Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Humboldt County Super. Ct. Nos. CR060583, CR062661, CR062704
McGuiness, P.J.
Faced with several charges arising from a violent attack on his estranged wife, appellant Roderick Michael Rivas pleaded guilty to attempted murder and first degree burglary and admitted an enhancement for personal use of a deadly weapon. Pursuant to a negotiated disposition, his sentence was capped at six years imprisonment, and appellant received a six-year sentence. On appeal, appellant contends the trial court erred by refusing to consider his previous good conduct and community standing in determining his eligibility for probation. We affirm the judgment.
Because the case was resolved by a plea, facts about the offense are derived from the probation report.
Appellant had heard rumors that his estranged wife, identified only as Jane Doe, was having an affair with her coworker Nick Deleon. Two to three years earlier, appellant and Doe suspected Deleon of sexually assaulting their daughter. Although appellant and Doe had been together for 20 years and had four children, appellant had recently moved out of the family home and was living in his van. Early in the morning on May 12, 2006, appellant confronted Doe as she arrived home from work. They argued, and appellant told Doe he would fight for her and wanted to fight Deleon “ ‘man to man.’ ” He also told Doe that if he could not have her he would disfigure her and kill the children. Appellant then left, but he continued thinking of how he planned to kill Doe and their three daughters. He felt Doe did not respect him and was lying to him about her relationship with Deleon. Appellant later told the police he intended to kill his children because he did not want them “to be raised in the ‘system’ ” if he killed Doe and was sent to prison. He decided to return to the house later that day and strangle Doe and his daughters.
Appellant arrived at Doe’s residence at 11:00 a.m. He searched Doe’s vehicle in vain for evidence of Deleon but then found a t-shirt in the garage he believed belonged to the man. Appellant also found some rope, from which he cut a six-foot length. He grabbed an ice pick from the garage, pried open a locked interior door, and entered the house. Appellant searched the house for signs of Deleon, again without success. The master bedroom door was locked, and appellant heard the shower running in the bathroom. He waited in the hallway, and when Doe emerged from the bedroom he approached, put the rope around her neck, and pulled her face-down onto the floor. Although Doe was struggling beneath him and at one point got her fingers under the rope that was crossed around her neck, appellant stayed on top of her, cursing her, and kept putting pressure on the rope. Eventually, Doe went limp, and appellant released the rope. After he did, Doe took a deep, gasping breath and pleaded with appellant for her life. Appellant told her, “ ‘I can’t let you live, you’ll call the cops.’ ” He then put the rope around her neck again and resumed strangling her, but each time he released the pressure Doe pleaded with him to stop. She told him the children would be home soon, and he responded that they would die too. Eventually, when appellant tired from the struggle, Doe freed herself. The pair continued arguing until appellant pushed Doe face-down onto the bed and resumed strangling her. When Doe freed herself from the rope again and tried to reach the bathroom, appellant stabbed her in the leg and shoulder with the ice pick. He then ordered Doe to take off her clothes and threatened to have intercourse with her. Appellant ripped off Doe’s sweatshirt and pulled down her bra, but afterward he changed his mind and helped Doe put her bra back on. The couple then began talking, and Doe apologized for not being affectionate or being “ ‘the woman you want me to be.’ ” After 15 to 30 minutes of conversation, appellant no longer wanted to kill Doe, and they hugged each other and cried together. Appellant asked Doe to kill him or call the police, but she refused.
Appellant left and went to work, but the following day he resigned from his job and surrendered himself to the Humboldt County Sheriff’s Department. While appellant was being interviewed, another officer contacted Doe, and she reported a similar version of the events. The officer observed bruising on Doe’s upper arms and legs and a six-inch abrasion on the side of her stomach, and, though she declined medical attention, Doe complained of pain to her neck. When she was contacted by the probation department, Doe stated she was terrified of appellant and the children were afraid to live in their home. Doe believed appellant has mental health issues and told the department he “needs to be locked up.” Appellant’s 16-year-old daughter also thought appellant should be sent to prison, though his 17-year-old son thought probation with jail time would be more appropriate.
A felony complaint was filed on May 16, 2006, and, after appellant waived his right to a preliminary hearing, he was charged with attempted murder (Pen. Code, §§ 187, subd. (a), 664), criminal threats (§ 422), first degree burglary (§§ 459, 460, subd. (a)), corporal injury on a spouse (§ 273.5, subd. (a)), false imprisonment (§ 236), and assault with a deadly weapon (§ 245, subd. (a)(1)). As to the attempted murder and criminal threats counts, the information alleged an enhancement for personal use of a deadly weapon. (§§ 12022, subd. (b)(1).) On July 31, 2006, appellant entered an open plea of guilty to attempted murder and first degree burglary and admitted the enhancement for personal use of a deadly weapon. All related charges were dismissed. Pursuant to the plea agreement, if the court sentenced him to state prison, appellant’s sentence was to be capped at a maximum of six years, reflecting the five-year mitigated term for attempted murder plus an additional year for the deadly weapon enhancement. The parties agreed that an aggravated sentence on the burglary charge would run concurrently.
The following day, May 17, 2006, the district attorney filed another complaint alleging that on May 6, 2006, appellant was unlawfully driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)) and with a blood alcohol level above .08 percent (Veh. Code, § 23152, subd. (b)) and was driving without a valid driver’s license (Veh. Code, § 12500, subd. (a)). The complaint alleged appellant was previously convicted of violating Vehicle Code section 23152, subdivision (a) on February 1, 2006. Shortly after this felony complaint was filed, the district attorney filed a petition to revoke probation for appellant’s February 1, 2006 conviction.
All statutory references are to the Penal Code unless otherwise stated.
With this plea, appellant also resolved the related cases. He pleaded guilty to a violation of Vehicle Code section 23152, subdivision (a) with a prior drunk driving conviction, and he admitted the probation violation.
Appellant’s sentencing hearing was held on September 13 and 19, 2006. The probation department observed appellant’s conviction for first degree burglary and his admission to using a deadly weapon during an attempted murder rendered him statutorily ineligible for probation unless the court found this to be an unusual case. (§§ 462, 1203, subds. (e)(1) & (2).) Appellant’s statement in mitigation urged the court to grant probation, based largely on appellant’s relatively insignificant prior criminal record and his willingness to participate in counseling. To this end, appellant submitted an evaluation from clinical psychologist Otto V. Vanoni, which concluded appellant has dependent personality disorder with paranoid and depressive traits and schizoid features and “could benefit more from therapeutic and pharmacological intervention than long term incarceration.” Appellant also submitted several letters from friends and coworkers urging leniency, and five such individuals made statements on his behalf at the sentencing hearing.
According to probation department records, appellant spent two days in jail for a drunk driving conviction in 1984, and in 1986 he was placed on summary probation for three years for a misdemeanor burglary. His criminal record remained clear for the next 20 years, until his February 1, 2006 conviction for drunk driving.
Noting that appellant was presumptively ineligible for probation under sections 462 and 1203, subdivision (e)(1), the trial court announced its tentative decision to deny probation and sentence appellant to a six-year aggregate term. The court observed, “I don’t think this is an unusual case where the interest of justice can best be served by placing Mr. Rivas on probation. Any previous course of good conduct and good standing in the community is not reasonably related to a decision of whether an offense is unusual where the interest of justice would best be served by granting probation.” After hearing arguments from counsel and an impassioned statement from appellant, the court repeated that unusual factors that would be required to justify probation did not exist. The court described the aggravating and mitigating factors for the record and imposed the maximum prison sentence permissible under the plea agreement: five years for attempted murder, plus one year for use of a deadly weapon, for a total term of six years.
The court also imposed concurrent sentences of six years for the first degree burglary conviction, 180 days for the misdemeanor drunk driving conviction, and 90 days for the probation violation.
DISCUSSION
Appellant does not dispute that, given the nature of his offenses, he was presumptively ineligible for probation under sections 462 and 1203, subdivisions (e)(1) and (2). Rather, his sole claim on appeal is that the trial court abused its discretion by refusing to consider his previous good conduct and standing in the community in determining whether unusual circumstances justified a grant of probation. Appellant had ample opportunity to object to the trial court’s reasoning at the sentencing hearing, and his failure to do so means the issue is waived on appeal. (People v. Scott (1994) 9 Cal.4th 331, 356 [“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”].) In any event, as we shall explain, the claim fails on the merits.
Appellant complains he was not made aware of statutory limits on his probation eligibility before he entered his pleas, but he stops short of actually claiming his advisement was defective. Any such argument is precluded by appellant’s failure to obtain a certificate of probable cause. (§ 1237.5.) Moreover, immediately after he entered his guilty pleas, appellant confirmed his understanding that the court would have to find unusual circumstances in order to grant probation, and the record here certainly “does not show a climate of ‘real anticipation’ that probation was likely.” (People v. Vento (1989) 208 Cal.App.3d 876, 879 [no error in failing to advise of limitation on probation eligibility where record does not show defendant was led to believe probation was likely].)
In determining whether a statutory limitation on probation has been overcome, the trial court is required to use the criteria set forth in California Rules of Court, rule 4.413. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 830 (Du).) Rule 4.413(c) lists two types of facts that may render a case unusual. Facts relating to the basis for the limitation on probation, which indicate “that the basis for the statutory limitation on probation, although technically present, is not fully applicable to the case,” may make a case unusual. (Rule 4.413(c)(1).) Rule 4.413(c) describes two possible situations when such facts may arise: “(A) The fact or circumstance giving rise to the limitation on probation is, in this case, 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 or crimes of violence; and [¶] (B) The current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense.” (Rule 4.413(c)(1).) The second category of facts that may render a case unusual includes facts that limit the defendant’s culpability, even if they do not amount to a defense. (Rule 4.413(c)(2).) Such facts include: “(A) The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence; [¶] (B) 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 [¶] (C) The defendant is youthful or aged, and has no significant record of prior criminal offenses.” (Rule 4.413(c)(2).) Only if the court finds the case to be an unusual one does it employ the criteria set forth in rule 4.414 to decide whether to grant probation. (Du, supra, 5 Cal.App.4th at p. 830; see also Rule 4.413(b).) We review a trial court’s finding as to whether a case is unusual for abuse of discretion. (Du, supra, 5 Cal.App.4th at p. 831.)
All references to rules are to the California Rules of Court.
Appellant argues the trial court erred by failing to consider his previous good conduct and standing in the community because such facts are relevant to determine whether the interests of justice support a grant of probation. He contends that in refusing to consider facts about his good conduct and community standing, the trial court took an “unduly narrow view of circumstances relevant to the interests of justice” and thus did not recognize the extent of its discretion to grant probation. These arguments were firmly rejected in People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216 (Dorsey).
In Dorsey, the trial court granted probation to the former Sherriff of Inyo County, who had been convicted of misappropriating and embezzling a large sum of public funds entrusted to him, based on his long and respected career in law enforcement and his community support. (Dorsey, supra, 50 Cal.App.4th at pp. 1221, 1227-1228.) On the People’s appeal, Division Two of the Fourth District Court of Appeal concluded such facts about the offender are irrelevant to the determination of probation eligibility and reversed. (Id. at pp. 1226-1229.) Rule 4.413(c) lists only limited circumstances in which a case may be considered unusual and, while these circumstances are not necessarily exclusive, “the language of the rule is not to be read expansively.” (Dorsey, supra, 50 Cal.App.4th at p. 1227.) The Dorsey court explained, “if the statutory limitations on probation are to have any substantial scope and effect, ‘unusual cases’ and ‘interests of justice’ must be narrowly construed and, as rule [4.413] provides, limited to those matters in which the crime is either atypical or the offender’s moral blameworthiness is reduced.” (Dorsey, supra, 50 Cal.App.4th at p. 1229.) In addition, and particularly relevant to appellant’s argument here, the court held: “A previous course of good conduct and good standing in the community is not ‘reasonably related’ [citation] to the decision of whether an offense constitutes an ‘unusual case where the interests of justice would be best served’ by granting probation.” (Ibid.) The trial court’s observation about the irrelevance of appellant’s previous good conduct or good standing in the community was almost an exact quotation of this holding from Dorsey.
Having failed to cite Dorsey in his opening brief, appellant argues in his reply brief that the case was wrongly decided. We disagree. Dorsey was decided over 10 years ago, and courts have consistently followed its conclusion that circumstances establishing an “unusual case” for purposes of probation eligibility must be narrowly construed. (See, e.g., People v. Stuart (2007) 156 Cal.App.4th 165, 178-187 [citing Dorsey and concluding defendant’s case was not unusual based on circumstances described in rule 4.413].) The trial court did not err in relying on Dorsey to conclude any previous good conduct or good community standing appellant may have demonstrated was not relevant to the analysis of whether the statutory presumption against probation could be overcome. Such facts would have been pertinent to an analysis of whether appellant would have been a suitable candidate for probation under rule 4.414; however, “mere suitability for probation does not overcome the presumptive bar” imposed by sections 462 and 1203, subdivision (e) and rule 4.413. (Dorsey, supra, 50 Cal.App.4th at p. 1229.)
Appellant expressly disclaims any argument that the trial court abused its discretion in its application of the criteria set forth in rule 4.413 for finding a case unusual. He argues only that the court should have considered other facts beyond the rule 4.413 criteria, i.e., facts relating to his previous good conduct and reputation in the community. Based on the analysis in Dorsey, which refused to depart from the criteria in rule 4.413 despite the pleas of a highly regarded public official, we disagree. Accordingly, having rejected appellant’s only argument, we need not scrutinize the trial court’s application of the rule 4.413 factors in this case.
DISPOSITION
The judgment is affirmed.
We concur: Pollak, J., Siggins, J.