                                                                                         07/27/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs July 19, 2017

                   STATE OF TENNESSEE v. ERICK TENAZ

                Appeal from the Criminal Court for Davidson County
                    No. 2015-B-1422 Mark J. Fishburn, Judge


                            No. M2016-02442-CCA-R3-CD


The defendant, Erick Tenaz, appeals his Davidson County Criminal Court guilty-pleaded
conviction of conspiracy to commit second degree murder, claiming only that the trial
court erred by ordering that he serve his entire nine-year sentence in confinement.
Discerning no error, we affirm.

           Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS and TIMOTHY L. EASTER, JJ., joined.

Dwight E. Scott, Nashville, Tennessee, for the appellant, Erick Tenaz.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Jan Norman, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

              Originally charged with three counts of attempted first degree murder and
one count of felony murder, the defendant pleaded guilty to a single count of conspiracy
to commit second degree murder as a Range I offender, with the length and manner of
service of the sentence to be determined by the trial court following a sentencing hearing.
The defendant failed to include a copy of his own guilty plea submission hearing in the
record. He did, however, exhibit to the sentencing hearing and include in the record on
appeal a transcript of the hearing for his co-defendant, Sergio Baeza, in which the State
summarized the facts of the offenses as follows:

             [T]he State’s proof would have been that in the early morning
             hours of Sunday, September 8th, 2013, Sergio Baeza, [the
defendant], Issac Tenaz and Luis Diaz [sic] drove to Club
Cielo, which is an after-hours nightclub, it is located at 15115
Old Hickory Boulevard. Surveillance video shows all four
men arrive at the club together in a black Honda Accord
around 4 o’clock a.m. All four of the men are standing
outside of the club near the entrance. And they arrive about
4:00 a.m., they go inside the club, they spend a little bit of
time in the club, and then sometime later they’re standing
outside the club near the entrance when Issac Tenaz appears
to get into a verbal confrontation with a male black. During
this confrontation, the surveillance video shows Rafi Shalizi
swing a Grey Goose bottle and hit Issac Tenaz over the head
causing a fairly deep laceration, immediately after this, Mr.
Baeza, [the defendant], Issac Tenaz and Mr. Lopez run from
the club, and they run back to the black Honda Accord, which
they had parked in front of the Porter Paints parking lot. The
club security outside the club immediately maces an entire
group of individuals because of this incident, Rafi Shalizi is
one of the people in the area when the security officers
sprayed the mace. Shivon A[bd]ullatif, Nej[y]ar Osman,
Priscilla Hernandez all go to aid Mr. Shalizi who is suffering
from the effects of the mace, and they walk to an area to the
right of the front entrance of the club where Mr. Shalizi lays
on the ground. Shivon Abdullatif, Mr. Osman and Ms.
Hernandez also began to suffer the effects of the mace and
they are standing, bent over in the immediate area of Mr.
Shalizi, who is lying on the ground.

        Surveillance video from businesses in the area, as well
as statements given by both [the defendant] and Issac Tenaz
indicate that when Mr. Baeza, both Tenaz brothers and Mr.
Lopez reached the black Honda Accord in the nearby parking
lot that [the defendant] got into the driver’s seat, Luis Lopez
got into the front passenger’s seat, Issac Tenaz got in the back
passenger’s seat, and Sergio Baeza got into the back seat
behind the driver.

       Surveillance video also shows that when the black
Honda Accord is turned on, the headlights immediately come
on, the car is backed up, and then the headlights are turned
off. [The defendant], who is the driver of the car, drives
                              -2-
             toward the front entrance of Club Cielo, but is stopped by
             traffic of others driving in and out of the area. Once their
             vehicle reaches the area where Mr. Shalizi, Shivon Abdullatif,
             [Nejyar] Osman and Priscilla Hernandez are lying, standing
             and bent over, the surveillance video shows muzzle flashes
             coming from the driver’s side of the black Honda Accord.
             [The defendant] and Issac Tenaz both told detectives in
             interviews that Sergio Baeza fired multiple shots out of the
             car at that group of people. Nej[y]ar Osman was struck once
             in the hip and Shivon Abdullatif was shot eight times and
             those gunshots resulted in his death.

                    There were approximately nine 40-caliber cartridge
             casings, which were found at the scene. There was also a 40-
             caliber magazine and cartridges that were later found by
             detectives in [the defendant’s] bedroom and there was a nine
             millimeter magazine located in Issac Tenaz’s bedroom,
             neither of the guns were located.

Mr. Baeza then told the court that, as he and his co-defendants started to drive away from
the club, they “seen them” and “just ended up shooting them” for “[r]etaliation for what
they did, basically.” Mr. Baeza stated that the defendant had provided him with the
handgun earlier in the night. According to Mr. Baeza, he asked the group in the car,
“‘What you want me to do, you want me to go ahead and do something,’” and both the
defendant and Issac Tenaz responded, “‘Do what you want to do, do what you wanna
do.’” Mr. Baeza testified that, following the shooting, he gave the gun to the defendant
and Issac Tenaz, and Mr. Baeza “guess[ed]” that the brothers “got rid of it.”

              At the sentencing hearing, Metropolitan Nashville Police Department
(“Metro”) Detective Danny Warren testified that he was the lead investigator in the
homicide of Mr. Abdullatif. Through the testimony of Detective Warren, the State
introduced into evidence video surveillance footage taken from both Club Cielo and the
neighboring Porter Paints store. Detective Warren determined that the defendant was
driving the vehicle from which the gunshots emanated.

              Detective Warren interviewed both the defendant and Isaac Tenaz. Both
men initially denied any involvement in the shooting, but the defendant eventually
admitted that Sergio Baeza was the shooter. Both the defendant and his brother admitted
to membership in the SUR 13 gang, and Detective Warren opined that the defendant’s
reluctance to admit that Mr. Baeza was the shooter stemmed from his fear over
“snitch[ing] on another gang member.”
                                           -3-
             Detective Warren testified that Mr. Abdullatif suffered multiple gunshot
wounds and that nine Smith and Wesson RP casings were recovered from the crime
scene. Officers who later conducted a search of the defendant’s residence located a pistol
magazine “that matched the shell casings at the scene.”

              Detective Warren opined that Mr. Shalizi, who had struck Isaac Tenaz with
a bottle, was likely the intended target of the shooting. Detective Warren conceded that
no physical evidence indicated that either of the Tenaz brothers had encouraged Mr.
Baeza to fire his weapon, but he believed that the defendant’s turning his vehicle’s lights
on and off prior to the shooting “was a complicit act.” Detective Warren stated that Mr.
Osman had been struck by a bullet on the night in question but that the wound was not
fatal.

              Maria Saenz, the defendant’s mother, testified that the defendant could
reside with her if he were released from confinement. On cross-examination, Ms. Saenz
acknowledged that both the defendant and his brother were living with her at the time of
the shooting. Ms. Saenz was aware that police officers had found drugs in her home in
2010, but she did not recall that officers had located guns at that time as well. Ms. Saenz
had seen the defendant with a handgun prior to the shooting of Mr. Abdullatif, but the
defendant had told her that he needed the gun for protection because their residence had
been robbed on three occasions. Ms. Saenz was unaware that either of her sons were in a
gang, stating that “if they would have been involved with gangs, I feel like they would
have been in more trouble because of gang trouble, but they were never involved with
anything or in trouble because of that.” With respect to her familiarity with the other
defendants, Ms. Saenz had heard of Mr. Baeza but had never met him, and she knew Mr.
Lopez, but she was unsure whether he was a gang member. Ms. Saenz testified that the
defendant “always worked,” typically in construction, but that “sometimes the work
would run out.” Ms. Saenz admitted that the defendant was in juvenile custody for
approximately nine months.

              Ileana Tenaz, the defendant’s sister, presented to the court a letter from a
painter indicating that the defendant could work for him upon his release from
confinement. Ms. Tenaz stated she would also assist the defendant in obtaining
employment. On cross-examination, Ms. Tenaz admitted that she was aware of the
defendant’s involvement with guns and drugs. Ms. Tenaz denied that the defendant and
Isaac Tenaz were gang members. Ms. Tenaz was aware, however, that her brothers were
“running around with gang members.”




                                           -4-
             The defendant testified and denied gang membership but admitted
associating with gang members. The defendant agreed that he had hesitated to turn in
Mr. Baeza because he feared for the safety of his family.

               With respect to the night of the shooting, the defendant admitted that he
owned the gun used in the shooting and stated that he had purchased it a few months
earlier for protection. According to the defendant, Mr. Baeza had asked him for the gun
earlier in the night before attending a party but that Mr. Baeza had left the gun inside the
defendant’s vehicle while the group entered Club Cielo. The defendant denied knowing
that Mr. Baeza intended to use the gun, and he denied that anyone in the vehicle
encouraged Mr. Baeza to fire the weapon. The defendant stated that he “never intended
for [any]body to get hurt.”

              The defendant read a prepared statement to the court, in which he stated
that he took “full responsibility for [his] actions” in “allowing someone else to use” his
handgun to take “an innocent life and injure[] other people.” If released from
incarceration, the defendant stated that he intended to “work[], . . . move on from all this,
get into a church, do what [he] can to better [him]self, help [his] family out.”

              On cross-examination, the defendant admitted that his brother and most of
his friends were members of the Surenos gang, but he denied being an “official member.”
The defendant conceded that Surenos gang members were “giving [him] free phone
calls” from jail. The defendant also admitted that he was aware when he provided the
gun to Mr. Baeza that Mr. Baeza intended to “shoot” anyone at the party who did not like
him. With respect to the shooting at the club, the defendant acknowledged driving the
car and turning off the vehicle’s lights but he could not explain why he had turned the
lights off and then turned them on again following the shooting. The defendant testified
that he threw the gun into a lake a few days after the shooting.

               At the conclusion of the hearing, the trial court denied all forms of
alternative sentencing and imposed a sentence of nine years’ incarceration. In ordering
confinement, the trial court found numerous enhancement factors to be applicable: that
the defendant had a history of criminal convictions or behavior, including his six-year
history as a drug dealer as well as his juvenile criminal history of escape from a juvenile
detention facility, aggravated burglary, possession of a handgun, and possession with
intent to sell marijuana; that the offense involved more than one victim; that the injuries
inflicted upon the victims were particularly great; that the defendant provided the gun
used in the offense and was aware that the shooter intended to use it; and that the
defendant had no hesitation about committing the offense when the risk to human life
was high. With respect to mitigating factors, the court found that the defendant
eventually assisted law enforcement officers by identifying Mr. Baeza as the shooter.
                                            -5-
                With respect to alternative sentencing, the court found the defendant’s
mental and physical health to be “excellent,” his work history to be “all right,” and his
educational history to be “lacking.” The court found the defendant’s character and social
history provided “little confidence that [he] will be able to stay on the straight and narrow
if . . . granted an alternative sentence,” primarily due to the defendant’s association with
gang members. Regarding family support, the court found that the defendant had
rejected support from his family because his parents’ strong work ethic “was an
embarrassment” to him. The trial court found that the defendant had previously escaped
from a juvenile detention facility, undercutting his compliance with court-ordered
programs. The court also specifically found that the defendant had not been truthful in
his testimony. Finding this to be “a very serious crime,” the court concluded its findings
by stating that alternative sentencing “is not appropriate because confinement is
necessary to avoid depreciating the seriousness of the offense.”

              In this timely appeal, the defendant argues that the trial court erred by
ordering a fully-incarcerative sentence. The State responds that the denial of alternative
sentencing was appropriate.

               Our standard of review of the trial court’s sentencing determinations in this
case is whether the trial court abused its discretion, but we apply a “presumption of
reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707
(Tenn. 2012). The application of the purposes and principles of sentencing involves a
consideration of “[t]he potential or lack of potential for the rehabilitation or treatment of
the defendant . . . in determining the sentence alternative or length of a term to be
imposed.” T.C.A. § 40-35-103(5). Trial courts are “required under the 2005
amendments to ‘place on the record, either orally or in writing, what enhancement or
mitigating factors were considered, if any, as well as the reasons for the sentence, in order
to ensure fair and consistent sentencing.’” Bise, 380 S.W.3d at 706 n.41 (citing T.C.A. §
40-35-210(e)). Under the holding in Bise, “[a] sentence should be upheld so long as it is
within the appropriate range and the record demonstrates that the sentence is otherwise in
compliance with the purposes and principles listed by statute.” Id. at 709. The supreme
court expanded the holding in Bise to the trial court’s decision regarding probation
eligibility and other forms of alternative sentencing, ruling “that the abuse of discretion
standard, accompanied by a presumption of reasonableness, applies to within-range
sentences that reflect a decision based upon the purposes and principles of sentencing,
including the questions related to probation or any other alternative sentence.” State v.
Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).



                                            -6-
              The imposition of a nine-year sentence in this case mandated the trial
court’s considering probation as a sentencing option. See T.C.A. § 40-35-303(a), (b).
Traditionally, the defendant has born the burden of establishing his “suitability for full
probation.” State v. Mounger, 7 S.W.3d 70, 78 (Tenn. Crim. App. 1999); see T.C.A. §
40-35-303(b). Such a showing required the defendant to demonstrate that full probation
would ‘“subserve the ends of justice and the best interest[s] of both the public and the
defendant.’” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990) (quoting
Hooper v. State, 297 S.W.2d 78, 81 (1956), overruled on other grounds by State v.
Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000)).

              When a trial court orders confinement and therefore rejects any form of
alternative sentencing such as probation, split confinement, or periodic confinement, it
must base the decision to confine the defendant upon the considerations set forth in Code
section 40-35-103(1), which provides:

             (1) Sentences involving confinement should be based on the
             following considerations:

             (A) Confinement is necessary to protect society by restraining
             a defendant who has a long history of criminal conduct;

             (B) Confinement is necessary to avoid depreciating the
             seriousness of the offense or confinement is particularly
             suited to provide an effective deterrence to others likely to
             commit similar offenses; or

             (C) Measures less restrictive than confinement have
             frequently or recently been applied unsuccessfully to the
             defendant; . . . .

T.C.A. § 40-35-103(1). In addition, courts “should consider the circumstances of the
offense; the defendant’s criminal record, social history, and present condition; the
deterrent effect on the defendant; the defendant’s potential or lack of potential for
rehabilitation; and the best interests of both the defendant and the public.” State v.
Jonathon Wayne Thompson, No. M2016-00129-CCA-R3-CD, slip op. at 7 (Tenn. Crim.
App., Nashville, Nov. 4, 2016) (citing State v. Kendrick, 10 S.W.3d 650, 656 (Tenn.
Crim. App. 1999); T.C.A. § 40-35-103(5)). Moreover, “[c]andor is a relevant factor in
assessing a defendant’s potential for rehabilitation,” and “the lack of candor militates
against the grant of probation.” State v. Justin Daniel Adams, No. M2016-00835-CCA-
R3-CD, slip op. at 10 (Tenn. Crim. App., Nashville, March 8, 2017) (citing State v.
Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994); Kendrick, 10 S.W.3d at 656).
                                           -7-
              In our view, the record fully supports the sentencing decision of the trial
court. The defendant’s involvement in the firing of a handgun into a crowd of people
was certainly a serious offense that warranted incarceration, and the defendant’s lack of
candor and close gang affiliation clearly weighed against an award of alternative
sentencing. Under these circumstances, we cannot say that the trial court abused its
discretion by ordering that the defendant serve his entire sentence in confinement.

             Accordingly, we affirm the judgment of the trial court.

                                                _________________________________
                                                JAMES CURWOOD WITT, JR., JUDGE




                                          -8-
