breathalyzer machine tests conducted at the police station, which indicated respective blood alcohol levels of .16 and .18, were deemed invalid. A third test was not performed.

DISCUSSION

Appellant contends he is entitled to a new sentencing hearing because the court erroneously concluded he was ineligible for probation absent unusual circumstances pursuant to section 1203, subdivision (e)(2). We disagree.

We review a trial court's decision to grant or deny probation for an abuse of discretion. (People v. Ferguson (2011) 194 Cal.App.4th 1070, 1091; People v. Superior Court (Du)(1992) 5 Cal.App.4th 822, 831.) The discretion to grant or deny probation is broad and we may not substitute our judgment for the judgment of the trial judge. (People v. Stuart (2007) 156 Cal.App.4th 165, 178-179.) The burden is on the party attacking the sentence to clearly show that the sentencing decision was arbitrary or irrational. (Id. at p. 179.) We will not set aside the trial court's decision to impose a particular sentence unless such a showing is made. (Ibid.)

"'The circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance of the evidence. [Citations.]' [Citation.] Accordingly, in determining whether a trial court abused its discretion by denying probation, we consider, in part, whether there is sufficient, or substantial, evidence to support the court's finding that a particular factor was applicable. [Citation.]" (People v. Weaver (2007) 149 Cal.App.4th 1301, 1313.)

"On a silent record, the 'trial court is presumed to have been aware of and followed the applicable law' when exercising its discretion. [Citations.] The appellate court cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of its discretion. [Citations.]" (In re Jacob J. (2005) 130 Cal.App.4th 429, 437-438, disapproved on another point in In re Julian R. (2009) 47 Cal.4th 487, 499.) Moreover, "complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott (1994) 9 Cal.4th 331, 356.)

The trial court adopted the probation department's finding that appellant was conditionally ineligible for probation pursuant to section 1203, subdivision (e)(2), which states: "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 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." In doing so, the court rejected appellant's claim that the statute did not apply based on the fact that the jury had failed to reach a verdict on the charge of making a criminal threat against Mauricio. The court went on to conclude: "I don't find that there are any interest of justice criteria that are satisfied so probation is going to be denied."

Appellant asserts that the court "misunderstood the scope of its discretion" to grant or deny probation because it "mistakenly believed" the matter was governed by subdivision (e)(2) of section 1203. He alternatively argues that the record does not support the court's decision to deny probation in accordance with subdivision (e)(2) of section 1203 because he "did not use a gun or attempt to use one against a person in the perpetration of a crime for which he was convicted" and the jury acquitted him of the charge of making criminal threats against Mauricio. For the first time in his reply brief, he further claims the court erred "by solely relying on the probation report's recommendation and not making a factual finding supporting his decision to render judgment under the statute's terms." None of these claims has merit.

Contrary to appellant's contention, the court was not bound by the jury's verdicts in implicitly finding that appellant had used or attempted to use a deadly weapon upon another person in connection with the crimes of which he was convicted, as contemplated in subdivision (e)(2) of section 1203. (People v. Brewster (1969) 276 Cal.App.2d 750, 754 ["It is the function of the court to determine the facts relevant to the fixing of probation and, in the exercise of its discretion, to determine whether probation shall be granted or denied"]; see also United States v. Watts (1997) 519 U.S. 148, 157 ["[A] jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence"].)

Moreover, the record is sufficient to support the court's finding. Appellant was convicted of possessing a firearm. Evidence presented at trial demonstrates that appellant threatened to kill Pantoja as he raised a loaded firearm from his waist and displayed it to Pantoja at close range. The gun only disappeared from view when appellant's companion knocked his hand out of the way and told him, "don't do it." Shortly before denying probation and sentencing appellant to state prison, the court also stated its belief that appellant would have been found guilty of the charge of making a criminal threat but for the fact that the prosecutor "didn't charge the right victim." The court could further infer from the evidence that appellant intended to fire the weapon at Pantoja and would have done so if his companion had not intervened.

To the extent appellant complains that the court failed to make express findings or otherwise articulate its reasons for denying probation, the claim is forfeited because it was not raised below. (People v. Scott, supra, 9 Cal.4th at p. 356.) On this record, there is simply no basis for us to conclude the trial court acted irrationally or arbitrarily in determining that appellant was ineligible for probation absent unusual circumstances as contemplated in subdivision (e)(2) of section 1203. Appellant's claim to the contrary accordingly fails.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J. We concur:

GILBERT, P.J.

YEGAN, J.

Charles W. Campbell, Judge

(Retired judge of the Ventura Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
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Superior Court County of Ventura

Christina Alvarez Barnes, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Noah P. Hill, Deputy Attorney General, for Plaintiff and Respondent.


Summaries of

People v. Ortiz

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX
Jan 24, 2012
2d Crim. No. B231042 (Cal. Ct. App. Jan. 24, 2012)
Case details for

People v. Ortiz

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JESUS SANDOVAL ORTIZ, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX

Date published: Jan 24, 2012

Citations

2d Crim. No. B231042 (Cal. Ct. App. Jan. 24, 2012)