IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
November 2, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JAIME DE VIZCARRA, DEFENDANT AND APPELLANT.
(Super. Ct. No. CRF086580)
The opinion of the court was delivered by: Blease , Acting P. J.
P. v. De Vizcarra
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Jaime Fernando De Vizcarra was a student at the University of California at Davis (UCD) when he was caught shoplifting from the university bookstore. In the course of being apprehended by university security, he hit a security guard in the face, breaking the guard's jaw.
A jury convicted defendant of battery with serious bodily injury (Pen. Code, § 243, subd. (d)), assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), and second degree burglary. (Pen. Code, § 459.) As to the latter two counts, the jury found true the special allegation that defendant personally inflicted great bodily injury within the meaning of Penal Code section 12022.7, subdivision (a).*fn1 The trial court declared a mistrial as to one count of second degree robbery because the jury was unable to reach a verdict as to that count.
The trial court denied probation. It sentenced defendant to a total term of five years, eight months, consisting of the lower term of two years for the assault conviction, plus an eight month consecutive term for burglary, and a three year consecutive sentence for the great bodily injury enhancement.
Defendant argues the trial court abused its discretion when it denied probation. We disagree, and shall affirm the judgment. We shall direct the trial court to correct the abstract of judgment to reflect that defendant earned a total of 133 days of presentence credits.
FACTUAL AND PROCEDURAL BACKGROUND
On December 9, 2008, Roy Velazquez, a UCD bookstore security employee, observed defendant and Louis Dydo on a video monitor. Dydo stuffed something square and bulky into his pants, while defendant acted as a lookout. Defendant also had a book that he was taking in and out of his sweater. Velazquez notified his supervisor, Edim Kurtovich, so that they could stop the suspects when they left the store. After Dydo and defendant left the bookstore, Velazquez and Kurtovich approached them. Velazquez identified himself as UCD security. Kurtovich also said he was bookstore security. Before Velazquez could finish the sentence, defendant took off. He ran to the information counter, where he threw down a book and a clicker. A clicker is a small, expensive device used to answer questions in class. He was trying to ditch any evidence of the theft.
The security officers turned their attention to Dydo, telling him they were going to handcuff him for stealing books. Before they could do so, defendant came running back. He punched Kurtovich in the face. Kurtovich could tell instantly that his jaw was broken. He heard a pop, and was unable to control his jaw. A few seconds later he realized he was bleeding inside his mouth. Defendant continued swinging, while Kurtovich tried to protect himself. Defendant called Kurtovich a child molester, and Kurtovich tried to tell him that he was a security officer, but it was difficult to speak because of the broken jaw and his mouth being full of blood.
A crowd had gathered, and by the time defendant and Dydo were under control, defendant began to appeal to the crowd for assistance, saying he needed to steal because he was poor.
Kurtovich required two surgeries to repair his broken jaw. He suffered six infections.
Numerous family members and friends spoke at defendant's sentencing hearing. They testified to defendant's academic achievement and good character.
Trial Court Did not Abuse Discretion
Defendant argues the trial court abused its discretion by declining to find his case unusual for the purpose of rendering him eligible for probation. We disagree.
As previously indicated, defendant was convicted of battery with serious bodily injury, and the jury found true the special allegation that he personally inflicted great bodily injury in connection with the battery and assault charges. Section 1203, subdivision (e)(3) provides: "[e]xcept in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons: . . . Any person who willfully inflicted great bodily injury or torture in the perpetration of the crime of which he or she has been convicted." Thus, defendant was not eligible for parole, absent a finding that his case was unusual and that a grant of probation would best serve the interests of justice.
The facts that "may indicate the existence of an unusual case" are set forth in rule 4.413 of the California Rules of Court. Relevant to the instant case, they are: (1)(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;" (2)(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;" and (2)(C) "The defendant is youthful or aged, and has no significant record of prior criminal offenses."
Defendant argues the circumstances of his case were substantially less serious than other cases because the injury to Kurtovich was a freak occurrence, his broken jaw being caused by a single punch, and because Kurtovich was not a particularly vulnerable victim. He also claims that he has no recent record of committing similar crimes, his most recent juvenile offense for petty theft having occurred nearly six years earlier. He argues that because he was broke and alone, he committed the crime under circumstances of great emotional duress. He testified at trial that he was broke because his financial aid was running out. Defendant also cites his youth. He was 20 at the time of the crime.
The trial court made the following findings at the sentencing hearing:
"We watched this video repeatedly during the course of the trial, and for everyone's edification what was interesting to the Court is the video capture of the organized theft that was going on by the defendant and Mr. Dydo, one person watching, other person concealing property on his person.
The attempted detention of the two . . . . Mr. Dydo was detained. [Defendant] actually broke free of one of the persons and ran from the area taking the stolen property out of his pants or wherever he had them, leaving them on the counter, and then rushing back to the scene where Mr. Dydo was still in contact with the two security officers.
This was not a case of self-defense either when [Kurtovich] . . . kept his hands on Mr. Dydo and looked back for a second after seeing [defendant] approach on him, turned his head, and it was a sucker punch, and it was a hard sucker punch, and the injuries in this case were serious. They were consequential.
Certainly for the life of the victim, his life has changed as well. That is the context in which the Court's decision is being made because it's important for people to understand that.
I also understand that the path that [defendant] has been on has not been an easy one in his life, and I take and very much appreciate the hard work of his teacher who is here today, his counselor from high school, . . . who gave of her time to be here to underscore her belief in him and the belief of friends who are present today.
The problem is when you say he's willing to take responsibility, what does that mean? Does that mean, well, I'll take responsibility if it's not too much?
I can believe that he's sincere, that he wishes this event had never taken place, but I also heard the tape recording of the conversation between the defendant and his girlfriend shortly after the incident, and it was not the attitude . . . of someone who was humbled by the fact he was under arrest and in custody.[*fn2 ] Anything but.
. . . [T]he Court was taken by . . . the expressions made by [defendant] to people at UC Davis and his belief that what had happened would not be much of an obstacle to his re-entry to the college and almost in a sense that it's just a quick matter of time not realizing really the consequences, really appreciating what had happened, that he was stealing from the university.
There's some evidence that it may have happened more than once and that he seriously injured an employee of the university. This is the context.
. . . [T]he Court is in agreement with Probation that an unusual case finding cannot be met.
The injuries were too severe, the consequences of the combination of the theft offense with the injuries to a store security officer are such, the prior theft history, the Court balances that with the fact that those events took place in a much different time of the defendant's life when he was much younger and before he had the opportunity of structure and the hope and opportunity that was given him at, . . . high school . . . .
But the Court cannot find an unusual case finding."
The decision to grant or deny probation is within the broad discretion of the trial court, which discretion will not be disturbed on appeal absent a showing the court acted in an arbitrary and capricious manner. (People v. Edwards (1976) 18 Cal.3d 796, 807.) Moreover, the trial court has discretion to grant probation in an "unusual case," but the discretion to grant probation is permissive rather than mandatory. In other words, the trial court has the discretion to deny probation even if it finds the defendant's case qualifies as unusual. (People v. Serrato (1988) 201 Cal.App.3d 761, 763.)
The party attacking the sentence has the burden of clearly showing that the decision was irrational or arbitrary. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) "In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." (Ibid.)
We conclude the trial court did not make an arbitrary or irrational decision. The trial court's findings indicate it took the relevant factors into account, including the severity of the victim's injuries and defendant's prior theft history, and concluded that this was not an unusual case, even though defendant had a rough childhood. The trial court appeared to be particularly disinclined to believe defendant was under great duress in committing the offense given his phone conversation with his girlfriend the day after being arrested. Defendant's comments during the conversation showed callousness toward the victim, and included a claim that he committed the crime for his friend's benefit, not because he found himself short of money. The trial court's decision was well within its broad discretion.
Defendant argues the abstract of judgment does not reflect any credits for time served, even though the trial court calculated a total of 133 days presentence credits. Respondent agrees that the abstract of judgment should be corrected to show that defendant had 116 days actual custody and 17 days additional credits under section 2933.1, for a total of 133 days presentence credits. We agree that no credits are reflected on the abstract of judgment, and accordingly will order the abstract corrected.
The judgment is affirmed. The superior court clerk is directed to issue a corrected abstract of judgment which correctly reflects the 116 days of actual credit and 17 days of credit pursuant to section 2933.1, for a total of 133 days of presentence credits, and to forward the corrected abstract to the Department of Corrections and Rehabilitation, Division of Adult Operations.
We concur: BUTZ , J. MAURO , J.