Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Imperial County No. JCF17080, Juan Ulloa, Judge.
AARON, J.
I.
INTRODUCTION
Defendant Jose Pompa appeals from his conviction and sentence of one count of battery on a peace officer and one count of resisting an executive officer. Pompa contends that the trial court violated his right to the effective assistance of counsel when the court denied his attorney's motion to continue the start of the trial for one day. Pompa also contends that the trial court erred in instructing the jury, and that the court denied him due process by responding to a note from the jury requesting clarification without first providing him notice and holding a hearing. Pompa further asserts that the trial court abused its discretion when it relied on facts not found by the jury to deny him probation.
We conclude that the trial court did not violate Pompa's rights by denying his counsel's motion to continue the commencement of the trial. We further conclude that the trial court did not err in instructing the jury, and that to the extent the court may have erred in responding to a jury question without notifying defense counsel, Pompa suffered no prejudice. Finally, we conclude that the trial court did not abuse its discretion in denying Pompa probation. We therefore affirm the judgment of the trial court.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural background
On December 14, 2005, Pompa was charged with battery with injury on a peace officer (Penal Code, § 243, subd. (c)(2); count 1); resisting an executive officer (§ 69; count 2); and making criminal threats (§ 422; count 3).
All further statutory references are to the Penal Code unless otherwise specified.
On August 15, 2006, the court orally amended count 1 to charge a violation of section 243, subdivision (b), a misdemeanor, which does not require physical injury to the peace officer.
After a three-day trial, on October 2, 2006, a jury found Pompa guilty of battery on a peace officer and resisting an executive officer (counts 1 and 2). The jury found Pompa not guilty of making criminal threats. On January 31, 2007, the trial court sentenced Pompa to 16 months in state prison.
B. Factual background
On June 12, 2005, at approximately 12:30 a.m., off-duty Imperial County Narcotics Task Force Commander Michael Loyd and his date, Candy Hacegaba, entered a Ramada Inn complex in El Centro, California. Loyd and Hacegaba had attended a birthday party that evening. They entered the building intending to get coffee at a Denny's restaurant located inside.
Loyd and Hacegaba entered the hotel and walked to a common hallway that allowed access to both the Denny's restaurant and a bar called the Amigo Room. After walking down the hallway, Loyd noticed two men arguing in front of the door to the Amigo Room. The men began to punch each other.
Loyd yelled, "Police, break it up." He showed the men his badge and placed himself between them. Hacegaba went to the front desk of the Ramada Inn and asked the woman behind the counter to call 911. By this time, several people were in the hallway, including Pompa. Loyd observed Pompa hit one of the two men. Pompa knocked the man down and hit the man repeatedly. Loyd grabbed Pompa "behind the arms," identified himself as a police officer, and lifted Pompa off of the man. Loyd again identified himself as a police officer as Pompa started to stand up. An unidentified person then hit Loyd in the back of the head. Loyd turned to his right to see who had hit him, and, as he did so, Pompa punched Loyd on the left side of his jaw.
Hacegaba remained in the hotel lobby during the altercation and had difficulty seeing what occurred. She did not see Pompa hit Loyd.
Loyd told Pompa that he was under arrest. Pompa responded that he was not going to be arrested and that he was leaving. Loyd told Pompa that he could not leave. Despite being told he could not leave, Pompa, joined by two women (one of whom was later identified as Pompa's wife), started to walk backward out of the hallway toward the hotel lobby. Loyd again told Pompa that he was under arrest and that he could not leave. Pompa's wife began to yell at Loyd and told Loyd that he could not arrest Pompa because Loyd was off duty. Loyd told Pompa's wife not to interfere, but she continued to yell at him and began pushing him. Loyd eventually pushed her back. Pompa, his wife, and the second woman then continued walking out of the lobby.
El Centro Police Sergeant Teresa Quinn responded to a 911 call from the hotel. Quinn arrived at the hotel and saw Pompa and two women exit the hotel, followed by Loyd. Sergeant Quinn took a brief statement from Loyd. The two women who were accompanying Pompa approached Quinn and told her that they had been involved in an incident with Loyd. Sergeant Quinn instructed another police officer, Andreas Curiel, to speak with the two women and Pompa. Pompa told Curiel that he, his wife, and a friend had noticed a fight in progress as they were approaching the Amigo room. Pompa said that someone punched him, so he began "swinging at who[m]ever he could hit." Pompa also said that when he saw Loyd's badge, he backed off, and that he never hit Pompa.
Officer Jesus Viesca arrested Pompa in the parking lot of the complex. Before Pompa was taken away from the scene, he said to Loyd, "'I know who you are. I know you work at the task force. The next time I see you I'm coming at you, and it's going to be different.'"
Sergeant Quinn examined Loyd, and did not see any injuries on his chin. Pompa had minor scrapes and cuts on his hands, primarily on his knuckles. When asked at trial whether he had "any alcoholic beverages to drink that day," Loyd responded, "Yes." Loyd testified that he consumed alcoholic drinks between approximately 6:30 and 8:00 p.m. on the evening of June 11 while at the birthday party, and that he ate dinner at the party sometime after 8:00 p.m.
Loyd was not asked to identify the amount of alcohol he drank that evening. Hacegaba testified that Loyd drank two beers at the party, and then drank only water.
III.
DISCUSSION
A. The trial court did not abuse its discretion in denying a request to continue the trial
Pompa contends that the trial court abused its discretion in denying his September 19 motion for a continuance, thereby violating his right to the effective assistance of counsel. According to Pompa, the trial court's denial of his attorney's request for a continuance prevented him from being able to present a defense to the battery charge. Specifically, Pompa claims that the denial of a continuance prevented his counsel from being able to locate "a witness to Commander Loyd's drinking at the bar just moments before the confused brawl." We conclude that the trial court neither violated Pompa's rights nor abused its discretion by denying defense counsel's request for an additional one-day continuance of the trial readiness conference.
1. Additional background
Pompa's public defender made several motions to continue the trial throughout the course of the pretrial proceedings. Defense counsel first moved for a continuance on April 14, 2006, seeking to continue the trial from May 2, 2006 to July 11, 2006. Counsel explained that he had been assigned the case on April 3, and that he needed more time to adequately investigate the case, interview witnesses and obtain discovery. Despite the prosecutor's objection, the court granted a continuance to June 20, 2006.
On June 12, 2006, the trial court granted a defense request for another continuance, to August 15, 2006. On August 14, the trial court granted defense counsel a third continuance, to September 12, 2006.
At the trial readiness conference on September 14, 2006, defense counsel requested that the matter be trailed to September 18. The court granted the request. On September 18, the prosecutor requested that the readiness conference be trailed for one additional day, and the court granted this request as well.
On September 19, 2006, the prosecutor was ready to proceed. He informed the court that he had provided defense counsel with three supplemental reports. Defense counsel then requested another one-day continuance. Counsel explained that, according to the prosecutor's report, a witness whom his investigator had previously interviewed had made statements to the prosecutor that the witness had not made to the defense investigator. The new statements involved the witness saying that another Denny's employee had told him "that there was an off-duty officer with a gun drinking in the bar." Defense counsel was "wondering if this is Officer Loyd or not."
The trial court denied the request. The court noted that the defense investigator could interview the witness while the trial moved forward. The trial court told defense counsel, "You had knowledge of the witness, you've had your investigator talk to her. You can do a follow-up, you can do whatever it is you need to do."
The court heard motions in limine on the afternoon of September 19. Jury selection began on September 21. Opening statements began on September 27, 2006.
2. Analysis
We review a trial court's denial of a motion for a continuance for an abuse of discretion. (People v. Mickey (1991) 54 Cal.3d 612, 660 (Mickey).) A court may grant a continuance in a criminal case only for good cause. (§ 1050, subd. (e).) The trial court has broad discretion to determine whether good cause exists to grant a request to continue a trial date. (Id.; see also People v. Frye (1998) 18 Cal.4th 894, 1012.) A showing of good cause requires a demonstration that counsel and the defendant have prepared for trial with due diligence. (Mickey, supra, 54 Cal.3d at p. 660.) A trial court may not exercise its discretion in ruling on requests for continuances so as to deprive the defendant or his attorney of a reasonable opportunity to prepare for trial. (People v. Sakarias (2000) 22 Cal.4th 596, 646.)
In our view, there was no abuse of discretion here. Defense counsel had many months to prepare for trial, and the court had granted a number of continuances prior to this particular instance. As the trial court noted, there was nothing to prevent the defense investigator from interviewing the witness again even as the parties moved forward with the trial. Opening statements did not begin until eight days after the trial readiness conference.
In addition, any additional investigation that might have been required would not have been particularly complex or time-consuming. The defense investigator had already interviewed the witness who made the statement in question. The investigator needed only to contact the witness to ask whether the witness or one of his employees had seen Loyd drinking in the bar on the night Pompa was arrested. Even if the defense would have had to locate and interview the employee, they had a week before opening statements began to seek out the witness. In light of this fact, it is highly unlikely that the trial court's decision not to grant a one-day continuance was the reason defense counsel was unable to present a witness who could testify that Loyd was drinking at the bar in the complex that night.
Even if we were to assume for argument's sake that defense counsel's failure to re-interview the witness and locate a possible additional witness was caused by the trial court's refusal to grant a one-day continuance, it is not clear that the purported evidence would have proven particularly useful to Pompa's defense. There was no suggestion that a witness had actually seen Loyd in the bar. Rather, there was simply the possibility that some unidentified employee might have seen an unidentified off-duty officer in the bar. There were no other witnesses who testified to having seen Loyd in the bar that night.
Pompa's claim that the trial court prevented him from finding and presenting evidence at trial is speculative, at best. Pompa has not demonstrated that the trial court's decision to move forward with the trial readiness conference rather than continue the proceedings for one day is the reason Pompa's defense team could not obtain the evidence it hoped to present. We conclude that in these circumstances, the trial court did not deprive defense counsel of a reasonable opportunity to prepare a defense by refusing to continue the trial readiness conference for one more day.
B. There was no reversible instructional error
Pompa raises a number of contentions related to the trial court's instructions to the jury. Pompa first argues that the trial court erred in failing to instruct the jury sua sponte regarding the issue of self-defense with respect to the battery charges. Second, Pompa contends that the trial court failed to inform the jury that the People had the burden to prove beyond a reasonable doubt that his arrest was lawful in order to find Pompa guilty of the battery. Third, Pompa asserts that the trial court failed to instruct the jury sua sponte that if Loyd was intoxicated at the time of the arrest, he could not have been acting within the scope of his duties. Fourth, Pompa contends that the trial court erred in instructing the jury pursuant to section 69, in that the court failed to adequately enumerate the elements of the offense, but instead gave the instruction as "one long sentence." Pompa further argues that the instruction concerning the elements of section 69 was erroneous because the court informed the jury that battery on an officer, in violation of section 143, subdivision (c)(2), was a misdemeanor. Pompa maintains that the court's informing the jury that battery on an officer was a misdemeanor allowed the jury to find that his arrest was lawful because Loyd was placing Pompa under arrest for this offense. Pompa points out that section 143, subdivision (c)(2) has been repealed. He further argues that because the jury had not been instructed regarding a violation of that section, the court's reference to this section led the jury to presume that he had in fact committed a misdemeanor. Finally, Pompa asserts that the trial court violated his right to trial by jury and his right to due process by sending an "indecipherable" response to a question the jury posed, without first giving Pompa notice or an opportunity to be heard.
1. The trial court did not err in not giving a self-defense instruction
The trial court did not have a duty to instruct on self-defense, for a number of reasons: Pompa did not rely on the defense, a theory of self-defense was inconsistent with Pompa's proffered defense, and there was no substantial evidence to support the self-defense theory. "[A] trial court's duty to instruct, sua sponte, or on its own initiative, on particular defenses is more limited [than the duty to instruct on a lesser included offense], arising 'only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' [Citations.]" (People v. Barton (1995) 12 Cal.4th 186, 195.) "Substantial evidence is evidence sufficient to 'deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive. [Citation.]" (Id. at p. 201, fn. 8.)
Pompa did not rely on self-defense as a defense at trial. Rather, Pompa's position was that he never hit Loyd at all. A self-defense instruction would have been inconsistent with Pompa's claim that he never hit Loyd. Further, Pompa cites to no evidence to support his assertion on appeal that a "reasonable version of the events include a scenario where Mr. Pompa was attempting to defend himself from the other individuals, or one in which he was acting in defense of one of the individuals." Our review of the record does not support Pompa's assertion; there was no evidence that anyone hit or threatened Pompa at any time, and there was no evidence that Loyd hit Pompa or otherwise physically threatened Pompa before Pompa struck Loyd. Pompa's theory of the case and the state of the evidence did not require a self-defense instruction.
2. The trial court did not err in failing to instruct that "the arrest" was lawful
The trial court did not err in failing to instruct the jury sua sponte that they must find that "the arrest was lawful in order to find Mr. Pompa guilty of Penal Code section 243." First, there was no evidence that Loyd had arrested or was attempting to arrest anyone at the time Pompa hit him. Because there was no arrest taking place, there was no reason to instruct the jury that in order to find Pompa guilty of battery on a peace officer, they would have to find that "the arrest was lawful." Even if such an instruction had been required, the instructions the court gave to the effect that the jury had to find that Loyd was a peace officer "performing the duties of a Peace Officer," and that "[a] peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties," sufficiently covered this point. The jury was further instructed that "[t]he People have the burden of proving beyond a reasonable doubt that Mike Loyd was lawfully performing his duties as a peace officer. . . . [¶] A peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties. [¶] A peace officer may legally arrest someone if he or she had probable cause to make the arrest." The jury was thus adequately instructed as to what it had to find true beyond a reasonable doubt in order to find Pompa guilty of battery on a peace officer.
3. The trial court did not err in failing to instruct the jury concerning the effect of an officer's intoxication
Pompa contends that the trial court "erred when it omitted any reference to the scope of an officer's duties when he or she may be intoxicated."
As an initial matter, we conclude that Pompa forfeited this argument by failing to challenge the court's instruction as incomplete. (See People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012 ["'Generally, 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'"] (Hudson).) Even if we were inclined to consider the challenge, we would reject it on the merits because there was no evidence that Loyd was "intoxicated" at the time the events in question occurred. Thus, there would have been no reason for the court to make any mention of the possible effect of an officer's intoxication on his ability to perform his duties.
4. The trial court did not err in instructing the jury with regard to section 69
Pompa argues that "[t]he trial court's description of Penal Code section 69 . . . was one long sentence without enumeration." According to Pompa, the trial court's reading of CALCRIM No. 2652 ─ the instruction pertaining to an offense committed under section 69 ─ violated the requirement that the trial court enumerate with clarity the elements of an offense, and thereby improperly "de-emphasized the importance of the requirement that the resistance was forceful or violent." Pompa further contends that the trial court should have instructed the jury as to what level of force was necessary to constitute the offense of resisting an executive officer.
Pompa forfeited this argument by failing to request further clarification in the trial court. (See Hudson, supra, 38 Cal.4th at pp. 1011-1012.) Moreover, the argument is wholly unfounded. Even if we were to presume that the trial court did not adequately articulate the elements necessary for a finding of guilt as to the offense of resisting an executive officer in its oral instructions to the jury, the court provided the jury with a set of written instructions prior to the jury beginning its deliberations. Those written instructions include all of the elements of the offense of resisting an executive officer, separately set forth and numbered.
By presuming deficiencies in the trial court's oral instruction, we do not intend to suggest that the trial court did not sufficiently orally instruct the jury as to the elements of the offense. Rather, we simply need not address that particular issue because Pompa's argument fails, regardless of the determination of that issue.
Further, "[a]lthough trial courts, generally, have a duty to define technical terms that have meanings peculiar to the law, there is no duty to clarify, amplify, or otherwise instruct on commonly understood words or terms used in statutes or jury instructions. 'When a word or phrase "'is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request.'" [Citations.] A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning. [Citation.]' [Citation.]" (People v. Griffin (2004) 33 Cal.4th 1015, 1022-1023.) There is nothing in the statute to suggest that the term "force" in section 69 is to be given any specialized legal definition different from its ordinary meaning. The court was therefore not required to provide the jury with a special definition of the term.
5. Although the court referred to an incorrect penal code section number, the error was harmless
Pompa contends that the trial court erred "when it indicated in its instructions that battery on a police officer under Penal Code section 143(c)(2) was a misdemeanor so as to meet the element of lawful arrest." Pompa argues that this is likely to have confused the jury in its determination of his guilt for resisting an executive officer (§ 69) because he was not charged under section 143, subdivision (c)(2). He further suggests that the instruction "urge[d] the jury to believe the element ha[d] been established."
As part of the instruction on the issue of whether Loyd was "lawfully performing his duties as a peace officer" for purposes of considering whether the elements of resisting an executive officer in the performance of his or her duties were met, the trial court instructed:
"In order for an officer to lawfully arrest someone without a warrant for a misdemeanor or infraction, the officer must have probable cause to believe that the person to be arrested committed a misdemeanor or infraction in the officer's presence. [¶] Battery on a peace officer, a violation of [P]enal [C]ode section 143 (c)(2) is a misdemeanor."
The trial court's reference to section 143 appears to be a typographical error because the offense of battery against a peace officer is enumerated in section 243, subdivision (c)(2). However, Pompa forfeited this argument by failing to request clarification or a different instruction in the trial court. (See Hudson, supra, 38 Cal.4th at pp. 1011-1012.) Even if Pompa had not forfeited this argument, it is nevertheless unavailing because there is no reason to conclude that the court's reference to section 143, subdivision (c)(2) had any effect on the jury's decision-making process.
It is clear from the instruction that the reference was to the offense of battery on a peace officer. The jurors had already been instructed that they would have to decide the issue of Pompa's guilt as to that offense, but without reference to the number of the statutory provision. Because the jury was not given the number of the statute under which it is unlawful to commit a battery against a peace officer, it makes no difference that the court thereafter identified the offense by reference to a statute number different than the one for the offense of battery against a peace officer. As long as the jury was informed that battery on a peace officer is a misdemeanor, the jury had sufficient information to determine whether Loyd had probable cause to attempt to arrest Pompa.
Contrary to Pompa's contention, the instruction did not "urge" the jury to believe that Pompa had committed the misdemeanor. The instructions were clear that the jury was to consider whether the officer had probable cause to believe that Pompa had committed a battery for purposes of determining whether Loyd was "performing the duties of a Peace Officer." There was no need for the jury to conclude that Pompa had actually committed a misdemeanor in order for it to determine that Loyd had probable cause to believe Pompa had committed a misdemeanor or infraction. The instruction created no presumption of guilt.
6. Pompa has not demonstrated that the trial court erred in responding to a question from the jury; to the extent the court may have erred, any such error was harmless
Pompa challenges the manner in which the trial court handled a question from the jury, arguing both that the court's response was "incoherent" and that the court failed to give Pompa notice of the jury's question or to provide him an opportunity to be heard.
Pompa asserts first that the trial court did not give him notice of the question or an opportunity to have input into the response. However, the record does not clearly demonstrate that the parties were not given notice. The minutes from that day state in relevant part, "3:23 p.m. court recessed. [¶] The following proceedings are unreported: [¶] 4:00 p.m. the bailiff delivers the following note (marked as Juror Note #1) to the Court: Clarification of the people fighting in the hallway was one of them Pompa? 09/29/06. Signed by the foreperson. JUDGE'S RESPONSE; The existence of any fact and proven, its significant is for the jury to determine." (Errors in original.) A copy of the jury's note shows a handwritten response below the heading "JUDGE'S RESPONSE" that states, "The existence of any fact, and proven, its significance is for the jury to determine." The note is signed by the judge, dated September 29, 2006, with the time of the judge's signature identified as 4:49 p.m.
From what is available from the record provided on appeal, there is no affirmative indication that the court did not notify counsel of the jury's note. In instructing the jury, the court admonished, "To have a complete record of this trial, it is important that you not communicate with me except by a written note. If you have questions, I will talk with the attorneys before I answer so it may take some time." The amount of time that passed between the time the jury sent out its note and the time the judge responded leaves open the possibility that the court did provide notice to counsel. Other than his assertions, Pompa has offered nothing else to demonstrate that notice was actually not given.
There is no reason to presume that the trial court did not discuss the jury's question with the attorneys, as the court told the jury it would. "It is a basic presumption indulged in by reviewing courts that the trial court is presumed to have known and applied the correct statutory and case law in the exercise of its official duties. [Citations.]" (People v. Mack (1986) 178 Cal.App.3d 1026, 1032.) An "[a]ppellant has the burden of showing error by an adequate record." Pompa has failed to sustain that burden as to this claim. (Ibid.)
Pompa could have requested a settled statement pertaining to this issue. "In criminal matters, a settled statement may be requested when 'a party learns that any portion of the oral proceedings cannot be transcribed . . . .' [Citation.]" (People v. Bradford (2007) 154 Cal.App.4th 1390, 1418, fn. 15 (Bradford).) "'[T]he purpose of a settled statement is to provide the appellate court with a record of trial court proceedings for which there is no formal contemporary record, commonly because the court reporter's notes have been lost [citation] or because a court reporter was not present to record the proceedings. [Citation.] In other words, the settled statement is used for filling "gaps in the [appellate] record." [Citation.]' [Citation.]" (Ibid.)
Further, although the court's response to the jury's note was imperfect, the instruction contained sufficient information for the jury to deduce that the court was simply reinstructing the jury that it was to make determinations of fact. The court had previously instructed the jury with CALCRIM No. 200, which included the admonition, "You must decide what the facts are. It is up to you, exclusively, to decide what happened, based only on the evidence that has been presented to you in this trial." The court also instructed the jury with CALCRIM No. 222 regarding evidence. That instruction began, "You must decide what the facts are in this case." It appears that the court's response was missing an "if," such that the instruction was intended to read, "The existence of any fact, and [if] proven, its significance is for the jury to determine." However, the instruction as written, in combination with the court's previous admonition that it was the jury's duty to determine the facts, was sufficient to notify the jury that the court was simply reiterating that it was up to the jury to decide what occurred on the night in question.
Even if the trial court did not give the attorneys notice of the jury's note, the court's response did not prejudice Pompa in any way. Clearly, the trial court should avoid answering a jury's question without first notifying the parties and giving counsel an opportunity to provide input into the response. (See Bradford, supra, 154 Cal.App.4th at p. 1413.) Nevertheless, this particular communication between the judge and the jury was not prejudicial because the court's response properly stated the law, despite its grammatical failings. (See People v. Jennings (1991) 53 Cal.3d 334, 382-385 [judge's ex parte response to a juror's question about the effect of "'a[n] 11 to 1 decision on something'" was not prejudicial because "nothing in the court's admonition to the jury was an incorrect statement of law"].) The court correctly informed the jury that it was for the jury to decide the material facts of the case, including whether Pompa was one of the men fighting. Thus, any objection defense counsel might have made would have been properly overruled, and there is no reply that could have been "'"more favorable to the defendant's case."'" (Id. at p. 384.) Because the trial court's response was not erroneous, it "did not implicate defendant's substantial rights." Thus, even if the response was provided without notice to the parties, such error was harmless under any standard of prejudice. (Id. at p. 385.)
C. The trial court did not abuse its discretion in denying Pompa probation
Pompa contends that the trial court acted arbitrarily and capriciously in denying him probation. Pompa argues that the court "failed to look at the merits" of his case and failed "to consider rehabilitation." Pompa also asserts that the trial court exceeded its discretion by "cit[ing] several factors not found by a jury."
"The trial court enjoys broad discretion in determining whether a defendant is suitable for probation. [Citations.] The trial court also has broad discretion in evaluating the factors in aggravation and mitigation in making that determination. [Citation.] To establish abuse, the defendant must show that, under the circumstances, the denial of probation was arbitrary or capricious. [Citations.] A decision denying probation will be reversed only on a showing of abuse of discretion. [Citation.]" (People v. Lai (2006) 138 Cal.App.4th 1227, 1256-1257.)
Rule 4.414 provides the criteria a court is to consider when making the decision whether to grant or deny probation. Pompa argues that the trial court failed to give proper credit to the "volume of mitigating factors" his attorney submitted to the court, which included "positive findings by social services, records of employment, and a decade of paid taxes," while instead finding the existence of aggravating factors that Pompa claims are not supported by the evidence. However, even if there may have been several mitigating factors that the court could have considered to weigh in favor of probation, the existence of mitigating factors does not necessarily mean that the trial court abused its discretion in deciding against granting probation. As long as the trial court's probation decision was not arbitrary or capricious, that decision must stand.
Rule 4.414 provides:
Here, the trial court acted reasonably in denying probation. The court acknowledged possible mitigating circumstances, stating, "The defendant deserves, I guess, consideration for the fact that he has been ten years without a conviction. What that means in terms of whether he's a danger to society or not should best be judged by his conduct in this instance." The court concluded that Pompa's crimes were relatively serious. The court commented that Pompa had made a threatening statement to Loyd to the effect that he knew Loyd was on the task force and that "it will be different" the next time the two meet. Although the trial court observed that this statement was "not sufficient to constitute a criminal threat," the fact that Pompa made the comment and the fact that Pompa "struck a defenseless person who was being, if not detained, at least assisted or involved with a person who the defendant knew to be a police officer and chose then to strike that person, which then led to the battery on a peace officer," indicated to the court that Pompa "has no respect for people."
The trial court noted that the jury had "appropriately found the defendant not guilty" of making a criminal threat based on the statement.
The court reiterated this concern in mentioning Pompa's own statement to a probation officer in which Pompa explained that he punched "'the guy that was fighting with his brother-in-law,'" even though Pompa's brother-in-law was not in danger and did not need assistance. In view of the circumstances surrounding the offense, the trial court concluded, "No, I don't think that Mr. Pompa has demonstrated that he is a model citizen. I don't think that he has demonstrated that he has turned his life around. I don't think he deserves to be on probation."
There is substantial evidence to support the trial court's conclusion that Pompa's offenses were of a serious nature. Pompa acknowledged that he hit another person, in addition to Commander Loyd, and that he was not defending himself or his relative when he became involved in the fight. After becoming involved in the fight, Pompa attempted to escape rather than take responsibility for what had occurred, and he made a threatening statement to Loyd before he was removed from the scene.
Relying on Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856 (Cunningham), Pompa further suggests that the trial court abused its discretion by citing to "several factors not found by a jury," in denying probation. However, "'[t]he circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance of the evidence. [Citations.]' [Citation.]" (People v. Weaver (2007) 149 Cal.App.4th 1301, 1313.) There is no authority for Pompa's argument to extend the holding of Cunningham, which relates to California's determinate sentencing law, to this situation. Cunningham prohibits courts from imposing a sentence in excess of the "statutory maximum" based on facts not found by a jury. The question whether to grant or deny probation does not implicate Cunningham, since the court is not exceeding the "statutory maximum" by denying probation. Based on this record, the trial court acted reasonably in denying Pompa probation.
IV.
DISPOSITION
The judgment of the trial court is affirmed.
WE CONCUR: BENKE, Acting P. J., HALLER, J.
"(a) Facts relating to the crime include:
(1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime;
(2) Whether the defendant was armed with or used a weapon;
(3) The vulnerability of the victim;
(4) Whether the defendant inflicted physical or emotional injury;
(5) The degree of monetary loss to the victim;
(6) Whether the defendant was an active or a passive participant;
(7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur;
(8) Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant; and
(9) Whether the defendant took advantage of a position of trust or confidence to commit the crime.
(b) Facts relating to the defendant include:
(1) Prior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct;
(2) Prior performance on probation or parole and present probation or parole status;
(3) Willingness to comply with the terms of probation;
(4) Ability to comply with reasonable terms of probation as indicated by the defendant's age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors;
(5) The likely effect of imprisonment on the defendant and his or her dependents;
(6) The adverse collateral consequences on the defendant's life resulting from the felony conviction;
(7) Whether the defendant is remorseful; and
(8) The likelihood that if not imprisoned the defendant will be a danger to others."