Opinion
E073817
03-06-2020
THE PEOPLE, Plaintiff and Respondent, v. MARIO CHRISTOPHER RABANALES, Defendant and Appellant.
Sandra Gillies, under appointment by the court Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI17001143) OPINION APPEAL from the Superior Court of San Bernardino County. Debra Harris, Judge. Affirmed. Sandra Gillies, under appointment by the court Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant and appellant, Mario Christopher Rabanales, appeals from the trial court's October 2, 2019 order denying his request to reduce his felony conviction for battery resulting in serious bodily injury (a wobbler offense) to a misdemeanor. (Pen. Code, § 17, subd. (b).) We affirm the challenged order.
Undesignated statutory references are to the Penal Code. --------
I. FACTS AND PROCEDURE
This is the second appeal defendant has filed in this superior court case. We have granted defendant's request to take judicial notice of our prior unpublished opinion in his first appeal. (People v. Rabanales (June 12, 2019, E069368) (Rabanales I).) The facts and procedural history are taken from Rabanales I.
On January 27, 2017, defendant and his wife were at a bar in Needles. Defendant joined an argument between two other bar patrons, R.A. and "Biz," and got into a scuffle with Biz. After the bar owner told defendant and Biz to leave, R.A. walked up and punched defendant in the face. A short time later, when defendant and R.A. were outside the bar, defendant walked up and punched R.A. in the face. R.A. fell backward into a wall, collapsed, and lost consciousness for several minutes. R.A. was taken to a hospital and received two stitches for a cut on his face. (Rabanales I, supra, LEXIS 3983 at *3.)
A jury convicted defendant in two counts: (1) simple assault, a misdemeanor (§ 240), as a lesser included offense of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4), count 1); and (2) battery resulting in serious bodily injury (§ 243, subd. (d), count 2). The jury found not true an allegation in count 1 that defendant personally inflicted great bodily injury on R.A. In count 2, the jury was instructed on simple assault and simple battery (§§ 240, 242) as lesser included offenses, but convicted defendant of the greater, charged offense. (Rabanales I, supra, LEXIS 3983 at *4.)
In a bifurcated trial, the jury found that defendant had a prior strike conviction for attempted murder. (§§ 664, 187.) The trial court denied defendant's motion to reduce his conviction in count 2 to a misdemeanor (§ 17, subd. (b)), and sentenced him to three years (the middle term) on count 2, doubled to six years based on his prior strike (§ 667, subds. (b)-(i)). The court imposed but stayed a 90-day term on count 1. (Rabanales I, supra, LEXIS 3983 at **1, 9.)
Defendant's sole claim on appeal in Rabanales I was that the trial court misapprehended the scope of its discretion to reclassify his conviction in count 2 as a misdemeanor, and sentence him accordingly. We agreed, vacated defendant's sentence, and remanded the matter with directions to determine whether to classify defendant's felony conviction in count 2 as a misdemeanor. (Rabanales I, supra, LEXIS 3983 at **2, 16.)
On remand, the trial court denied defendant's section 17, subdivision (b) motion, based on his felony criminal history and opportunities to limit or prevent the January 27, 2017 fight with R.A. Defendant's probation report showed he was born in 1982 and was 35 years old when he committed the offenses on January 27, 2017. (Rabanales I, supra, LEXIS 3983 at **5, 6.) He had an "extensive criminal history dating back to 2001," including a 2007 conviction for attempted murder, the basis of his prior strike. (Id. at *6.) Most recently, in December 2014, he was convicted of felony vandalism (§ 594, subd. (a)) and was sentenced to four years in state prison. (Rabanales I, supra, LEXIS 3983 at *6.) In October 2016, he was released on post release community supervision (PRCS) and was in compliance with the terms of his PRCS until he was arrested for his current offense on January 27, 2017. (Ibid.)
II. DISCUSSION
Appellate counsel has filed a brief presenting no argument for reversal but inviting this court to review the record for error in accordance with People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 (Anders). Defendant has not responded to this court's invitation to file a supplemental brief.
Appellate counsel has identified the following issue which might arguably support this appeal (Anders, supra, 386 U.S. at p. 744): whether the trial court abused its discretion in denying his motion to reduce his felony conviction for battery resulting in serious bodily injury (§ 243, subd. (d)) to a misdemeanor. Counsel notes that the jury acquitted defendant in count 1 of felony assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)) and convicted him of the lesser included offense of simple assault (§ 240). Counsel also points out that the evidence at trial suggested, "the victim had engaged in mutual combat before the charged battery."
We have considered appellate counsel's brief and have independently reviewed the entire record for all potential errors. (People v. Kelly (2006) 40 Cal.4th 106, 119.) We find no arguable error, including the potential error raised by appellate counsel.
As this court observed in Rabanales I, we review the trial court's exercise of its sentencing discretion to grant or deny a section 17, subdivision (b) motion for an abuse of discretion. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) "The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary." (Ibid.) The factors the court may consider in exercising its discretion to classify and punish a felony conviction for a wobbler as a misdemeanor include "those relevant to sentencing decisions, such as the circumstances of the offense, the defendant's appreciation of and attitude toward the offense, and the defendant's character as evidenced by the defendant's behavior and demeanor at the trial." (People v. Mullins (2018) 19 Cal.App.5th 594, 611.) In other words, in ruling on a section 17, subdivision (b) motion, the court may consider "the facts surrounding the offense and the characteristics of the offender." (People v. Tran (2015) 242 Cal.App.4th 877, 885.) We defer to the court's weighing of the relevant factors. (Alvarez, at p. 981.)
Here, the trial court reasonably weighed the relevant factors and did not abuse its discretion in denying defendant's section 17, subdivision (b) motion to reduce his felony conviction in count 2 for battery causing serious bodily injury (§ 243, subd. (d)) to a misdemeanor. The court denied the motion based on defendant's "felony history," "the nature of the injuries" to R.A., and defendant's conduct "surrounding" the offense. As the court noted, defendant inflicted serious injury on R.A. and had "several opportunities" to "prevent" or "limit" the fight, but he did not do so. Rather, after R.A. punched him inside the bar, he waited for R.A. outside the bar, then ran toward R.A. and punched R.A. in the face, causing R.A. to fall backward, lose consciousness, and require two stitches for a cut on his face. (Rabanales I, supra, LEXIS 3983 at *3.) In the words of the trial court, "it was not just a bar fight . . . it started in the bar and went outside."
As the court also pointed out, defendant had a history of committing felony offenses. Among other felony convictions, he had a 2007 conviction for attempted murder and a 2014 conviction for felony vandalism. He served nearly two years in state prison and was on PRCS for his felony vandalism conviction (§ 594, subd. (a)), when he committed his current offenses. (Rabanales I, supra, LEXIS 3983 at *5-6.) His felony criminal history dated back to 2001, when he was only 19 years old. (See Ibid.) He was age 35 when he committed the current offenses. Thus, on this record, the trial court did not abuse its discretion in denying defendant's section 17, subdivision (b) motion to treat his felony conviction for battery causing serious bodily injury (§ 243, subd. (d)) as a misdemeanor.
III. DISPOSITION
The October 2, 2019 order denying defendant's section 17, subdivision (b) motion to reduce his felony conviction, in count 2, for battery causing serious bodily injury, is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: CODRINGTON
Acting P. J. RAPHAEL
J.