Filed 4/30/14 P. v. Hegazy CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H039284
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS120359)

         v.

ADEL KAMAL HEGAZY,

         Defendant and Appellant.


         An ambulance and several volunteer firefighters responded to a report of a vehicle
accident on a remote stretch of Highway 1 in Monterey County, where they encountered
defendant Adel Kamal Hegazy standing on a dirt turnout near his damaged vehicle.
Hegazy, who was not obviously injured, initially ignored the responding firefighters and
refused their attempts to examine him. When two firefighters went to check his vehicle,
Hegazy became enraged and grabbed a metal wheel chock that firefighters had placed
behind the tire of his car to prevent it from rolling or being moved. Hegazy began
swinging the metal chock around, screaming that he wanted the police. He hit one
firefighter in the arm and another on the helmet with the chock before a California
Highway Patrol (CHP) officer arrived. Hegazy had to be tased three times before he
could be taken into custody and transported to the hospital.
         A jury convicted Hegazy of three counts of assault with a deadly weapon (Pen.
Code, § 245, subd. (a)(1))1 and one count of resisting a peace officer (§ 148, subd. (a)(1)).
         1
             Further unspecified statutory references are to the Penal Code.
The jury found him not guilty of several other charges and could not reach a verdict on
two other counts. The court declared a mistrial on the latter two charges.
       The trial court denied probation and sentenced Hegazy to a total term of two years
in prison, consisting of the lower term of two years on the first count of assault with a
deadly weapon, and concurrent two year terms on the other two counts of assault with a
deadly weapon. He was sentenced to 365 days in county jail on the charge of resisting a
peace officer, with 365 days credit.
       On appeal, Hegazy argues the trial court abused its discretion in denying
probation. According to Hegazy, the trial court erroneously stated he had an
“insignificant” criminal history, when he actually had no criminal record. There was also
no support for the trial court’s findings that he lacked remorse or that the version of
events he gave to the probation department was different than the version he presented at
trial. The trial court also disregarded a pretrial psychiatric evaluation, conducted
pursuant to section 1368, which indicated Hegazy had suffered a psychotic episode
during the incident.
       We reject Hegazy’s arguments and will affirm.
I.     FACTUAL AND PROCEDURAL BACKGROUND
       A.     The charges
       Hegazy was charged by information with four counts of assault with a deadly
weapon (§ 245, subd. (a)(1), counts 1, 2, 9, 10), two counts of vandalism causing more
than $400 in damage (§ 594, subd. (b)(1), counts 7, 11), driving under the influence (Veh.
Code, § 23152, subd. (a), count 4), being under the influence of a controlled substance
(Health & Saf. Code, § 11550, subd. (a), count 5), resisting a peace officer (§ 148, subd.
(a)(1), count 6), and two counts of battery causing injury to emergency personnel (§ 243,
subd. (c)(1), counts 3, 8). In connection with the assault with a deadly weapon and
battery causing injury to emergency personnel counts, the information further alleged that



                                              2
Hegazy personally used a deadly weapon, specifically a wheel chock. (§§ 667, 1192.7,
12022, subd. (b)(1).)
       B.     The prosecution’s case
              1.        The vehicle accident and emergency response
       On the evening of February 24, 2012, Big Sur volunteer firefighters and an
ambulance responded to a report of a vehicle accident on Highway 1. When they arrived
on the scene, they found a vehicle parked on a dirt turnout on the west side of the
highway. The vehicle’s front and rear bumpers were damaged, and one of the headlights
was broken. The vehicle’s engine was off, but the keys were in the ignition and “Middle
Eastern chanting-type music”2 was playing loudly on the car speakers.
       Hegazy and two other people, one male, the other female,3 were standing on the
turnout. Hegazy and the other man were standing “nose to nose, probably one foot
apart,” engaged in a “stare-off,” which lasted for 15 to 20 minutes.
       Emergency medical technicians (EMT) and firefighters tried to talk to Hegazy and
see if he was injured or needed assistance in any way. Hegazy would not break off eye
contact with the other man, instead holding out his hand and saying, “No.” He said he
“wanted 9-1-1,” but when a firefighter responded, “We are 9-1-1,” Hegazy said he
wanted “police, not fire.”
       Nimmo and another firefighter examined Hegazy’s car to look for signs he had
been injured in the accident, such as a broken windshield. The windshield was intact, and
the airbags had not deployed. When one of the firefighters reached to remove the key
from the ignition, Hegazy became “very angry,” broke off the stare down, and
approached them. Hegazy yelled at the firefighters, violently pushed them away from his

       2
        One of the firefighters, Christian Nimmo, later asked Hegazy to turn off the
music. Hegazy became upset and said it was prayers, not music.
      3
        According to one of the responding firefighters, the woman worked at the nearby
Esalen Institute. The man engaged apparently left the scene without being identified.


                                              3
car and told them they should not be near his vehicle. He got into the car and tried
unsuccessfully to start it. At some point, however, a firefighter had placed a metal wheel
chock behind one of the rear wheels to prevent the car from rolling, and to stop Hegazy
from driving a potentially damaged vehicle.
       Hegazy became angry, got out of his car and pulled the chock out from behind his
wheel. Holding it in both hands, he swung it at Nimmo, hitting him in the arm.4 He
continued swinging the chock, shouting “get back,” and “I want 9-1-1. I want the
police.” The firefighters moved away from Hegazy, and as they retreated, Hegazy
occasionally paused to squat and yell while slamming the chock in the dirt. He would
then rise and come towards the firefighters again, some of whom were radioing for police
assistance. One firefighter testified Hegazy smiled as he came towards them swinging
the chock, and appeared to be “getting pleasure out of what he was doing, taunting us.”
       Some of the emergency personnel moved behind the fire engine and ambulance.
Hegazy followed them, still yelling and swinging the chock, which struck the fire engine,
breaking some of its lights. Hegazy, with a smile on his face, came at Firefighter James
Betts, M.D. Hegazy swung the chock at his head, but Betts was able to deflect Hegazy’s
arm so the chock hit the side of his helmet, gouging it and dazing him. The chock
ricocheted up and over Hegazy’s head, striking him in the back of the head.
Still holding the chock, Hegazy withdrew a little and began pacing along the shoulder of
the highway.
       CHP Officer Eric Dutra arrived at the scene a short time later and was advised by
a firefighter that Hegazy had attacked them. Drawing his taser, Dutra ordered Hegazy to
drop the chock. Hegazy ignored the command, continuing to pace while staring at Dutra.
Dutra repeated the command several times until Hegazy, still staring at Dutra and
mumbling unintelligibly eventually complied. Dutra then ordered Hegazy to sit on the

       4
           Nimmo’s arm was bruised, but no bones were broken.


                                              4
ground. Hegazy instead dropped to his knees and started to gather small rocks in his
hands. Dutra ordered him to drop the rocks. Hegazy screamed “Ala [sic],” and began to
get up. Dutra believed Hegazy was preparing to attack him, so Dutra tased him. After
the five-second taser cycle ended, Hegazy again screamed “Ala [sic]” and tried to get up,
so Dutra tasered him again. Dutra tasered Hegazy a total of three times before Hegazy
finally complied and rolled over onto his stomach. Hegazy was handcuffed and placed in
the ambulance, where EMTs treated a gash on the back of his head. Before the
ambulance left for a nearby hospital, Dutra overheard Hegazy stating several times he
was confused and was sorry.
                2.    Hegazy’s treatment and evaluation at the hospital
       Dutra followed the ambulance to the hospital and, after advising Hegazy of his
Miranda5 rights, interviewed him in the emergency room. Hegazy told Dutra he had
borrowed the car earlier that day, and had also smoked “ice,” which Dutra recognized as
a street term for crystalline methamphetamine.
       Hegazy told Dutra when he left San Jose he “didn’t know where he had been
going,” and when he got to Big Sur he “didn’t even [k]now how he had gotten there.”
Both at the scene of his initial contact with Hegazy and at the hospital, Dutra observed
that Hegazy “exhibited [an] inability to stay focused, rapid speech on scene, foaming at
the mouth in the corners, [and] rapid eye movement.” Dutra called for another officer to
evaluate Hegazy for being under the influence.
       CHP Officer Matthew Babcock, a trained “Drug Recognition Evaluator,” testified
he was called to the hospital to determine if Hegazy was under the influence of one or
more controlled substances. Babcock observed Hegazy’s hands and feet twitching
involuntarily and he was grinding his teeth. Hegazy’s pupils were dilated and did not
respond normally to light. Using a light to examine inside Hegazy’s nose, Babcock

       5
           Miranda v. Arizona (1966) 384 U.S. 436.


                                             5
noticed Hegazy’s septum was worn on one side, which is a sign of prolonged drug use.
Furthermore, Hegazy’s mouth was extremely dry and his tongue appeared cracked. He
had a white substance on his lips.
       Babcock asked Hegazy a standard series of questions, e.g., what he had eaten and
drunk during the day, whether he was diabetic or had high blood pressure, etc. Hegazy
would often not answer or “would go from looking at me, appearing to be following what
I was saying, to looking off in the distance and mumbling, or just stating incoherent
statements.” When asked if he was taking medications or drugs, Hegazy said he was
taking “Ice.” Babcock clarified that Hegazy was referring to methamphetamine. Based
on his evaluation, Babcock formed the opinion Hegazy was impaired by a central nervous
system stimulant, a category of drugs which include methamphetamines.
       Hegazy initially refused to have his blood drawn by a female phlebotomist, saying
it was “against his religion,” so a male phlebotomist was called in to take a blood sample.
The phlebotomist had difficulty obtaining the sample because Hegazy would not
cooperate, pulling his arm away and laughing every time the needle approached. The
officer told Hegazy that it would be automatically considered a positive result if they
could not obtain a blood sample and Hegazy finally cooperated. Hegazy’s blood tested
positive for amphetamines, the pharmaceutical family containing methamphetamine. 6
              3.     Hegazy’s transportation to jail
       Once Hegazy was cleared to leave the hospital, Dutra and another officer began to
escort Hegazy to Dutra’s patrol vehicle. Hegazy asked where they were going and Dutra
explained they were taking him to jail. Hegazy immediately went limp, forcing the

       6
         CHP Officer David Veliz conducted an inventory search of the vehicle before it
was towed, but found no weapons, drugs or drug paraphernalia inside the car. Veliz also
testified, based on his reconstruction of the accident, Hegazy was driving southbound on
Highway 1 when he lost control of the car approaching a curve and collided with the
guardrail.



                                             6
officers to carry him to the car. Dutra’s car did not have a partition between the front and
back seats, so he placed Hegazy, still handcuffed, in the front seat and used a nylon strap
to secure the handcuffs to the floorboard. Dutra drove the vehicle and the other officer
sat in the back seat. As they were driving, Hegazy began hitting the passenger door with
his right leg. Dutra told him to stop, but Hegazy lifted his legs and kicked the
windshield, shattering it. Dutra pulled the car over and the two officers restrained
Hegazy’s legs and secured his legs to the handcuffs. They placed him in the back seat,
and drove him to jail without further incident.
       Throughout his encounters with firefighters, highway patrol officers and medical
personnel that evening, Hegazy appeared to have no problems speaking or understanding
English.
       C.       The defense case
       Hegazy testified on his own behalf, through an interpreter. At the time of trial,
Hegazy was 28 years old, married, and had lived in the United States for over two years.7
His first language was Arabic, though he claimed he understood “some” English, and he
has a bachelor’s degree in social science.
       Hegazy, who lived in San Jose, said he was driving his wife’s car around San Jose
on the evening of February 24, 2012, to familiarize himself with the area. He started
driving about 5:00 p.m. and after driving for about three hours, he realized he was lost.
His phone had died, and he was trying to find the nearest town to ask how to get back to
San Jose.
       As he was driving, some people in another car behind him were driving extremely
close to him. The car had tinted windows, so he could not see who was inside. Since
July of 2011, Hegazy believed agents of the Israeli government were harassing him, and
he was afraid the people in this car were involved in that harassment. With the car

       7
           The probation report indicates Hegazy was born in Egypt.


                                             7
behind him coming dangerously close, Hegazy lost control of his car as he tried to
negotiate a curve, hit the guardrail and hit his head against the car door. Feeling dazed,
he pulled over on the side of the road to check the condition of his car.
       Other people stopped and offered assistance, but then Hegazy saw a man get out
of the car that had been driving behind him. The man came up to Hegazy and stood
about six to seven inches away to intimidate him. When Hegazy would move away, the
man would advance and “invade” Hegazy’s space. Hegazy asked the other people to call
the police immediately, and someone said the police were on their way.
       Hegazy was surprised when a fire engine arrived on the scene rather than police
officers, so he told them that he needed the police. He asked the firefighter to tell
everyone to stay away from him and his car. Because of all the people and cars that had
arrived, Hegazy began to get suspicious that the firefighters were conspiring with the man
who was trying to intimidate him and would steal his car.
       One of the firefighters said “We are here to help you,” and at that same moment,
the other man moved closer to Hegazy, still staring at him. One of the firefighters pushed
him on the shoulder, and Hegazy pushed his arm away.
       Hegazy then discovered the metal chock behind his wheel, though he had not seen
anyone put it there. He did not know why it was there, so he grabbed it in order to throw
it away from his car. The staring man kept getting closer, so Hegazy used the chock to
keep him, as well as the firefighters he thought were conspiring with the staring man,
away. He swung the chock only to get everyone to move away, not because he intended
to hit anyone. Hegazy denied chasing anyone, swinging the chock at or hitting anyone
with it, though he admitted he accidentally hit the fire engine once as he was swinging it.
       When the officer arrived, Hegazy could not understand him at first because he was
far away. When he heard the officer tell him to drop the chock, he did so. When the
officer asked him to sit on the ground, he did so. The officer again said something
Hegazy did not understand, immediately tased him and then tased him again. Hegazy fell

                                              8
backwards hitting his head on the ground each time he was tased. The officer put him in
handcuffs and placed him in the ambulance, which transported him to the hospital.
       At the hospital, Hegazy allowed them to take a blood sample. He could not really
understand what people were saying, so he told the officer that he needed an Arabic
interpreter. When Babcock was asking him questions, Hegazy said he could not
understand some of the things he said and he did not respond. Hegazy admitted he had
previously smoked methamphetamine once or twice, but he had not taken any drugs the
day of the accident. However, he denied telling any of the officers he had smoked
methamphetamine that day.
       When the officers took him to the patrol car, Hegazy was in a lot of pain and he
had no strength in his leg from the tasings, so he could not walk. When they told him he
was being taken to jail, he was too afraid to object and he did not resist being taken to the
car. He denied kicking the windshield of the patrol car.
       D.     The verdict and sentencing
       The jury convicted Hegazy of resisting a peace officer (count 6), and three counts
of assault with a deadly weapon (counts 1, 2, 10). The jury found him not guilty on the
vandalism charges (counts 7, 11), battery on emergency personnel (counts 3, 8) and one
charge of assault with a deadly weapon (count 9). The jury said it could not agree on a
verdict on the driving under the influence and being under the influence charges (counts
4, 5), and the court declared a mistrial on those counts.
       At sentencing, after reviewing the probation report, hearing a statement from
Hegazy as well as arguments from counsel, the trial court denied probation and sentenced
Hegazy to the lower term of two years on count 1, with concurrent two year terms on
counts 2 and 10, as well as 365 days in county jail on count 6 with credit for 365 days.
With respect to his prison term, he was awarded a total of 409 days of credits, consisting
of 205 days of custody credits plus 204 days of conduct credits.



                                              9
II.    DISCUSSION
       Hegazy argues that the trial court’s denial of probation constituted an abuse of
discretion. He contends the decision was based on erroneous factual assumptions, as well
as a failure to recognize Hegazy’s amenability to mental health treatment. We disagree,
and find the trial court’s decision was not arbitrary, capricious or beyond the bounds of
reason.
       A.      Background
       Following Hegazy’s conviction, the trial court referred the matter to probation for
a presentence report. The probation officer interviewed Hegazy with the aid of an
interpreter.
       In the interview with the probation officer, Hegazy said he was 28 years old, was
born in Egypt and moved to the United States three years prior to the incident. Hegazy
said he was going sightseeing on February 24, 2012, but the battery on his global
positioning device died and he became lost. While driving through Big Sur, he hit a
curb, and pulled over about a mile later. Another vehicle stopped, but instead of helping,
the person “stared him down.” Hegazy was confused when firefighters arrived instead of
the police, and he could not understand why they tried to get in his car. Hegazy said, in
Egypt, “emergency personnel are never helpful, as they are corrupt and not to be trusted.”
He picked up the wheel chock to protect himself, but denied he hit anyone with it.
       When the CHP officer arrived, he dropped the chock as instructed but could not
understand why the officer wanted him to sit down. He was tased and tased again only a
few seconds later, and when he fell to the ground, he cut his head. He denied picking up
any rocks or using drugs that night. Since he had experimented with methamphetamines
previously, he told the officer he had used “ice” when asked about drugs, but he did not
mean he had used it that day. Hegazy also denied kicking out the windshield of the patrol
car. In his opinion, the case was a “conspiracy between fire personnel and the police.”



                                            10
       In the report, the probation officer noted that Hegazy was cooperative and
“appeared to understand the questions asked of him and frequently responded, in English,
ahead of the interpreter, leaving the undersigned to ponder why he would not cooperate
with emergency personnel who had attempted to assist him.” Because Hegazy “was not
found guilty[8] of driving under the influence of a controlled substance, his erratic and
extremely assaultive behavior can only be attributed to [his] self-admitted distrust of
public authorities.”
       The probation officer listed the following factors in aggravation: (1) the crime
involved the threat of great bodily harm (Cal. Rules of Court, rule 4.421(a)(1)); (2)
Hegazy was armed with a metal wheel chock (id., (a)(2)); and (3) Hegazy “engaged in
violent conduct that indicates a serious danger to society.” (Id., (b)(1).) The only
mitigating factor noted was that Hegazy “has no prior record, or has an insignificant
record of criminal conduct.” In conclusion, the probation officer recommended the trial
court impose a three-year suspended sentence and place Hegazy on formal probation.
       At the sentencing hearing, the trial court announced it was tentatively inclined to
deny probation, stating: “The defendant was convicted by jury of three strike offenses,
felonies, and probation doesn’t seem to address the--well, I guess what I’m questioning . .
. is the defendant amenable to a grant of probation? [¶] Quite frankly, I see no acceptance
of responsibility, no comment that he understands that he did wrong, that he violated the
law. [¶] And it seems to me that [this] is not the proper mind set for someone who is
going to be successful on probation. We may be thinking about a prison term which
would be more amenable to his particular mind set.”




       8
         Actually, the jury was unable to reach a verdict on the charges of driving under
the influence and being under the influence of a controlled substance. After the court
declared a mistrial on those counts, the People elected not to retry Hegazy.


                                             11
         Hegazy asked for an opportunity to address the court, and before he did so, the
court told him: “I know you heard what I said initially. I have yet to get a straight
answer on what happened. You elected to testify. You give a completely different
statement to probation. You testified that you got lost in San Jose, ended up down in Big
Sur. You tell probation you decided to go sightseeing in Monterey. That’s simply not
what you testified to. [¶] You tell probation you hit a curb. You went into lengthy
explanations on how you were being followed for a long period of time by Israelis and
that’s what caused this accident down in Big Sur. [¶] I just can’t understand where you’re
coming from and whether or not you actually believe that you did anything wrong. [¶] So
you can say anything you’d like to say, but you might want to direct your comments to
that.”
         Hegazy, through an interpreter, addressed the court. He denied that the version of
events he gave to the probation officer was different from the version he presented in
court, explaining that it was perhaps a problem with the translation provided at the
probation interview. Hegazy also expressed remorse for the incident, saying “[t]he
reason behind this whole ordeal was my lack of understanding. First of all, my lack of
understanding of the American system. It is very different from the system I am used to
in Egypt. And also my lack of understanding of the English language. There was
definitely a miscommunication in that regard.” He specifically denied having any
animosity towards firefighters or other emergency responders.
         Defense counsel argued in favor of a grant of probation, citing both Hegazy’s
youth and lack of a prior criminal record as mitigating factors. In addition, counsel noted
that, although “it didn’t amount to a defense[,] . . . there may have been other
contributing factors to [Hegazy’s] mental state on the day in question.”
         Proceeding to sentencing, the trial court found there were no factors in
aggravation, but Hegazy’s “insignificant [criminal] record” was a mitigating factor.
Consequently, the court selected the lower term of two years on each of the three counts

                                              12
of assault with a deadly weapon. The trial court denied probation without further
explanation, apparently as its initial concerns about Hegazy’s “mind set” had not been
adequately addressed at the hearing.
       B.     Standard of review
       The grant or denial of probation is within the trial court’s discretion. (People v.
Weaver (2007) 149 Cal.App.4th 1301, 1311.) The reviewing court must determine
whether the trial court’s order “ ‘is arbitrary or capricious or exceeds the bounds of
reason considering all the facts and circumstances.’ ” (Ibid.) Accordingly, “ ‘a denial of
probation after consideration of the application of its merits is almost invariably upheld.’
” (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1157.)
       C.     The trial court did not abuse its discretion in denying probation
       Hegazy claims the trial court’s reasons for denying probation were erroneous or
not supported by the record. We examine each of these purported inaccuracies in turn.
       First, Hegazy asserts the trial court incorrectly said he had an insignificant
criminal record, rather than no criminal record. While this is true, the trial court’s
mistake is both minor and irrelevant. There is nothing in the record to suggest that the
trial court considered Hegazy’s criminal record (or lack thereof) as a factor in deciding
whether to grant probation. Instead, the trial court appears to have been using this factor
solely in deciding whether to impose the lower, middle or upper term sentence. When
the trial court announced its intention to deny probation, the only concerns it mentioned
were that Hegazy was not accepting responsibility or acknowledging culpability for the
offenses. Accordingly, even if the trial court’s statement was factually incorrect, it was
not part of the analysis it employed in reaching its decision.
       Second, Hegazy asserts the record does not support the trial court’s conclusion
that he lacked remorse for the offenses. More than one witness testified at trial that
Hegazy apologized at the scene and said he was confused. Hegazy also apologized at the



                                             13
sentencing hearing and expressed regret for what occurred due to his lack of
understanding of what was going on at the incident.
       These apologies, however, must be contrasted with Hegazy’s previous repeated
denials of wrongdoing. At trial, Hegazy denied hitting anyone with the wheel chock. In
his interview with the probation officer, Hegazy again denied hitting anyone with the
wheel chock, claiming that the whole case was a “conspiracy between fire personnel and
the police.” His apology at the sentencing hearing also was conditional in the sense that
it was not so much an acknowledgement that he had done anything wrong, but rather an
explanation that his conduct was the result of him “not understand[ing] what was going
on that day.” Based on this record, the trial court’s doubts regarding the sincerity of
Hegazy’s remorse was justified.
       Third, Hegazy takes issue with the trial court’s comments that he told the
probation officer a story that was different to what he testified to at trial. As he explained
at the sentencing hearing, Hegazy believes the translator “didn’t translate properly to the
probation people.”
       Whether or not there was a problem with the translation provided during his
probation interview (and there is nothing in the record which would support this claim),
the trial court obviously was not convinced by Hegazy’s explanations. This does not
mean the trial court acted in an arbitrary or capricious manner. The trial court had the
benefit of hearing all the testimony presented at trial, including Hegazy’s testimony. It
reviewed the probation officer’s report. At the sentencing hearing, after expressing its
doubts that Hegazy had the proper “mind set” to succeed on probation, Hegazy had an
opportunity to persuade the trial court that he would in fact do well on probation. The
trial court was not convinced. Furthermore, both at trial and in his probation interview,
Hegazy denied committing the crimes of which he was convicted, which included three
violent felonies, and claimed the incident arose out of some conspiracy between
firefighters and police.

                                             14
       Finally, Hegazy contends the trial court failed to take into account his psychotic
illness. Prior to trial, Hegazy was evaluated by a psychiatrist because there was a doubt
about his competency pursuant to section 1368. Though found competent to stand trial,
the psychiatrist opined that Hegazy had “an acute psychotic episode” on February 24,
2012, and “misinterpreted what was transpiring at that time.”
       California Rules of Court, rules 4.413(c)(2)(A) permits a court to consider in
mitigation the fact that a defendant “participated in the crime under circumstances of
great provocation, coercion, or duress not amounting to a defense.” Rule 4.413(c)(2)(B)
provides when the “crime was committed because of a mental condition . . . and there is a
high likelihood that the defendant would respond favorably to mental health care,” a
sentencing court can consider this as a mitigating factor. However, the sentencing factors
described in rule 4.413 are “not to be read expansively.” (People v. Superior Court
(Dorsey) (1996) 50 Cal.App.4th 1216, 1227.)
       While there is some evidence in the record to show Hegazy may have some degree
of mental illness, Hegazy does not show his crimes were committed as a consequence of
this mental illness. In fact, Hegazy persisted in denying that he committed any crimes
that night. The trial court did not abuse its discretion in denying probation.




                                             15
III.   DISPOSITION
       The judgment is affirmed.




                                        Premo, J.




       WE CONCUR:




             Rushing, P.J.




             Márquez, J.




                                   16
