(Super. Ct. No. CRF112020)
The opinion of the court was delivered by: Raye , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Gurshinder Bains Singh entered a negotiated plea of no contest to resisting an officer by the use of force or violence (Pen. Code, § 69; count 2) in exchange for dismissal of the remaining counts. Count 1 (battery on an officer; Pen. Code, § 243, subd. (c)(2)) was dismissed with a Harvey waiver.*fn1 The court denied probation and sentenced defendant to county jail for the upper term of three years.
Defendant appeals, contending the trial court abused its discretion in denying probation and in imposing the upper term. We will affirm.
About 1:00 p.m. on September 15, 2011, Sutter County Sheriff's Detective Bryan Simpson, not in uniform but wearing a badge and a gun on his right hip, investigated a report that a motorcycle was parked within two feet of the front doors to the county building and was considered to be a fire hazard. The detective removed the key from the motorcycle's ignition. While the detective spoke with dispatch concerning the license plate, a man later identified as defendant approached, wearing a motorcycle helmet. Defendant confirmed that he owned the motorcycle. After identifying himself, the detective twice asked defendant why he had parked the motorcycle in that location, and defendant responded each time that handicapped people parked there but admitted he was not handicapped. The motorcycle was not in a handicapped parking spot but in an entryway.
The detective did not see a handicapped placard or plate and asked for defendant's driver's license, registration, and proof of insurance. At first defendant balked at the request, stating that the detective was not a " 'cop,' " but when the detective pointed to his badge and identified himself as with the sheriff's department, defendant provided his driver's license. In talking with defendant, the detective noticed he exhibited signs and symptoms of being under the influence and had a strong odor of alcohol on his breath. Defendant at first denied that he had been drinking but when told he smelled of alcohol admitted he had " 'one shot, maybe.' "
The detective contacted dispatch for a uniformed officer. Defendant mumbled he wanted a " 'real cop' " and the detective's badge number. The detective stated that he did not have a number, and defendant stepped toward the detective to look at the badge. Defendant then lunged toward the detective, grabbed his wrist, and placed his arm around the officer's neck. The two struggled and they fell to the ground. The detective directed defendant to stop resisting and stated he was under arrest. Defendant refused and said, " 'Is that all you got, big man? You're not going to win this one' " and " 'You are not strong. You're not going to win.' " When the detective used finger pressure below defendant's eyes, defendant asked, " 'That's it?' " About that time, other officers arrived and defendant was handcuffed and arrested.
The detective suffered a laceration on his hand and abrasions on his knee and elbow. Defendant apologized for fighting with the detective and admitted that he knew the detective was a law enforcement officer. He admitted drinking some wine earlier in the day. Two preliminary alcohol screening tests revealed blood alcohol content readings of .057 and .056 percent, and an Intoxilyzer test revealed .04 percent.
The probation officer reported that defendant was presumptively ineligible for probation because of his two prior felony convictions. (Pen. Code, § 1203, subd. (e)(4).) The probation officer's report listed seven factors weighing against a grant of probation and only one in favor, that defendant expressed a willingness to comply with probation terms and conditions.*fn2
In recommending the upper term, the probation report listed five factors in aggravation and none in mitigation.*fn3
In a statement in mitigation, defense counsel cited the immigration consequences to defendant if he were sentenced to one or more years in confinement: defendant arrived in the United States in 1992 at 20 years of age; he did not become a citizen but was lawfully admitted for permanent residence, and if his offense were deemed a deportable offense, he would lose his lawful status and be deported. Acknowledging that defendant was ineligible for probation except in an unusual case, defense counsel cited defendant's mental condition, which significantly reduced ...