IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Yuba
January 6, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ALEXANDER RAY WARREN, DEFENDANT AND APPELLANT.
Super. Ct. No. CRF08-178
The opinion of the court was delivered by: Nicholson , J.
P. v. Warren CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Alexander Ray Warren appeals from the judgment entered following his negotiated no contest plea to assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b))*fn1 and his admission that he personally used a firearm in the commission of that offense (§ 12022.5, subd. (a)). He contends the trial court abused its discretion in (1) denying his request for probation, and (2) imposing the middle six-year term for his assault charge. We find no error, conclude his assertions on appeal are frivolous, and affirm the judgment.
During the evening of March 15, 2008, a rap music concert was held at a youth center in Marysville. Several of the attendees of the concert were members of the Norteno criminal street gang. Defendant was present with his brother and his brother's young stepson.
About 11:30 p.m., a confrontation between large groups of concert guests and would-be guests began in the youth center parking lot. Defendant and other Norteno gang members were involved in the confrontation. At some point during the confrontation, defendant produced a nine-millimeter Uzi and opened fire; he struck three gang members and one fired back with a handgun and struck defendant in the leg.
As the gunfire erupted, three minors and one adult were getting into a car to leave. They later told police they did not know defendant. As the car pulled away, defendant pulled the front passenger door open, pointed the Uzi at the minor in the passenger seat, and told her to get out or get into the backseat. The minor climbed into the backseat of the car. Defendant sat in the front passenger seat. Defendant then pointed the gun at the minor driver and demanded he drive away, saying, "I'm hit, I'm hit, just drive." Finding the parking lot exits blocked by police, defendant got out of the car, and later collapsed near the youth center.
The minor who drove the car later told officers he had been afraid for his life.
As to the shooting victims, defendant was charged with three counts of attempted murder (§§ 664/187, subd. (a); counts I through III); and three counts of assault with a firearm (§ 245, subd. (a)(2); counts IV though VI). As to the three minors and one adult in the car, defendant was charged with four counts of assault with a firearm (§ 245, subd. (a)(2); counts VII though X), four counts of taking a motor vehicle by force or fear (§ 215, subd. (a); counts XI through XIV), and four counts of kidnapping (§ 207, subd. (a); counts XV through XVIII).
He ultimately pled no contest to an amended count VII, assault with a semiautomatic firearm (§ 245, subd. (b)), and admitted he personally used an Uzi in the commission of that offense (§ 12022.5, subd. (a)). Counts VIII through X were also amended to allege assault with a semiautomatic firearm, and dismissed with Harvey*fn3 waivers, as were the personal use enhancements alleged in connection with those counts.
Defendant's plea bargain contemplated that he would receive a disposition of not more than 10 years in state prison, the sum of the middle term of six years for count VII, plus a consecutive four-year term for the personal use enhancement. At sentencing, the court found that unusual circumstances were not present to overcome his statutory ineligibility for probation, and imposed the middle term of six years for count VII, plus a consecutive four-year term for the personal use enhancement, for an aggregate term of 10 years.
The Court Did Not Abuse its Discretion in Denying Probation
Defendant contends the trial court erred in concluding his case was "not unusual" and that he was therefore ineligible for probation, and/or abused its discretion in thereafter refusing to grant him probation.
In his statement to the probation officer preparing the presentence report, defendant requested probation and explained that his actions that night were provoked and intended only to protect himself. At the concert, after he saw some old acquaintances "mad dogging" him, he called a friend, Arturo, and asked Arturo to bring him a gun. Arturo arrived with the three minors and one other adult. Fearful that he would be attacked, defendant retrieved the gun from the car at Arturo's direction: he only fired it after he was punched and someone tried to grab the gun. In the melee, defendant was shot in the leg. At Arturo's instruction, defendant then got into the car with the three minors and one adult; defendant denied pointing the gun at anyone in the car and called the occupants in the car his friends.
The probation officer recommended against probation, having concluded defendant "was not provoked or coerced into committing the present offense as he had ample opportunity to leave the area prior to the eruption of any conflict, yet he chose to stay, telephoned a friend to bring him a firearm, and then engaged a crowd of people whom he admits he knew had intentions of harming him. Following his poor decision making and the resultant injury to himself, the defendant assaulted a car full of [four] innocent victims, an act which he was not coerced or provoked into committing. Furthermore, the defendant cannot claim to have committed the offense under duress. [Defendant] was the catalyst for the events that transpired on the night of the present offense. Any duress he may have been under was of his own creation. Shooting three people with an Uzi cannot provide the basis for the defendant to benefit from victimizing four more people under the guise of duress."
Defendant also submitted a sentencing memorandum in mitigation, urging the court to conclude that this is an "unusual case" warranting a grant of probation because he was provoked into committing the crime. Consistent with his prior statements to police, defendant explained he asked his friend Arturo to bring him a gun only after he felt threatened by other Norteno gang members at the concert, believed himself to be in danger for having cooperated with police on one occasion in the past, responded to "a high degree of provocation and taunting by the crowd," and panicked.
At sentencing, defendant testified. He stated that, on the night of the shooting, he called his friend Arturo to bring him a gun after he saw someone inside the concert hall miming pointing a gun at him. Defendant said he knew one of the three minors and the other adult who had arrived with Arturo and the gun. After defendant retrieved the gun, some people were "coming at [him] . . . in an aggressive manner," he was punched in the face, someone tried to wrestle the Uzi out of his hand, and then he saw someone "put like a gun in [his] face" and cock the hammer back. Only then did defendant's gun "go off."
Defendant's brother also testified at sentencing. He said that, before the shooting, he saw a group of people "making gestures" to defendant; one called defendant a "piece of shit." Defendant was standing outside the passenger door of his brother's car, but he did not get in because he was busy "acknowledging" the things people were saying to him.
The court rejected defendant's claim that this case is an "unusual" one warranting probation. The court opined that defendant's "seeking to vindicate himself and his honor with the use of an Uzi" cannot be a mitigating factor; it did not "find credible" defendant's testimony that he knew two of the four occupants of the car and would not have pointed the Uzi at them and, in any event, found nothing in the evidence to suggest he was coerced or provoked into assaulting a car full of innocent victims, the basis for his conviction and Harvey waivers. The court noted that defendant has 2006 and 2007 convictions for crimes of violence.
The court also rejected defense counsel's request that the court sentence defendant to the midterm for the substantive offense, but stay or strike the firearm use enhancement.
"'All defendants are eligible for probation, in the discretion of the sentencing court [citation], unless a statute provides otherwise.' [Citation.] 'The grant or denial of probation is within the trial court's discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion. [Citation.]' [Citation.] 'In reviewing [a trial court's determination whether to grant or deny probation,] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court's order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.' [Citation.]" (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311; People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 825.)
"The decision to grant or deny probation requires consideration of all the facts and circumstances of the case. [Citation.]" (People v. Birmingham (1990) 217 Cal.App.3d 180, 185.)
Here, because defendant used a deadly weapon during the assault for which he was convicted, he was ineligible for probation unless the court found this to be an "unusual case" where the interests of justice would best be served by a grant of probation. (§ 1203, subd. (e)(2).)*fn4 Thus, the presumption was against probation.
The California Rules of Court*fn5 set forth the policies and criteria that should guide the trial court's grant or denial of probation. Rule 4.410 provides:
"(a) General objectives of sentencing include:
"(1) Protecting society; "(2) Punishing the defendant; "(3) Encouraging the defendant to lead a law-abiding life in the future and deterring him or her from future offenses; "(4) Deterring others from criminal conduct by demonstrating its consequences; "(5) Preventing the defendant from committing new crimes by isolating him or her for the period of incarceration; "(6) Securing restitution for the victims of crime; and "(7) Achieving uniformity in sentencing.
"(b) Because in some instances these objectives may suggest inconsistent dispositions, the sentencing judge must consider which objectives are of primary importance in the particular case. The sentencing judge should be guided by statutory statements of policy, the criteria in these rules, and the facts and circumstances of the case."
Regarding a trial court's decision whether to grant or deny probation, rule 4.414 provides (as relevant to the issues raised by defendant's appeal): "Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant.
"(a) Facts relating to the crime. 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; [¶] . . . [¶] "(6) Whether the defendant was an active or a passive participant; [and] "(7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur .
"(b) Facts relating to the defendant. "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; [¶] . . . [¶] "(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 dependants; [¶] . . . [¶] "(8) The likelihood that if not imprisoned the defendant will be a danger to others."
"'The circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance of the evidence. [Citations.]' [Citation.] Accordingly, in determining whether a trial court abused its discretion by denying probation, we consider, in part, whether there is sufficient, or substantial, evidence to support the court's finding that a particular factor was applicable." (People v. Weaver, supra, 149 Cal.App.4th at p. 1313.) However, a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it, and this court is neither authorized nor warranted in substituting our judgment for that of the trial judge. (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
Defendant insists the trial court abused its discretion in declining to grant him probation because he "fired a weapon in a threatening situation where he reasonably believed his life, and possibly the lives of his brother and a young boy, were in danger" (see rule 4.414(a)(1)); the seriousness of the crime was mitigated by the facts that "gang members were, and had been targeting" defendant; the victims were the aggressors (see rule 4.414(a)(3)); he was "a passive participant who attempted to avoid confrontation" (see rule 4.414(a)(6)); the crime was committed because of unusual circumstances and great provocation (rule 4.414(a)(7)); the crime was unsophisticated and showed a lack of planning (rule 4.414(a)(8)); defendant did not have a significant criminal record (rule 4.414(b)(1)); he could and would comply with probation (rule 4.414(b)(3), (4)); and would not pose a danger to others (rule 4.414(b)(8)).
First, we find no abuse in the trial court's exercise of its discretion. It exhaustively considered all of the relevant facts bearing on both the incident at issue and defendant. In so doing, it considered the probation report, the sentencing statement in mitigation, arguments of counsel, and testimony of witnesses, including defendant's testimony at sentencing. We defer to the trial court's credibility determinations. (People v. Barnes (1986) 42 Cal.3d 284, 306.) The court's remarks make clear it seriously contemplated defense counsel's proposal that defendant receive formal probation. The court gave a well-reasoned and considered explanation for its decision to deny probation.
Second, and more to the point in defendant's case, the trial court did not abuse its discretion in denying him probation. The court found incredible defendant's testimony that he did not point the Uzi at the victims in the car and found incredible defendant's testimony that he was protecting his brother's stepson, because defendant "was not aware of the [stepson's] whereabouts after [defendant] retrieved the Uzi." The trial court was also entitled to reject defendant's argument that his actions should be excused because he was provoked. It correctly noted that this argument is undermined by defendant's refusal to acknowledge that the crime of which he was convicted -- assaulting three minors and one adult in a car with an Uzi -- involved no provocation by the victim of that crime.
Under the circumstances of this case, we agree with the trial court that defendant was the author of his own story: after he received some angry looks from other concertgoers, he neither left nor contacted law enforcement, but called a friend to bring him a gun so that he could "stand his ground" and try to vindicate his honor with an Uzi. The court found defendant was not passive, but "kn[ew] full well of the probability of violence" that would result from his actions. We agree.
Nor did the court abuse its discretion in concluding that the factors related specifically to defendant did not warrant a grant of probation. He has a prior criminal record of carrying a loaded firearm in a vehicle and for being an active participant in a criminal street gang. His prior performance on probation was unsatisfactory, and he was on three grants of probation when the crime was committed. Notwithstanding defendant's argument to the contrary, the court did not abuse its discretion in concluding defendant would pose a danger to the public if not incarcerated in light of his previous gang connections, a propensity to possess firearms, including assault rifles, and a demonstrated willingness to "engage in a lifestyle involving guns and violence."
The Court Did Not Abuse its Discretion in Imposing the Middle Six-Year Term for Assaulting the Victim with a Semiautomatic Firearm In passing, defendant argues that "even if this Court were to conclude the trial court did not abuse its discretion by denying probation, at a minimum, and based on the unusual circumstances surrounding the offense, and the amount of mitigation discussed, ante, the maximum prison term warranted was the low term."*fn6
At sentencing, the trial court considered whether, in selecting the term of imprisonment, there existed circumstances in mitigation warranting imposition of the low term, including whether "[t]he crime was committed because of an unusual circumstance, such as great provocation, that is unlikely to recur" (rule 4.423(a)(3)) and whether defendant "participated in the crime under circumstances of coercion or duress, or the criminal conduct was partially excusable for some other reason not amounting to a defense" (rule 4.423(a)(4)). It answered those questions in the negative and, for the reasons we describe above, the court did not abuse its discretion in so concluding.
We rarely conclude that a case involving assertions of trial court abuse of discretion is frivolous. However minimal, there is usually at least some arguable room for challenging a trial court's discretionary calls. Not so here. Taking into account all of the facts and circumstances that were so thoughtfully and fully considered and assessed by the trial court, we conclude that this appeal is completely, totally, and indisputably without merit and, therefore, frivolous.
The judgment is affirmed.
BLEASE , Acting P. J.
BUTZ , J.