Filed 1/7/15 P. v. Vasquez 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067346
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F12905290)
                   v.

RICHARD VASQUEZ, JR. et al.,                                                             OPINION
         Defendants and Appellants.



         APPEAL from a judgment of the Superior Court of Fresno County. Don D.
Penner, Judge.
         Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and
Appellant Richard Vasquez, Jr.
         Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and
Appellant Sheila Marie Escobar.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-
                                    INTRODUCTION
       On July 19, 2012, appellants Richard Vasquez, Jr. (Vasquez) and Sheila Marie
Escobar were charged in the stabbing death of Brandon Cruz.1 Vasquez was charged
with one count of murder (count 3; Pen. Code,2 § 187, subd. (a)), while Escobar was
charged with one count of assault with a deadly weapon (count 4; § 245, subd. (a)).
       Prior to preliminary examinations, the charge against Vasquez was amended to
one count of voluntary manslaughter (§ 192, subd. (a)). Vasquez entered a plea of no
contest, and was sentenced to the upper term of 11 years in prison. In exchange for a
dismissal of the assault charge, Escobar entered a plea of no contest to one count of being
an accessory after the fact to voluntary manslaughter (§ 32), and was sentenced to the
middle term of two years in County Jail.
       On appeal, Vasquez argues that the trial court erred by sentencing him to the upper
term of 11 years rather than the middle term of six years, while Escobar argues that (1)
the trial court erred by denying Escobar’s request for probation, and (2) that the trial court
erred by declining to impose a split sentence on Escobar. None of these arguments are
persuasive, and the judgments will be affirmed.
                                           FACTS
       On July 15, 2012, appellants Vasquez and Escobar were drinking with their
neighbor, Brandon Cruz, in the parking lot of their apartment complex. Eventually,
Vasquez and Cruz got into an argument, and Cruz called Vasquez a “puto.” The two men
then got into a physical altercation, with Vasquez slamming Cruz’s head into the
concrete, and Cruz kicking Vasquez in the face.



1     Charges were also filed against Richard Vasquez III and Gabriel Garcia, Jr. Those
men are not parties to this appeal.
2      Unless otherwise specified, all statutory references are to the Penal Code.



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       After the two men were separated, witnesses observed Escobar chasing after Cruz
with a knife, while Vasquez retrieved a rifle and recruited two other men, Richard
Vasquez III and Gabriel Garcia, to assist him. Shortly thereafter, Vasquez, Escobar,
Vasquez III, and Garcia assaulted Cruz, who suffered a fatal stab wound to the heart.
       Early the next morning, police conducted a search of the home shared by Vasquez
and Escobar, where they found a rifle and a bloody folding knife. Upon being questioned
by the police, both Escobar and Vasquez denied knowing what had happened to Cruz.
Vasquez and Escobar were subsequently arrested and charged with murder and assault
with a deadly weapon, respectively.
       Prior to preliminary examination, Vasquez entered a plea of no contest to one
count of voluntary manslaughter, while Escobar entered a plea of no contest to one count
of being an accessory after the fact to voluntary manslaughter. The remaining charges
were dropped, and Vasquez was sentenced to 11 years in prison, while Escobar was
sentenced to two years in County Jail. This appeal followed.
                                      DISCUSSION
I.     The Trial Court Did Not Abuse Its Discretion By Sentencing Vasquez to The
       Upper Term of 11 Years.
       A.     Standard of Review.
       When reviewing a trial court’s weighing of circumstances in aggravation and
mitigation, “[i]n the absence of a clear showing that its sentence choice was arbitrary or
irrational, we must presume the sentencing court acted properly. [Citation.]” (People v.
Hubbell (1980) 108 Cal.App.3d 253, 260.)
       B.     Analysis.
       Under California Rules of Court, when a prison sentence is imposed, “the
sentencing judge must select the upper, middle, or lower term on each count for which
the defendant has been convicted[.]” (Cal. Rules of Court, rule 4.420(a).) The reasons
for selecting one of those three terms must be stated orally on the record. (Cal. Rules of


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Court, rule 4.420(e).) The trial court has broad discretion when weighing aggravating
and mitigating factors, and only one aggravating factor is needed to justify imposing the
upper term. (People v. Lamb (1988) 206 Cal.App.3d 397, 401; People v. Osband (1996)
13 Cal.4th 622, 728.)
       Here, the trial court imposed the upper term of 11 years rather than the middle
term of six years when sentencing Vasquez for voluntary manslaughter. Prior to
imposing that sentence, the trial court stated several factors in aggravation and mitigation
on the record. In aggravation, the trial court found that Vasquez had two previous violent
felony convictions, had numerous probation violations, had called for assistance from
others in committing the crime in question, and had initially denied culpability to the
police. In mitigation, the trial court found that Vasquez had entered an early plea, had
past military service, had been provoked to “some extent” by the victim, and had one of
his prior felony convictions dismissed pursuant to section 1203.4 after completing
probation. The trial court concluded by stating the following:
       “[THE COURT:] On balance, I do find that the aggravating factors are
       outweighed by the mitigating factors and the court selects and I want the record to
       be clear, I am relying significantly on the defendant’s prior felony that was
       reduced pursuant to 1203.4 so that the record’s clear, even though it was reduced
       I’m relying on that significant factor as a factor in aggravation for this current
       crime. The court makes a finding the aggravating factors outweigh any mitigating
       factors. The defendant is sentenced to the California Department of Corrections
       and Rehabilitation for the aggravated term of 11 years.”
       On appeal, Vasquez raises two objections to the trial court’s determination. First,
Vasquez asserts that the trial court erred by counting his dismissed felony conviction as
both an aggravating factor and a mitigating factor. This argument is without merit. The
mere fact a felony conviction is dismissed does not mean that the felony conviction never
occurred, and Vasquez fails to cite any legal authority in support of the proposition that a
trial court may not consider a dismissed felony conviction as an aggravating factor at
sentencing. Indeed, far from being erroneous, the trial court’s approach of treating the



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felony conviction as an aggravating factor while treating the subsequent dismissal of the
conviction as a mitigating factor is both logical and appropriate. The subsequent
dismissal clearly reduced the negative impact of the prior felony conviction in the eyes of
the trial court, but not to such an extent that the past conviction was not seen as an
aggravating factor. Therefore, given the broad sentencing discretion of the trial court, we
find that the trial court did not abuse its discretion by treating Vasquez’s prior felony
conviction as an aggravating factor.
       Second, Vasquez argues that the trial court failed to clearly state its reasoning on
the record, as it initially stated in the quoted portion above that “the aggravating factors
are outweighed by the mitigating factors,” before eventually concluding that “the
aggravating factors outweigh any mitigating factors[.]” Reading the entire quote,
however, it is clear the trial court found the aggravating factors outweighed the mitigating
factors, and its original statement to the contrary was merely a misstatement. The quoted
portion focuses primarily on aggravation, and then states that the aggravating factors
outweigh the mitigating factors before sentencing Vasquez to the aggravated term.
       In fact, far from being unclear, the trial court’s findings at sentencing clearly
stated numerous factors in aggravation and mitigation on the record before concluding
that the factors in aggravation outweighed the factors in mitigation. While Vasquez
focuses his arguments on his dismissed felony conviction, the trial court also cited an
additional, more recent, violent felony conviction, “many” probation violations, and other
factors in aggravation as well. Therefore, we find that the trial court did not abuse its
discretion by sentencing Vasquez to the upper term of 11 years for voluntary
manslaughter, and Vasquez is not entitled to relief.3

3     On appeal, Vasquez argued in the alternative that, should we find that this
argument waived, his trial counsel was ineffective for failing to object to the trial court’s
imposition of the upper term. As we did not deem Vasquez’s primary argument on appeal
waived, there is no need for us to address Vasquez’s ineffective assistance claim.



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II.    The Trial Court Did Not Abuse Its Discretion by Denying Escobar’s Request
       for Probation.
       A.     Standard of Review.
       We review a trial court’s decision to deny probation for an abuse of discretion.
(People v. Marquez (1983) 143 Cal.App.3d 797, 803.)
       B.     Analysis.
       “All defendants are eligible for probation, in the discretion of the sentencing court
[citation], unless a statute provides otherwise.” (People v. Aubrey (1998) 65 Cal.App.4th
279, 282.) “A sentencing court must state adequate reasons for denying probation and
imposing the middle term. [Citations.]” (People v. Roe (1983) 148 Cal.App.3d 112,
119.) “Unless the record affirmatively shows otherwise, a trial court is deemed to have
considered all relevant criteria in deciding whether to grant or deny probation[.]” (People
v. Weaver (2007) 149 Cal.App.4th 1301, 1313.)
       Here, the trial court denied Escobar’s request for probation despite finding that she
was eligible. In support of its decision, the trial court found that, due to the seriousness
of the crime, Escobar’s lack of remorse, and her initial denial of any knowledge
concerning Cruz’s death to police, Escobar posed a danger to the community. The trial
court subsequently found that the factors in aggravation and mitigation were equal, and
imposed the middle term of two years.
       On appeal, Escobar argues that the factors found in California Rules of Court, rule
4.414 favored probation over imprisonment. This rule reads as follows:

       “Criteria affecting the decision to grant or deny probation include facts relating to
the crime and facts relating to the defendant.
       “(a) Facts relating to the crime
       “Facts relating to the crime include:
       “(1) The nature, seriousness, and circumstances of the crime as compared to other
instances of the same crime;
       “(2) Whether the defendant was armed with or used a weapon;
       “(3) The vulnerability of the victim;


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          “(4) Whether the defendant inflicted physical or emotional injury;
          “(5) The degree of monetary loss to the victim;
          “(6) Whether the defendant was an active or a passive participant;
       “(7) Whether the crime was committed because of an unusual circumstance, such
as great provocation, which is unlikely to recur;
      “(8) Whether the manner in which the crime was carried out demonstrated
criminal sophistication or professionalism on the part of the defendant; and
     “(9) Whether the defendant took advantage of a position of trust or confidence to
commit the crime.
          “(b) Facts relating to the defendant
          “Facts relating to the defendant include:
       “(1) Prior record of criminal conduct, whether as an adult or a juvenile, including
the recency and frequency of prior crimes; and whether the prior record indicates a
pattern of regular or increasingly serious criminal conduct;
          “(2) Prior performance on probation or parole and present probation or parole
status;
          “(3) Willingness to comply with the terms of probation;
       “(4) Ability to comply with reasonable terms of probation as indicated by the
defendant’s age, education, health, mental faculties, history of alcohol or other substance
abuse, family background and ties, employment and military service history, and other
relevant factors;
          “(5) The likely effect of imprisonment on the defendant and his or her dependents;
       “(6) The adverse collateral consequences on the defendant’s life resulting from the
felony conviction;
          “(7) Whether the defendant is remorseful; and
       “(8) The likelihood that if not imprisoned the defendant will be a danger to
others.”
          In this case, the record shows that the trial court considered the seriousness of the
crime, Escobar’s lack of remorse, and the likelihood that Escobar would pose a danger to
others if she was not imprisoned. Escobar, however, contends that those factors are
outweighed by her lack of criminal record, history of poor health, and ties to the
community. Despite these assertions, there is no evidence that the trial court failed to
consider those factors, and indeed the court made specific mention during sentencing of


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Escobar’s “insignificant” criminal record, and also acknowledged that it had read
Escobar’s probation report, which included a section on Escobar’s health and contained
letters in support from friends and family.
       Further, “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.” (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822,
825.) Here, the trial court’s decision was neither arbitrary nor capricious, but rather
based on its discretionary weighing of the relevant factors, including the severity of the
crime and Escobar’s lack of remorse. Accordingly, we find that the trial court did not
abuse its discretion by denying Escobar’s request for probation, and Escobar is not
entitled to relief.

III.   The Trial Court Did Not Abuse Its Discretion by Declining to Impose a Split
       Sentence.
       A.      Standard of Review.
       We review a trial court’s decision not to impose a “‘split’” or “‘blended’” sentence
for an abuse of discretion. (People v. Clytus (2012) 209 Cal.App.4th 1001, 1009.)
       B.      Analysis.
       Under section 1170, subdivision (h)(5), sentencing courts may impose either a
straight jail commitment for the full term of the sentence, or suspend execution of a
“concluding portion of the term[,]” during which time the defendant shall be supervised
by the probation department. (§ 1170, subd. (h)(5)(B)(i).) “The sentencing court has
considerable discretion in imposing such a so-called ‘split’ or ‘blended’ sentence[.]”
(People v. Clytus, supra, 209 Cal.App.4th at p. 1009.) “The trial court’s sentencing
discretion must be exercised in a manner that is not arbitrary and capricious, that is
consistent with the letter and spirit of the law, and that is based upon an ‘individualized




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consideration of the offense, the offender, and the public interest.’ [Citation.]” (People
v. Sandoval (2007) 41 Cal.4th 825, 847.)
        Here, the trial court acknowledged at sentencing that it had the authority to split
Escobar’s prison term, but declined to do so, citing “the nature of the felony that
[Escobar] assit[ed] in trying to prevent apprehension or punishment for[.]” As the trial
court based this decision on an “individualized consideration of the offense,” we find that
the trial court did not abuse its discretion by declining to impose a split sentence in this
case.
                                       DISPOSITION
        The judgments are affirmed.

                                                                  _____________________
                                                                        LEVY, Acting P.J.
WE CONCUR:


 _____________________
GOMES, J.


 _____________________
FRANSON, J.




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