(Super. Ct. No. CRF086580)
The opinion of the court was delivered by: Blease , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ...