Filed 10/7/15 P. v. Gomez CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066894

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCE336328)

VICTOR G. GOMEZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of San Diego County, Patricia K.

Cookson, Judge. Affirmed.



         Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for

Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Teresa

Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
       Defendant and appellant Victor Gomez pleaded guilty to robbery in count 1 (Pen.

Code,1 § 211), after he used what turned out to be a fake gun to rob a liquor store in

Santee, California while wearing a beanie over his head and a bandana covering his face.

As part of his guilty plea, the court ordered Gomez to undergo a 90-day diagnostic study.

(§ 1203.03.) After completion of that study, the court denied Gomez's application for

probation and sentenced him to prison for the low term of two years.

       Gomez on appeal contends the court abused its discretion by refusing to grant him

probation. Specifically, he contends that the court erred in relying on two of the reports

prepared in connection with the diagnostic study, which recommended prison, and on the

probation reports, which likewise recommended prison, because those reports relied on

information that was in part incorrect. Instead, he contends the court should have relied

on and adopted the recommendation of a third report, also prepared in connection with

the study, which he claims was more thorough and which recommended probation.

Affirmed.

                    FACTUAL AND PROCEDURAL OVERVIEW2

       In the evening on December 10, 2013, the San Diego County Sheriff's Department

received a report of robbery at a liquor store in Santee. The suspect, later identified as

Gomez, was described as wearing a dark-colored hat or beanie and a bandana over his



1      All further statutory references are to the Penal Code.

2       This summary is derived in part from the probation report, given Gomez pleaded
guilty.
                                              2
face. The suspect was armed with what appeared to be a real handgun (which, as noted,

turned out to be fake). It was reported the suspect took all the money from the cash

register.

       Less than five minutes after the report, a sheriff deputy observed a man later

identified as Gomez wearing a blue long-sleeved shirt and walking on a street near the

liquor store. The deputy pulled up behind the man and used a spotlight to illuminate him.

The man immediately put both hands in the air. On contact, the man was nervous and

was sweating profusely on what was otherwise an abnormally cold San Diego night. The

man also appeared winded.

       When the deputy asked the man what was inside his backpack, the man answered,

" 'Props for a play.' " When the deputy asked what kind of props, the man stated, " 'A cap

gun.' " The deputy conducted a " 'pat down' " search of the man for weapons and found a

" 'large wad' " of cash. In the backpack, the deputy found an "unloaded 9 mm handgun,

[a] green bandana, black gloves, [a] grey long sleeve t-shirt, and a . . . beanie."

       At a curbside lineup, the victim could not positively identify the man as the

suspect because the suspect had been wearing the beanie and the bandana during the

robbery. However, the victim positively identified the bandana and the handgun used by

the suspect.

       Deputies subsequently obtained the liquor store's surveillance video. It showed a

male suspect enter the store wearing a dark-colored beanie over his head, a blue long-

sleeve shirt and grey jeans. The suspect covered his face with a dark-colored bandana.


                                              3
The suspect entered through the front door, pointed a gun at the store clerk and gave the

store clerk "zip ties." The video showed the suspect then helped the store clerk tighten

the zip ties around the clerk's hands, before walking around the counter, opening the cash

register and taking all of the money.

       The store clerk told police he was traumatized by the robbery, as the clerk had

personally known people who had been shot and killed during liquor store robberies. The

clerk also told police that as the suspect was taking the money from the cash register, a

woman and her son walked into the store. According to the store clerk, this startled the

man and caused him to run out of the store.

       Pursuant to a Fourth waiver, deputies searched Gomez's bedroom later that same

night. The search revealed a wallet, a driver's license, a social security card and credit

cards belonging to a third party. Deputies also found under Gomez's bed prescription

medicine belonging to a different third party. A records check showed the owner of the

driver's license had previously reported his wallet stolen from his car. The owner

subsequently confirmed the wallet and its contents belonged to him. Gomez was charged

in count 2 with receiving stolen property. (§ 496, subd. (a).)

       Gomez pleaded guilty to "unlawfully, and by means of force and fear, [taking]

personal property from the immediate possession of another." As part of the plea

agreement, count 2 was dismissed, as was the firearm enhancement charged in count 1.

The plea agreement provided Gomez still faced a maximum five-year sentence on count

1.


                                              4
                                     DISCUSSION

      A. Additional Background

      When the court took Gomez's guilty plea, it noted his case was "necessarily a

prison case." However, because of Gomez's youth (i.e., he was 21 at the time of the

offense), the court as noted ordered a 90-day diagnostic evaluation and stated it would

follow the recommendation from the California Department of Corrections and

Rehabilitations (CDCR).

      The record shows there were three recommendations from CDCR. Correctional

Counselor J. Magallon recommended the court sentence Gomez to prison. In reaching

this opinion, Magallon relied on Gomez's probation report, a personal interview with

Gomez, and a case conference with a unit officer where Gomez was being housed.

      Gomez's account of the robbery was the same as was provided in the probation

report. Gomez told Magallon he needed money to survive and felt he was not meeting

his parent's expectations of him. Gomez stated he should not have been "so impulsive" in

committing the robbery and instead should have gone to the welfare office to apply for

food stamps and general aid.

      In recommending a prison sentence, Magallon noted that the robbery was a serious

felony offense as defined in section 667.5, subdivision (c)(9); that Gomez in January

2011 had been convicted of misdemeanor theft in violation of section 484 and placed on




                                            5
three years' probation; that Gomez had his probation revoked five times;3 that Gomez

stated he was addicted to marijuana and used "wax," or a concentrate of marijuana, by

spraying liquid nitrogen into a glass tube containing marijuana, which then froze the THC

crystals which are then vaporized; and that Gomez had failed to pay his $635 fine as a

result of the 2011 conviction. As such, Magallon found that Gomez's criminal conduct

had increased in "severity" and in "sophistication" and that Gomez's "potential for

functioning successfully in probation [was] minimal."

       Classification and Parole Representative Doreen Marquez also recommended the

court sentence Gomez to state prison. Marquez in her report incorrectly stated that

Gomez pleaded guilty to first degree residential burglary in violation of sections 459 and

460. In any event, in recommending prison Marquez noted that Gomez pleaded guilty to

a crime that was a serious felony as defined in section 667.5, subdivision (c) (which in

fact is true); that she agreed with Magallon's conclusion that Gomez's chances for success

on probation were minimal; and that she believed Gomez posed a "significant" threat to

the safety of the community.

       A third report was done by Michael Flesock, Ph.D, staff clinical psychologist.

Flesock recommended the court sentence Gomez to probation. Flesock based his

recommendation on two interviews with Gomez that lasted a total of 175 minutes, and on

a March 6, 2014 psychological evaluation report of Gomez. Flesock noted that Gomez


3      Gomez disputes his probation on the misdemeanor theft was revoked five times.
We note, however, the record is ambiguous on the number of times it was revoked and
the reason or reasons it was revoked.
                                             6
spoke about the relationship, or lack thereof, between him and his parents for 15 to 20

minutes and that Gomez described his relationship with his father as "distant, avoidant,

and strained" and his relationship with his mother as "close and loving," although she

tended to " 'micromanage[] him and be manipulative.' "

       Flesock noted when Gomez was about 14 he began receiving treatment for

depression and ADHD. When Gomez was between the ages of 18 and 21, he took

psychiatric medications sporadically, mainly for depression. Gomez also began smoking

marijuana in high school and estimated he was smoking three-quarters of an ounce each

week by age 18. When Gomez turned 19, he began using concentrated THC in the form

of "butane hash oil, or 'wax.' " According to Flesock, Gomez thereafter used "wax"

exclusively. Gomez reported he attended outpatient substance abuse treatment for six

months when he was 18, then left the program after relapsing. Gomez went back to the

program when he was 19 or 20 and left the program four months later, confident that he

could remain sober. However, Gomez relapsed two weeks later when he started using

"wax" again.

       Flesock noted that Gomez had a "severe problem" with marijuana dependence;

that Gomez's use of "wax" in increasing amounts may have caused Gomez "neurological

damage" because of its extreme potency and Gomez's "high intensity substance abuse";

and that this in part could explain why Gomez committed the robbery, as Gomez

indicated he had stopped using "wax" a month or two before the crime. In any event,




                                            7
Flesock concluded the robbery was a "constellation of extreme circumstances" that were

"unlikely to recur."

       The October 14, 2014 supplemental probation report recommended the court

sentence Gomez to five years in state prison. In so doing, the report noted during his

probation interview Gomez "blamed his family and the possibility he would be asked to

leave the family home as the reason for the commission of the robbery. He was visibly

upset when talking about his family, especially his father. The undersigned would point

out that the appropriate response for not agreeing with parental rules, at the age of 21, is

to get a job and move out, not rob a liquor store with a weapon. The fact the defendant

used a weapon, concealed his identity with a bandana and beanie, and had the forethought

to bring zip ties for the clerk, shows planning on the part of the defendant. Although the

defendant appears to have lacked a 'get away plan' the actual robbery does not appear to

be an impulsive act. No matter the type of handgun used, the victim was threatened with

said weapon and believed his life was in danger. Also concerning to the undersigned is

the fact a mother and son walked into the store during the commission of the offense.

Not only was the clerk in danger, but the potential for citizens to be hurt, traumatized, or

worse, was also a possibility."

       The record shows Gomez submitted a 27-page statement in mitigation in support

of his contention the court should grant him probation. The statement includes myriad

letters in support of Gomez.




                                              8
       At the sentencing hearing, the record shows the court heard from Gomez, both of

Gomez's parents and the argument of counsel, and stated it had reviewed all the reports

and the statement in mitigation. The record shows defense counsel informed the court of

some incorrect information in connection with the diagnostic reports of Gomez. In

connection with Magallon's report, defense counsel argued Gomez did not have several

violations while on misdemeanor probation (from the 2011 offense). Instead, it was

defense counsel's "understanding" that Gomez had only one violation "for not checking

in," and that "then there was a fine issue where apparently Mr. Gomez got behind in

fines." Thus, defense counsel did not believe there were five violations as set forth in the

Magallon report.4

       Defense counsel next argued Marquez's report was less than credible because

Marquez incorrectly stated in that report that Gomez had been convicted of first degree

burglary and because she, unlike the other two evaluators, did not actually interview

Gomez in connection with her report.

       At the conclusion of the testimony, as noted, the court sentenced Gomez to the low

term of two years in state prison, stating in part as follows:

       "This is a tough case because, Mr. Gomez, you have a lot of family support. I

have to tell you I was taken aback by the statements you made . . . about the vitriol, the

hatred between your parents, the sibling rivalry. What I got from that is I do believe

you're a danger to society.


4      See footnote 3, ante.
                                              9
       "You were diagnosed as being antisocial. The marijuana dependency, not a

problem. When you elevated it to wax, that's a whole different spectrum. You claimed

you were not under the influence when you committed the robbery. I will accept your

statement at that. But I'm not going to quarrel with experts who find you to be a danger

to the community. I'm telling you this because I'm going to deny probation.

       "Having said all that, the probation officer recommended the upper term. I am

going to cite factors to give you the lower term, because I am cognizant of the family

support. I'm going to accept you at face value; that seven months of sobriety has helped

you out, but you still need to be punished for this crime."

       B. Guiding Principles and Analysis

       " 'All defendants are eligible for probation, in the discretion of the sentencing

court [citation], unless a statute provides otherwise.' [Citation.] 'The grant or denial of

probation is within the trial court's discretion and the defendant bears a heavy burden

when attempting to show an abuse of that discretion. [Citation.]' [Citation.] 'In

reviewing [a trial court's determination whether to grant or deny probation,] it is not our

function to substitute our judgment for that of the trial court. Our function is to

determine whether the trial court's order granting [or denying] probation is arbitrary or

capricious or exceeds the bounds of reason considering all the facts and circumstances.'

[Citation.]" (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311, disapproved on other

grounds in People v. Cook (2015) 60 Cal.4th 922, 939.)




                                             10
       Here, Gomez contends the court's decision to impose the low term of two years

was "simply not the proper choice." Specifically, Gomez contends that the court erred

when it relied on the two reports prepared by the CDCR, which recommended Gomez be

sent to prison, and on the probation report and supplemental probation report, which also

recommended a prison sentence. Gomez instead contends the court should have relied on

Flesock's report, which he contends is inherently more reliable because Flesock spent the

most time with Gomez and thus allegedly had "true insight" into Gomez.

       As noted ante, the record clearly shows at the time of sentencing that the trial

court was aware of both the aggravating and mitigating factors related to Gomez and of

the mistake in the Marquez report regarding the offense Gomez committed. The record

also clearly shows the court knew it had the discretion to grant Gomez probation and

recognized Gomez's strong family support, but decided against doing so on the basis that

Gomez already had exhibited antisocial behavior. The court also found Gomez was a

threat to the community, which finding, we note, is amply supported by the record in

light of the evidence. Indeed, Gomez wore a bandana around his face, used what

appeared to be a real handgun and robbed a liquor store because he needed money,

believing his family/father was then in the process of kicking him out of the family home.

       That Flesock recommended probation does not change our conclusion the trial

court properly exercised its broad discretion in denying Gomez probation in this case. It

was up to the trial court, and it alone, to determine whether to accept Flesock's

recommendation and grant Gomez probation and require among other conditions that he


                                             11
attend an inpatient drug treatment program. That the trial court rejected that

recommendation and instead sentenced Gomez to the low term of two years was clearly

within the trial court's discretion.

          California Rules of Court, rule 4.414 (rule 4.414) provides criteria affecting the

decision to grant or deny probation. Only a single factor set forth in rule 4.414 is

required to justify a denial of probation. (People v. Scott (1994) 9 Cal.4th 331, 350, fn.

12.) A trial court may reject or disregard any mitigating circumstance without stating

reasons. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.)

          Here, looking at rule 4.414, we note there are several factors that apply showing

the trial court was justified in denying Gomez probation, including that the crime was

serious, as noted (rule 4.414(a)(1)), and that Gomez was an "active participant" in the

crime (rule 4.414(a)(6)); that Gomez was in fact armed with what appeared to be a real

gun (rule 4.414(a)(2)); and that the victim of the robbery—the store clerk—was

vulnerable, as he was working behind the counter when Gomez pointed a gun at him, and

was traumatized by the robbery (rule 4.414(a)(3)).

          Moreover, as noted, the record also shows the court found Gomez was antisocial

and dangerous to society, a finding supported by the record. The record also supports the

finding Gomez's criminal conduct was becoming increasingly serious. (Rule 4.414(b)(1)

& (8).)




                                                12
                                  DISPOSITION

     The judgment of conviction is affirmed.



                                                BENKE, J.

WE CONCUR:


McCONNELL, P. J.


McDONALD, J.




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