Opinion
B229272
12-21-2011
THE PEOPLE, Plaintiff and Respondent, v. CARLOS E. VALENCIA, Defendant and Appellant.
J. Scott Cramer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Colleen M. Tiedemann, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA373741)
APPEAL from a judgment of the Superior Court of Los Angeles County, Dennis J. Landin, Judge. Affirmed.
J. Scott Cramer, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Carlos E. Valencia appeals from the judgment entered following his conviction by jury of making a criminal threat and using a knife in the commission of the offense. (Pen. Code, §§ 422, 12022, subd. (b).) His sole contention is the trial court abused its discretion in denying him probation. We affirm.
He was found not guilty of committing an assault with a deadly weapon. (Pen. Code, § 245, subd. (a).)
FACTUAL AND PROCEDURAL BACKGROUND
I. The Prosecution Case
At approximately 1:00 p.m. on July 16, 2010, Aracely Kila was cleaning her apartment when she heard her four-year-old son screaming. When she went to investigate, she saw defendant tugging on the apartment window and saying, "Open the door." Kila observed that defendant was "drunk." Defendant kept pulling on the window. Believing he was trying to enter the apartment, Kila called 911. As she was on the phone, she continued to watch defendant.
The apartment manager, Cristobal Quijada, was in the laundry room when he heard a male outside Kila's apartment shouting, "Son of a bitch." Quijada, who was 55 years old, had suffered a stroke, and was blind in one eye, walked out of the laundry room and saw defendant screaming in front of Kila's window. Defendant then walked toward the apartment's garage and Quijada followed. Defendant, who seemed drunk to Quijada, laid down in front of the garage door. Quijada asked him to move; however, defendant remained where he was. Quijada attempted to open the door. Defendant became angry and told Quijada that he (defendant) was "Mara Salvatrucha," a gang member. Defendant tried to open a backpack that he had, but Quijada grabbed it, fearing defendant had a weapon inside. When defendant said he wanted the backpack, Quijada gave it to him and asked defendant to leave. Defendant walked to the sidewalk and out of Quijada's view.
Within minutes, defendant returned, put on a glove, and took out an eight-inch knife. Defendant walked to within 15 feet of Quijada and said he did not want to kill him in front of the garage. He asked Quijada to walk to the yard so he could kill him there. Defendant's threat made Quijada nervous, so he grabbed a pole that is commonly used as a paint roller extension. Defendant repeatedly said to Quijada, "Come over here. Come over here. This is where I want to kill you." As he spoke, defendant walked back and forth from the garage to the sidewalk. Quijada responded by telling defendant to leave. He then saw defendant walk around the side of the building.
Kila, who saw defendant come back to confront Quijada, believed defendant got as close as four or five feet from him.
Kila heard defendant say that he did not want to kill Quijada, but he was going to have to.
The police responded to the location and saw defendant walking from the area of the apartment toward the street. They took defendant into custody and recovered a knife from his left front pants pocket.
II. The Defense Case
Defendant testified that he went to the apartment building and approached a trash bin, hoping to find recyclable items. He saw Quijada. Defendant knew Quijada and had helped him move stoves on a prior occasion. He asked Quijada for water and Quijada responded rudely. Defendant walked toward him and repeated that he merely wanted some water. Quijada kept "telling [him] some things," so he walked to the sidewalk. Defendant stood on the sidewalk and continued to speak to Quijada. Shortly thereafter, the police detained him. He denied pulling a knife and threatening to kill Quijada. Defendant said he did not go to Kila's apartment, speak to her child, or try to enter the apartment through the window.
III. The Sentencing Hearing
At the December 2, 2010 sentencing hearing, initially, defense counsel relied on the sentencing memorandum she had filed and offered no further argument. The prosecutor conceded defendant had no record of serious convictions; however, she pointed to the fact that he had been in this country for a short time and suggested this explained his lack of a known criminal history. She argued the midterm of two years and the additional year for the knife was an appropriate sentence, given that defendant threatened the victim with the knife and committed perjury on the stand. Defense counsel stated it was improper for the court to consider defendant's immigration status. Citing defendant's minimal record (traffic violations), his intoxicated state at the time of the offense, and the victim's lack of injury, counsel urged that a grant of probation and additional county jail time was appropriate.
Expressly declining to speculate as to whether defendant had a criminal history in his native country of El Salvador and recognizing he was intoxicated at the time of the incident, the trial court emphasized that defendant used a knife during the commission of the offense and put people at risk. The court sentenced defendant to the low term of 16 months and added an additional year for the use of the knife.
Defendant filed a timely appeal from the judgment.
DISCUSSION
Defendant contends the trial court abused its discretion by refusing to place him on probation. He argues the court failed to consider the factors relevant to a decision to grant or deny probation that are set forth in California Rules of Court, rules 4.413 and 4.414.
All further rule references are to the California Rules of Court.
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Defendant concedes that because he used a knife during the commission of the offense, he is presumptively ineligible for probation. (Pen. Code, § 1203, subd. (e)(2).) Penal Code section 1203, subdivision (e) states the trial court shall not grant probation in such a case "[e]xcept in unusual cases where the interests of justice would best be served if the person is granted probation[.]" "The standard for reviewing a trial court's finding that a case may or may not be unusual is abuse of discretion." (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) "Under the abuse of discretion standard, 'a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citation.]" (People v. Hovarter (2008) 44 Cal.4th 983, 1004.)
We begin with defendant's assertion that the trial court improperly failed to consider the factors set forth in rule 4.413 and determine whether he was eligible for a grant of probation. As defendant acknowledges, the first task the trial court had was to "determine whether there [were] unusual circumstances to overcome the statutory limitation on probation." At the hearing, defense counsel cited only the general criteria in rule 4.414 that are relevant to ascertaining whether a defendant is suitable for a grant of probation. She apparently did not realize that defendant was presumptively ineligible for probation and did not ask the court to determine whether his case was unusual such that a grant of probation would best serve the interests of justice. (Rule 4.413(b).) Having failed to present the argument in the trial court, defendant did not preserve the claim for appellate review. (People v. Scott (1994) 9 Cal.4th 331, 353.)
In any event, even if the trial court had been asked to consider the factors in rule 4.413, it is not reasonably probable it would have found defendant eligible for probation. (See People v. Osband (1996) 13 Cal.4th 622, 728-729 [reversal of sentence is required only if trial court would have imposed a different sentence absent the alleged error].) There are two factors under the heading of "Facts relating to basis for limitation on probation." (Rule 4.413(c)(1).) The first relates to a situation where a prior conviction renders the defendant presumptively ineligible for probation. That is inapplicable here. The second requires the trial court to consider "[t]he fact or circumstance giving rise to the limitation on probation" and determine whether the current offense is "less serious than the circumstances typically present in other cases involving the same probation limitation." (Rule 4.413(c)(1)(A).) In light of the fact the victim was 55 years old and blind in one eye and the trial court's finding that defendant "had a knife, and it put people at risk," it is difficult to conclude that the court would have decided that defendant's offense was less serious than the typical case involving the use of a knife. In the category concerning facts limiting defendant's culpability, none apply. He did not participate in the crime "under circumstances of great provocation, coercion, or duress not amounting to a defense" (rule 4.413(c)(2)(A)) and he did not commit the crime because of a mental condition (rule 4.413(c)(2)(B)). Nor is defendant "youthful or aged" with "no significant record of prior criminal offenses." (Rule 4.413(c)(2)(C).) He was 41 on the date of the incident. (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1227 [a defendant who was between 38 and 43 years of age when he committed offenses was neither youthful nor aged for purposes of rule 4.413(c)(2)(C)].)
Defendant also claims the trial court did not consider the criteria affecting a decision to grant or deny probation set forth in rule 4.414. However, pursuant to the plain language of rule 4.413, the court had no obligation to do so. As we have discussed, where a defendant is presumptively ineligible for a grant of probation, the trial court must first determine whether the case is unusual and factors overcome the statutory limitation on probation. Rule 4.413 "itself evidently contemplates a two-step process when it states that '[if] the statutory limitation on probation is overcome . . . the court should then apply the criteria in rule [4.414] to decide whether to grant probation.'" (People v. Superior Court (Dorsey), supra, 50 Cal.App.4th at p. 1229.) We have concluded that, if asked, the trial court would not have found defendant eligible for a grant of probation. Thus, it would have had no reason to consider the criteria in rule 4.414 to decide whether defendant was a suitable candidate for probation.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J.
We concur:
EPSTEIN, P. J.
MANELLA, J.