Filed 2/10/15 P. v. Soria CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067983
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F13900962)
                   v.

GASPER SORIA,                                                                            OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Jonathan
Skiles, Judge.
         Denise A. Rudasill, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Stephen
G. Herndon, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Gomes, Acting P.J., Poochigian, J. and Detjen, J.
       Defendant Gasper Soria pled no contest to assault with a semi-automatic firearm
(Pen. Code, § 245, subd. (b))1 and admitted a firearm use allegation (§ 12022.5,
subd. (a)). The trial court denied probation and sentenced defendant to prison for six
years. On appeal, defendant contends the trial court abused its discretion by denying
probation. He argues his case was unusual and the interests of justice would have been
best served by a grant of probation. We disagree and affirm.
                                         FACTS2

              “On January 20, 2013, at approximately 9:56 p.m., Eduardo R.
       (victim one) and his girlfriend, Ashley M. (victim two), were walking to a
       family member’s home when they approached an intersection. On the
       corner of the street, there were two males, one of them was later identified
       as Gasper Soria (the defendant). As V1 and V2 passed, the defendant
       grabbed V1 on the collar and pulled him backwards. The defendant stated,
       ‘What do you bang, Dog?’ V1 attempted to explain that he was not a gang
       member, and he did not want any problems. It should be noted that V1 is a
       Norteño gang member, but has not been active for the past few years.

              “V1 pulled away from the defendant’s grasp, and he and V2
       continued walking towards their destination. Then, they observed the
       defendant reach into his rear pant pocket and pull out a gun. V1 and V2
       began running, and ducked behind several parked cars. Just then, they
       heard numerous gun shots and saw the defendant and the other male run in
       the opposite direction. V1 and V2 immediately contacted local law
       enforcement.

              “Upon the officers’ arrival, V1 explained that he has not had any
       major problems with any Bulldog gang members in a while; however, just
       two days prior to this incident, his house was shot multiple times with a
       shotgun. An investigation was conducted, and officers located seven
       .380 caliber shell casings on the sidewalk. There were three gun shots in
       the rear window of a vehicle, along with a strike mark on its side. There
       was also another strike mark on a different vehicle, and a gunshot to a
       nearby wall.



1      All statutory references are to the Penal Code unless otherwise noted.
2      These facts are taken from the probation officer’s report.


                                             2
        “Later on that night, another shooting took place in a very close
proximity. Officers arrived on scene and interviewed several witnesses.
They informed law enforcement that there were two males shooting
firearms, and afterwards, they ran into a nearby residence. The address of
the residence was investigated, and one of the people residing there was
said to be the defendant.

       “During the next few days, officers conducted surveillance of the
residence. On numerous occasions, they observed the defendant leaving
and returning to the home. A photo lineup was processed, and V2
positively identified the defendant as being the shooter. A search warrant
was then written and signed for the defendant’s address.

       On January 28, 2013, the search warrant was served at the
defendant’s residence. He was present, and immediately taken into
custody. At the home, officers located a 12-gauge shotgun shell, which
they believed to match the shells located at the scene of the original
shooting. The home owner, Emilio C. was interviewed, and he stated that
the defendant was not at the residence on the night of January 20, 2013. He
further stated that at night he is usually out ‘on the streets.’

        “Under Miranda, the defendant stated that he was home on the night
of the shooting. He declined to make any further comments or answer any
other questions. The defendant was transported and booked into the Fresno
County Jail. [¶] … [¶]

      “The defendant was interviewed by [the probation] officer at the
Fresno County North Jail on June 27, 2013, and provided the following
information:

        “The defendant informed [the probation] officer that he was not
involved in the shooting, and that they arrested the wrong person. He
stated that he does not know how he feels about the case. In regards to
sentencing, he would like to be granted probation, along with a substance
abuse counseling program. [¶] … [¶]

       “The defendant, … age 20, is presumptively ineligible for a grant of
probation, pursuant to [section] 1203[, subdivision ](e)(2), without any
unusual circumstances indicating an interest of justice to grant probation.
He is currently before the Court for sentencing on his first adult felony
conviction. [¶] … [¶]




                                     3
             “To the defendant’s credit, he is youthful, has no criminal history as
      an adult,[3] and admitted guilt at an early stage of the proceedings.
      However, it is concerning to [the probation] officer that the defendant
      denied any involvement during the time of the probation interview.
      Additionally, he denied being an active Bulldog gang member, and stated
      that he only associates with them on occasions. This was clearly an
      occurrence that happened because of gang violence.

             “[The probation] officer is respectfully recommending that probation
      be denied, and that the defendant [be] committed to the California
      Department of Corrections and Rehabilitation. Although factors in
      aggravation (sophistication and planning, violent conduct) outweigh those
      [in] mitigation (early plea), given his youthful age and lack of adult
      criminal history, the mitigated term of three years is recommended.
      Furthermore, the defendant is to serve an additional and consecutive three
      years, pursuant to [section] 12022.5[, subdivision ](a). The total term for
      the defendant to serve in state prison is six years.”
      At the sentencing hearing, the court asked if either side would like to be heard, and
the following occurred:

              “[DEFENSE COUNSEL]: Yes, Your Honor, just briefly. Your
      Honor, we’d ask the Court to consider in this case a finding of unusual
      circumstances in order for the Court to grant probation. [Defendant] is
      21 years old. I believe he has no adult criminal history. I believe he has
      limited juvenile history. He had been employed prior to this incident.
      There are issues as to drug usage that are explained in the report. In
      addition, we gave to the Court a report … recommending the Fresno
      Rescue Mission, which would be a two-year program where he would be
      living in the program receiving the drug treatment program that I believe is
      needed in this case.

              “As to the crime itself, Your Honor, it is a very serious crime that
      could have led to injuries. You know, he wants to apologize for the acts
      that were committed during that incident. There were no injuries. Does
      appear there was a codefendant. As to the statements in the probation
      report, I believe he does take responsibility in his letters to the Court for the
      actions that were committed on that date. He wants to go back into the
      community and become a productive citizen and we believe that the drug


3      Defendant’s juvenile criminal history included battery on school property
(§ 243.2) in 2001 and assault with a deadly weapon (§ 245, subd. (a)(1)) in 2009.


                                              4
treatment would be a key facet as to any rehabilitation. This is his first
felony conviction. Although the felony itself that he’s pled to is a very
serious crime, we do believe there is a basis for the Court to grant probation
under unusual circumstances given the facts of this case and totality of the
case itself.

        “In light of the recommendation of probation, if the Court were to
follow the recommendation of a CDC commitment we’d ask the Court to
stay the enhancement and possibly give him three years so that he could get
punished, do the CDC time and at the same time come back into the
community and obtain the drug treatment program that he, I believe, needs
at this time, Your Honor. Submitted.

       “THE COURT: Help me connect a few dots here, because in the
report from probation [defendant] is saying that he’s not the person that did
this. That the wrong person was arrested. And I’ve got a letter in front of
me that seems [to] go a completely different direction. So I’m a little
confused on what his position is.

       “[DEFENSE COUNSEL]: Your Honor, I believe he pled no
contest. He takes responsibility for the actions that were committed on that
day. There was a codefendant that was never arrested; however, he has
taken responsibility for the actions and has pled in this case admitting
Count 1 and the enhancement.

       “THE COURT: He also admitted personal use of a firearm.

       “[DEFENSE COUNSEL]: Yes.

       “THE COURT: So what he pled to was pulling out a gun and
shooting at a couple people.

       “[DEFENSE COUNSEL]: And we do not deny that, Your Honor.
And we have stated it in the—that this is a very serious, violent crime and
he takes full responsibility for it.

       “THE COURT: Anything by the People?

       “[PROSECUTOR]: Your Honor, this defendant shot at people. We
do not think he should be allowed to a treatment program and we’ll submit
on the Court’s indicated term of three years plus the three-year
enhancement.

       “THE COURT: [Defendant], there’s only one reason that I can
think of that you’re not looking at 50 years to life in prison for murder with
personal use of a firearm, and that’s the bullet didn’t actually hit the person

                                       5
      you were pointing the gun at. I don’t know if you understand how close
      you came to spending the rest of your life in a prison cell because of a bad
      decision. I’ve got no reason to think that you’re not somebody who can be
      perfectly nice and respectful and get along with other people, but a stupid
      decision like this one can change your life forever and it can certainly
      change the person’s life that you’re pointing the gun at. There are some
      actions that can’t simply be dealt with through treatment programs. I’m a
      very large fan of drug treatment as a way of getting back on the right path,
      but when you pull out a gun and shoot at someone, that has to be taken
      seriously. So I can’t do a grant of probation in this case. The facts and
      circumstances are simply too serious for that.

              “Even though this is not going to be probation, hopefully you’re
      going to listen closely to what I’m about to tell you. There’s going to be a
      lot of temptation to engage in gang activity while you’re serving this time.
      If you do that, if you do something other than trying to stay out of trouble
      while you serve this sentence, it’s going to compound because this is a
      strike offense, which means if you pick up a felony in prison it’s going to
      double that time and it’s just going to snowball. So this is an opportunity to
      take stock of where you’re at and make some changes so that this doesn’t
      go downhill to a very, very bad place.

              “Given your youth and the fact this is your first felony conviction as
      an adult, as to Count 1 I’m imposing the mitigated term. That’s the lowest
      term available. That’s still three years, but the aggravated term is nine. So
      it’s the lower of the terms. That is enhanced because of the personal use of
      a firearm by an additional three years. That’s the [section] 12022.5
      enhancement that was admitted. That means the total aggregate term is
      six years in custody. This is a state prison commitment, not a local
      commitment, because of the personal use of the firearm.”
                                     DISCUSSION
      Defendant was presumptively ineligible for probation based on section 1203,
subdivision (e)(2) because he used a deadly weapon in the commission of the crime:

             “(e) Except 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: [¶] ... [¶]

            “(2) Any person who used, or attempted to use, a deadly weapon
      upon a human being in connection with the perpetration of the crime of
      which he or she has been convicted.”



                                            6
       In determining whether a statutory limitation on probation, such as this, has been
overcome, the trial court is required to use the criteria set forth in California Rules of
Court, rule 4.413, which provides:

              “(a) Consideration of eligibility

              “The court must determine whether the defendant is eligible for
       probation.

              “(b) Probation in unusual cases

               “If the defendant comes under a statutory provision prohibiting
       probation ‘except in unusual cases where the interests of justice would best
       be served,’ or a substantially equivalent provision, the court should apply
       the criteria in (c) to evaluate whether the statutory limitation on probation is
       overcome; and if it is, the court should then apply the criteria in rule 4.414
       to decide whether to grant probation.

              “(c) Facts showing unusual case

             The following facts may indicate the existence of an unusual case in
       which probation may be granted if otherwise appropriate:

              “(1) Facts relating to basis for limitation on probation

               “A fact or circumstance indicating that the basis for the statutory
       limitation on probation, although technically present, is not fully applicable
       to the case, including:

              “(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; and

               “(B) The current offense is less serious than a prior felony
       conviction that is the cause of the limitation on probation, and the
       defendant has been free from incarceration and serious violation of the law
       for a substantial time before the current offense.

              “(2) Facts limiting defendant’s culpability

             “A fact or circumstance not amounting to a defense, but reducing the
       defendant’s culpability for the offense, including:


                                               7
              “(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;

              “(B) The crime was committed because of a mental condition not
       amounting to a defense, and there is a high likelihood that the defendant
       would respond favorably to mental health care and treatment that would be
       required as a condition of probation; and

              “(C) The defendant is youthful or aged, and has no significant record
       of prior criminal offenses.”
       We review a trial court’s determination that a case may or may not be unusual for
an abuse of discretion. (People v. Stuart (2007) 156 Cal.App.4th 165, 178.) “[A] trial
court does not abuse its discretion unless its decision is so irrational or arbitrary that no
reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
“A court abuses its discretion ‘whenever the court exceeds the bounds of reason, all of
the circumstances being considered.’ [Citation.] We will not interfere with the trial
court’s exercise of discretion ‘when it has considered all facts bearing on the offense and
the defendant to be sentenced.’” (People v. Downey (2000) 82 Cal.App.4th 899, 909-
910.) Further, “if the statutory limitations on probation are to have any substantial scope
and effect, ‘unusual cases’ and ‘interests of justice’ must be narrowly construed and, as
rule 413 provides, limited to those matters in which the crime is either atypical or the
offender’s moral blameworthiness is reduced.” (People v. Superior Court (Dorsey)
(1996) 50 Cal.App.4th 1216, 1229.)
       Defendant argues that in his case the use of a deadly weapon was substantially less
serious than the typical use of a deadly weapon because no one was injured and because
the crime was not perpetrated in furtherance of another felony. He points out that he was
only 20 years old, had no recent adult record of similar crimes, and had an alcohol and
methamphetamine problem.
       We, however, see defendant’s crime as senseless and brazen. He shot at two
people who were simply walking on the sidewalk. They ran for cover and survived the
attack. There was nothing less serious about this crime than any other senseless and

                                               8
brazen gang shooting. And this was not defendant’s first assault with a deadly weapon.
We, like the trial court, can fathom no reason why defendant should have been granted
probation. The trial court did not abuse its discretion.
                                      DISPOSITION
       The judgment is affirmed.




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