Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F06905646, Carlos A. Cabrera and M. Bruce Smith, Judges.
Judge Cabrera presided over appellant’s change of plea. Judge Smith sentenced appellant.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Harris, Acting P.J., Levy, J., and Cornell, J.
PROCEEDINGS
Appellant, Eli Martin Rivera, was charged in a first amended information filed January 17, 2007, with corporal injury to a cohabitant or child’s parent on July 16, 2006 (Pen. Code, § 273.5, subd. (a), count one), corporal injury to a cohabitant or child’s parent on July 22, 2006 (§ 273.5, subd. (a), count two), false imprisonment by violence (§ 236, count three), second degree robbery (§ 211, count four), unlawful driving or taking a vehicle, a felony (Veh. Code, § 10851, subd. (a), count five), assault by means likely to cause great bodily injury (§ 245, subd. (a)(1), count six), first degree residential burglary (§§ 459 & 460, subd. (a), count seven), and transportation of methamphetamine for sale (Health & Saf. Code, § 11379, subd. (a), count eight). A criminal street gang enhancement (§ 186.22, subd. (b)(1)) was alleged as to counts one, six, and seven. The information further alleged two prior serious felony convictions within the meaning of the three strikes law (§§ 667, subds. (b) – (i) & 1170.12, subds. (a) – (d)).
Unless otherwise specified, all further statutory references are to the Penal Code.
On January 17, 2007, Rivera executed a felony advisement, waiver of rights, and plea form acknowledging and waiving his constitutional rights pursuant to Boykin/Tahl. Under the terms of the agreement, Rivera was admitting count one and the criminal street gang enhancement. The court advised Rivera of, and Rivera waived, his constitutional rights pursuant to Boykin/Tahl. The court also advised Rivera of the consequences of his plea and established a factual basis for the plea from the preliminary hearing transcript. Rivera pled guilty to count one and admitted the gang enhancement. In exchange for Rivera’s plea, the trial court granted the prosecutor’s motion to dismiss the remaining allegations.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122 (Boykin/Tahl).
On July 12, 2007, the trial court sentenced Rivera to the upper term of four years on count one and to a consecutive term of four years for the gang enhancement for a total prison term of eight years. The court granted applicable custody credits, imposed a restitution fine, and imposed other fines, penalties, and fees. On appeal, Rivera contends the trial court abused its discretion in failing to place him on probation.
FACTS
Offenses
On July 16, 2006, Fresno County Sheriff’s Deputy Eddy Cantu was dispatched to a residence in Fowler at 5:50 a.m. Cantu met a male (J. S.) and a female (Confidential Victim, or, C. V.) who identified themselves as victims of an assault. C. V. was with J. S., sleeping in his room, when she was awakened by three attackers pulling J. S. out of his bed. One of the attackers was Eli Rivera, with whom she had been in a relationship on and off over six years. C. V. and Rivera had four children together. She was separated from Rivera at the time of the attacks.
Except as otherwise indicated, the facts are derived from the preliminary hearing transcript.
Rivera began punching and hitting C. V. C. V. knew the other two attackers by their monikers, Dove and Chindo (or Chando). Dove also goes by the name Joey. C. V. knew the other attackers because they were friends of Rivera’s. J. S. told Cantu he was awakened by being dragged out of bed and being kicked, punched, and hit. J. S. could not see his attackers. J. S. heard a voice he recognized as Chindo’s say, “messing with the homey’s lady.” Cantu saw the door to the bedroom on the floor. The pins to the door hinges had been removed. A deadbolt lock on the door was still out, apparently in the lock position.
According to the probation report, J. S. told investigators that he had locked the door to his bedroom before going to sleep. Investigators determined that the assailants had removed the pins to the door hinges to gain entry into the bedroom.
C. V. appeared severely beaten and was slipping into and out of consciousness as Cantu questioned her. Cantu talked to J. S. at the hospital. J. S. was very badly beaten. It was hard for Cantu to get a statement from him because of the pain he was suffering. Deputy Isidro Ruelas met C. V. at the hospital. She had been beaten. C. V. described her attackers. Later, C. V. identified attackers, who were not Rivera, to a sheriff’s detective in separate photo show-ups. A sheriff’s deputy with expertise in gangs testified that Rivera and the other two attackers were members of the Bulldog street gang.
Sentencing
Rivera’s defense counsel, Roger Litman, filed a sentencing memorandum arguing that a grant of probation would be in the best interests of C. V. and her children. Rivera’s memorandum stated he was evaluated and accepted into the 24-month Delancey Street Program in Los Angeles. The declaration of the intake coordinator of that program was attached to the memorandum. Rivera also attached the declaration of C. V. stating that Rivera did not belong in prison, was an excellent father, made the Dean’s List at his junior college, and had an excellent work history. Litman filed a declaration stating he had received multiple phone calls from C. V. providing him with information as to why Rivera should be placed on probation.
The probation officer noted in his report that Rivera admitted hitting C. V., causing her to have a black eye, and that he was under the influence of methamphetamine and alcohol during the assault. The probation officer’s report states that Rivera was committed to the California Youth Authority (CYA) as a juvenile after a petition alleging second degree burglary was sustained. Rivera had three convictions for driving under the influence in 1998, 2000, and 2001. He had a felony conviction in 2000 for possession of a controlled substance. Rivera had two prior convictions for driving with a suspended license in 2000 and 2001. Rivera was on probation for driving with a suspended license in 2005.
Litman’s declaration had a statement that, according to court records, Rivera was referred to post conviction drug court on the drug possession charge.
The probation officer found Rivera was statutorily eligible for probation. The officer noted the aggravating factors of his offense were that his crime involved great violence, bodily harm, or the threat of bodily harm, and Rivera induced others to participate in the offense. Further aggravating factors were that Rivera’s violent conduct was a serious danger to society and his prior convictions as an adult or sustained petitions in juvenile delinquency proceedings were numerous or of increasing seriousness. The probation officer noted that in mitigation, Rivera voluntarily acknowledged wrongdoing at an early state of the criminal process. The probation officer recommended the upper term for count one and the aggravated term for the gang enhancement.
At the sentencing hearing, the trial court noted it had reviewed the probation officer’s report. The court granted a motion by defense counsel requesting a correction to the probation report which stated that Rivera failed to complete a diversion program because he had, in fact, successfully completed the program.
The trial court signed a statement in the probation report stating that the court had read and considered the report.
Defense counsel argued extensively that Rivera was eligible and a good candidate for probation. Counsel argued, inter alia, that C. V. did not want to see Rivera in jail and Rivera had good grades in junior college and was accepted into the Delancey Street Program. Defense counsel argued that the maximum sentence Rivera could receive under the plea agreement was eight years, but that this was a probation case.
The trial court found that although Rivera was statutorily eligible for probation, he had a poor history on prior grants of probation. The court stated it considered defense counsel’s sentencing memorandum and the wishes of the victim, but found the legislative intent of section 1170, as recently amended, affords the court “the ability to apply the sentencing guidelines as set up in the Rules of Court in a discretionary manner.”
The court found no mitigating factors. As aggravating factors, the court found Rivera’s prior convictions as an adult and sustained petitions as a juvenile were numerous and increasing in seriousness. The court noted there were multiple victims and that while C. V. did not believe prison was an appropriate sentence, J. S. did not also indicate his concurrence with C. V. The court noted that the crime involved great violence and Rivera instigated the offense. The court found aggravating factors outweighed the mitigating factors and imposed the upper term of four years on count one and a consecutive sentence of the upper term for the gang enhancement.
DISCUSSION
Rivera contends in a lengthy argument that the trial court abused its discretion in failing to place him on probation. We disagree and will affirm.
Probation is an act of clemency, not a matter of right. (People v. Wardlow (1991) 227 Cal.App.3d 360, 365.) Probation is usually reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation. (§ 1203.1; People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).) Sentencing courts have broad discretion to determine whether an eligible defendant is suitable for probation and under what conditions. (§ 1203.1, subd. (b); Carbajal, supra, 10 Cal.4th at p. 1120.) The primary goal of probation is to ensure public safety by enforcing conditions of probation as ordered by the court. (§ 1202.7; Carbajal, supra, 10 Cal.4th at p. 1120.) In the granting of probation, the Legislature has declared the primary considerations to be: “the nature of the offense; the interests of justice, including punishment, reintegration of the offender into the community, and enforcement of conditions of probation; the loss to the victim; and the needs of the defendant.” (§ 1202.7; Carbajal, supra, 10 Cal.4th at p. 1120.)
A trial court abuses its discretion when its order granting or denying probation exceeds the bounds of reason under all of the circumstances. (See People v. Warner (1978) 20 Cal.3d 678, 683.) Appellate courts will not interfere with the trial court’s exercise of discretion when the trial court has considered all facts surrounding the offense and the defendant to be sentenced. (People v. Downey (2000) 82 Cal.App.4th 899, 910.) This is especially so where the court has not abandoned its role as an independent and unbiased judicial officer and has carefully considered the arguments of counsel and the reports submitted for sentencing. (Ibid.)
The trial court clearly considered all of the relevant factors concerning Rivera’s eligibility for probation, including the victim’s plea for clemency and Rivera’s record in school and at work. The court, however, was persuaded that Rivera had failed to reform after prior grants of probation and was concerned with the seriousness of the offense, as well as with the fact that Rivera instigated the crime. The nature of the offense was terrifying to the victims. The injuries the victims suffered sent them both to the hospital. The assault itself occurred late at night with the assailants pulling pins from door hinges to the bedroom and dragging the victims out of bed to accomplish their assault. We fail to find anything capricious or arbitrary in the court’s sentencing. Rivera has failed to demonstrate that the trial court abused its discretion in denying him probation.
The court expressly noted in the record that it had discretion under section 1170, as amended by the Legislature before Rivera’s sentencing, to exercise its discretion in weighing mitigating and aggravating factors. As the California Supreme Court held last year, the trial court’s utilization of the new statute is neither a violation of ex post facto or of due process. (People v. Sandoval (2007) 41 Cal.4th 825, 845-857.) The trial court’s sentencing under the amended version of section 1170, therefore, did not violate Rivera’s right to a jury trial on the court’s use of sentencing discretion to impose an upper term sentence. (Ibid.; Compare Cunningham v. California (2007) 549 U.S. 270 [analyzing California’s preamendment sentencing scheme under section 1170].)
DISPOSITION
The judgment is affirmed.