Filed 6/8/15 P. v. May-Santamaria CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A139961
v.
JOSE MARCOS MAY-SANTAMARIA,                                          (Marin County
                                                                     Super. Ct. No. SCR184035)
         Defendant and Appellant.




         Defendant Jose Marcos May-Santamaria pled “open” to a felony charge of assault
with a deadly weapon, knowing that he faced up to seven years in state prison and that
“unusual circumstances” would have to be found before he could be placed on probation.
After a hearing, the trial court sentenced defendant to five years in state prison. The only
issue in this appeal is whether the trial court fully understood its discretionary power to
determine whether this was an “unusual case” for which probation might be granted,
within the meaning of California Rule of Court, rule 4.413. We hold that the court did
not, and remand for resentencing.
                                                 BACKGROUND
         We summarize the facts from the probation report, as did the Attorney General,
without objection, in her brief on appeal:
         “The victim reported that he was at La Selva Restaurant with his friend Jimmy
drinking beer until it closed at 1:30 a.m. The victim was standing near the entrance of the
restaurant when the defendant approached him with a baseball bat and hit him in the left


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side of his body two times. The victim fell to the ground and while on the ground, the
defendant hit him on the right side of his head with the bat. After the victim was hit in
the head, he lost conscious[ness]. The victim woke up when three of his friends walked
him into the emergency room. The victim reported that the defendant was inside the
restaurant with two other males. The victim did not know the defendant or have any
problems with the defendant. The victim believed that the defendant and two males were
gang members as they were all dressed in black. . . .
       “. . . [T]he victim’s friend Jimmy was interviewed by the police. Jimmy reported
that he was with the victim and Israel at the restaurant and they had consumed some
beers. Soon after, three girls approached their table and asked for a beer. Jimmy gave
one of the girls a beer and the girls walked away. At the same time, there was a guy at
another table that began to stare and give them attitude. One of the guys stated, ‘what are
you looking at, you have a problem?’ Jimmy told them no and they were just having fun.
Jimmy did not know why the suspect continued to bother his friend Israel. A security
guard intervened and had Suspect #1 and #2 move to another table. Quickly after, both
suspects got up and walked out of the restaurant.
       “Approximately twenty minutes later, Suspect #1 and #2 came back into the
restaurant, but they were with another male that Jimmy knew as ‘Axel Lechuga.’ The
victim and his friends no longer had problems with the suspects inside the restaurant.
The restaurant closed at around 2:00 a.m., so the victim and his friends exited the
restaurant. Outside the defendant was standing by a black Nissan Altima. When the
defendant saw them, the defendant grabbed a full six [sic] baseball bat from the driver’s
seat and approached the victim and Jimmy. The defendant stated to them, ‘Hey
motherfucker, you trying to give me shit?’ The victim told the defendant that they were
not trying to do anything and that they were not afraid of the defendant. The victim told
the defendant, ‘Do it if you want.’ The defendant came at the victim and hit him in the
right side of his ribs. Jimmy tried to go after the defendant but the security guard grabbed
Jimmy and pepper sprayed him in the forehead. At this time, the victim’s friend Israel
exited the restaurant and the defendant got into his vehicle and drove off.”


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       The victim underwent emergency surgery; his spleen was removed in order to stop
internal bleeding. A piece of the victim’s skull was removed to reduce pressure from the
swelling in his head.
       On July 25, 2013, defendant was charged in a one count information with
committing assault with a deadly weapon (a baseball bat) in violation of Penal Code
section 245, subdivision (a)(1)1, and personally inflicting great bodily injury on the
victim in violation of section 12022.7, subdivision (a). The information also alleged that
“in the commission of the above offense . . . defendant . . . is ineligible for probation
pursuant to Penal Code Section 1203(e)(2), in that . . . defendant used or attempted to use
a deadly weapon upon a human being in connection with the perpetration of the crime.”
       On the same day the information was filed, defendant entered an “open” guilty
plea to the information, understanding that there was no agreement as to his sentence and
that the maximum sentence that could be imposed was seven years in state prison. The
parties stipulated that the preliminary hearing transcript provided a factual basis for the
guilty plea. The written plea form that was signed by defendant and made part of the
record stated that defendant understood that he “may not be granted probation unless the
court finds this to be an unusual case in which the interests of justice would best be
served by a grant of probation.” The trial court confirmed with defendant on the record
at the time he entered his guilty plea that this was “presumptively . . . a state prison case”
and stated that “in order to place you on probation unusual circumstances would have to
be found by the Court.”
       The probation department prepared a written report and recommended that the
imposition of sentence be suspended and defendant placed on five years supervised
probation with conditions that included one year in the county jail. The probation




       1
        All statutory references are to the Penal Code unless otherwise stated. All
references to rules are to the California Rules of Court.


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department concluded that this was an “unusual case” under rule 4.413 because defendant
had no prior record, was so young and was remorseful.2
       The district attorney argued for the aggravated state prison sentence of four years,
plus a three-year enhancement.
       The defendant concurred with the probation department recommendation for
probation on account of his youth, the fact that he had no prior criminal record as an adult
or a juvenile, that he had only a sixth grade education, and that he worked at a restaurant
and had done other work (construction, painting, work in the field in Napa), and sent
money home to his mother in Mexico. Defense counsel also contended that defendant
was filled with “great regret and remorse.”
       At the sentencing hearing, the court rejected probation and sentenced defendant to
five years in state prison, stating:
       “Well, it is unfortunate under the circumstances that Mr. May-Santamaria finds
himself in. I am sorry. However, I do not think that unusual circumstances exist in this
case. In order for me to grant probation in this case, I would have to find unusual
circumstances. The Probation Department suggests that I should consider the fact that
the defendant is young. You said 20, [defense counsel]. I think the [probation] report
says 21. In any event, some could consider that to be young. My concern is maybe
young, but awful strong, and the Probation Department wants me to consider the fact that
the defendant has no prior record. I do think both of those things should be considered.
However, I am going to consider them when determining aggravating versus mitigating
circumstances. I think that when a person takes a baseball bat and swings it at the head
of another person, that person, if ultimately convicted of doing such a thing, should serve
time in state prison. This victim suffered extreme injuries and likely could have died. It
is fortunate that he did not. If I am remembering correctly, the defendant hit this person
to the side of his body first and incapacitated him. The blow to the head was not


       2
       The Probation Report refers to “Rule 413” but obviously meant rule 4.413,
which governs probation eligibility in “unusual cases.”


                                              4
necessary. Even if the defendant thought that he was in danger, that last blow to the head
was—there is just no excuse for that other than—no excuse for it at all. I can only
assume the defendant intended what he did and that was to hit a person in the head with a
baseball bat. So I don’t think unusual circumstances exists. The difficulty becomes what
to do now. The [section] 12022.7 allegation imposes a three-year enhancement on top of
a two, three, four case. In looking at the circumstances in aggravation and mitigation, the
Probation Department points out that the victim suffered life threatening injuries, and that
this case involved great violence. I think I need to consider those things. However, those
are also reasons that I am not finding any unusual circumstances here, and I am not
granting probation as a result. Circumstances in mitigation are that the defendant has no
prior criminal convictions, and he is relatively young. I disagree with the Probation
Department’s analysis that the fact that the defendant is drinking alcohol gives him some
sort of mitigation. The Probation Department believes that when you put the
circumstances in mitigation and aggravation against each other, the middle term is the
correct term. The prosecution thinks the aggravated term is correct. You know, it is
really hard to figure out what exactly is correct, but for someone of this age with no prior
record, I think the mitigated term is the right term. That’s a two-year term, plus a three-
year enhancement for a five-year state prison sentence. I think that’s a fair sentence in
light of the circumstances, and in fact some might consider it to be a light sentence in
light of what the defendant—”
       The court then denied defense counsel’s request to consider striking the
enhancement, stating, “I would not. I think that’s a fair disposition to this defendant.
And so probation is denied. I will find the circumstances in this case to be a mitigated
term. I am sentencing the defendant to state prison for a period of two years, plus the
enhancement pursuant to Penal Code Section 12022.7 subdivision (a) of three years.
That’s a five-year state prison sentence.”
       This appeal followed.




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                                       DISCUSSION
       Defendant asks us to remand this matter for resentencing on the ground that the
trial court’s erroneous understanding of its discretionary power resulted in the trial court
failing to truly exercise its discretion in determining whether this was an “unusual case”
within the meaning of rule 4.413 for which probation might be appropriate.
       It is undisputed that defendant was presumptively ineligible for probation pursuant
to section 1203, subdivision (e)(2), which provides that: “(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.” As noted above,
defendant admitted that he was presumptively ineligible for probation when he pled
guilty to the information.
       We described the well-established statutory scheme for how courts are to consider
whether probation is appropriate in a case such as this one in People v. Stuart (2007) 156
Cal.App.4th 165 (Stuart). Where, as here, a defendant is presumptively ineligible for
probation pursuant to section 1203, “a court determines whether the presumption against
probation has been overcome pursuant to rule 4.413, which lists certain criteria relevant
to this discussion . . . .” (Stuart, supra, 156 Cal.App.4th at p. 177.)
       Rule 4.413(a) requires that the court “must determine whether the defendant is
eligible for probation.” If, as is the case here, the defendant “comes under a statutory
provision prohibiting probation ‘except in unusual cases where the interests of justice
would best be served,’. . . the court should apply the criteria in [rule 4.413](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.” (Rule
4.413(b).)
       Rule 4.413(c) states in pertinent part:
       “(c) Facts showing unusual case



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       “The following facts may indicate the existence of an unusual case in which
probation may be granted if otherwise appropriate: [¶] . . .
       “(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: [¶] . . .
       “(C) The defendant is youthful or aged, and has no significant record of prior
criminal offenses.”
       As we wrote in Stuart, “If a court determines the presumption against probation is
overcome, it evaluates whether or not to grant probation pursuant to California Rules of
Court, rule 4.414. . . . [¶] Under rule 4.413, the existence of any of the listed facts does
not necessarily establish an unusual case; rather, those facts merely ‘may indicate the
existence of an unusual case.’ (Rule 4.413(c), italics added.) This language indicates the
provision ‘is permissive, not mandatory.’ ” (Stuart, supra, 156 Cal.App.4th at p. 178.)
       “ ‘The standard for reviewing a trial court’s finding that a case may or may not be
unusual is abuse of discretion.’ ” (Stuart, supra, 156 Cal.App.4th at p. 178.) However,
“an erroneous understanding by the trial court of its discretionary power does not result in
a true exercise of discretion.” (People v. McNiece (1986) 181 Cal.App.3d 1048, 1058,
overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470; see also People v.
Bruce G. (2002) 97 Cal.App.4th 1233, 1247 [“erroneous understanding by the trial court
of its discretionary power is not a true exercise of discretion”].)
       Defendant is not arguing in this appeal that his “unusual circumstances virtually
required probation.” He is arguing that the trial court did not understand its discretionary
powers in making this decision. We agree.
       First, the trial court appeared not to exercise its discretion at all by pronouncing, “I
think that when a person takes a baseball bat and swings it at the head of another person,
that person, if ultimately convicted of doing such a thing, should serve time in state
prison.” That is not the law. Defendant pled guilty to assault with a deadly weapon, and
was not automatically probation ineligible simply for having committed the crime. (Cf.
§ 1203.075 [enumerating certain crimes for which “[n]otwithstanding any other provision


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of law, probation shall not be granted”].) In this case, the court was required to take into
account whether defendant was eligible for probation, even where probation was
prohibited except for an “unusual case.” (See rule 4.413(a) [“The court must determine
whether the defendant is eligible for probation.”].)
       Second, the trial court appeared not to consider for these purposes the facts that
“may indicate the existence of an unusual case in which probation may be granted if
otherwise appropriate,” as required by rule 4.413(c). The probation department (and
defendant) relied on the undisputed facts that defendant was youthful and had no prior
criminal record.3 These are among the types of facts specifically listed in rule
4.413(c)(2)(B) as “a fact or circumstance not amounting to a defense, but reducing the
defendant’s culpability for the offense,” to be considered by the court in determining
probation eligibility. Yet the trial court determined not to consider these two undisputed
facts in determining whether defendant was eligible for probation. The court conceded
that “some could consider [defendant] to be young.” Acknowledging that the probation
department “want[ed] me to consider” that defendant was young and had no prior record,
the court stated: “I do think both of those things should be considered. However, I am
going to consider them when determining aggravating versus mitigating circumstances.”
(Emphasis added.) In other words, the court bypassed entirely its responsibility to
consider these factors in determining whether defendant was eligible for probation under
rule 4.413(c), and jumped ahead to the aggravating and mitigating factors to be
considered in sentencing defendant to state prison. (See rule 4.420 [“Selection of base
term of imprisonment”]; rule 4.421 [“Circumstances in aggravation”]; rule 4.423
[“Circumstances in mitigation”].)4 This was error.
       “The trial judge’s discretion in determining whether to grant probation is broad.”
(Stuart, supra, 156 Cal.App.4th at pp. 178-179.) However, in this case the trial judge did

       3
        The Attorney General notes that if the defendant’s birth date is correctly stated in
the probation report, he was 20 at the time of the crime and the sentencing.
       4
         Lack of prior criminal record or an insignificant record of criminal conduct are
factors that may be considered as circumstances in mitigation. (Rule 4.423(b).)


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not exercise its discretion as required by the statute and the rules of court. We remand
this matter for resentencing.
                                     DISPOSITION
       The sentence is vacated, and the cause is remanded for resentencing consistent
with this opinion.




                                                 _________________________
                                                 Miller, J.


We concur:


_________________________
Richman, Acting P.J.


_________________________
Stewart, J.




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