Filed 3/11/14 P. v. Young CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058434

v.                                                                       (Super.Ct.No. SWF020924)

DAVI LECHAZ YOUNG,                                                       OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Mark Mandio, Judge.

Affirmed.

         Siri Shetty, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G.

McGinnis and Elizabeth M. Carino, Deputy Attorneys General, for Plaintiff and

Respondent.



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         Defendant and appellant Davi Lechaz Young was by charged by amended

information with unlawfully discharging a firearm at an inhabited dwelling. (Pen. Code,

§ 246, count 1.)1 The amended information also alleged that in the commission of the

offense in count 1, a principal was armed with a firearm (§ 12022, subd. (a)(1)), and that

defendant committed the offense for the benefit of, at the direction of, and in association

with a criminal street gang (§ 186.22, subd. (b)). Defendant pled guilty and admitted the

truth of the allegations, with the understanding that the maximum possible custody

commitment was 23 years to life. The court suspended the proceedings and placed

defendant on probation for five years. Three months later, defendant admitted that he

violated his probation. The court reinstated him on probation. Approximately three

years after that, the court found that defendant violated his probation again. At

sentencing, the court struck the firearm enhancement (§ 12022, subd. (a)(1)) and

sentenced defendant to 15 years to life, pursuant to section 186.22, subdivision (b)(4)(B).

         On appeal, defendant contends the court abused its discretion in declining to

reinstate his probation again. We affirm the judgment.2




         1   All further statutory references will be to the Penal Code, unless otherwise
noted.

         2
        Defendant has filed a petition for writ of habeas corpus (case No. E059287),
which we ordered considered with this appeal. We will resolve that petition by separate
order.


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                       FACTUAL AND PROCEDURAL BACKGROUND

       Underlying Offense

       On April 11, 2007, defendant and his friends committed a drive-by shooting.

Defendant admitted to the police that he was a gang member. He was charged with

discharging a firearm at an inhabited dwelling (§ 246, count 1). It was also alleged that

in the commission of the offense, a principal was armed with a firearm (§ 12022,

subd. (a)(1)), and that defendant committed the offense for the benefit of, at the direction

of, and in association with a criminal street gang (§186.22, subd. (b)). On January 5,

2009, defendant pled guilty to count 1 and admitted the truth of the allegations.

       At the sentencing hearing on February 20, 2009, defense counsel argued for the

court to show leniency and place defendant on probation, since he had no criminal

history, he was 16 years old at the time of the incident, and he had strong family support.

The court noted, and defense counsel conceded, that defendant knew when he pled guilty

that he could spend most of his life in prison. Defense counsel continued to argue that

this was “not an appropriate life case.” After much discussion, the court stated that

defendant deserved an opportunity to “succeed on probation and turn his life around.”

However, it noted that, given defendant’s admissions to the underlying charge and

allegation, he could be sentenced to a life term in state prison if he violated his probation.

The court addressed defendant directly, stating, “I cannot emphasize this strongly

enough: If you violate the probation, you could and probably will be sentenced to spend

the rest of your life in prison.” Defendant acknowledged that he understood. The court



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proceeded to suspend the proceedings for the purpose of placing defendant on probation

for five years, on specified terms and conditions. Defendant agreed to abide by the terms

of his probation.

       Probation Violations

       Approximately three months later, defendant admitted that he violated four terms

of his probation. The court found him in violation of his probation and referred the

matter out for a sentencing report. The court addressed defendant directly and warned

him that he “need[ed] to change how [he acts]” and follow directions. The court stated

that he needed to understand that he was on probation and that he pled guilty to serious

charges. At the next hearing, defendant stated that he wanted to help and support his

family, and that he took full responsibility for his actions. He asked the court to forgive

him and give him another chance. The court reinstated him on probation. The court then

set the matter for a progress review on July 24, 2009, and warned defendant that if he was

not in compliance with his probation then, it would not put him back on probation.

Defendant had a positive progress report on July 24, 2009.

       On August 22, 2012, a petition to violate probation was filed alleging that

defendant committed felony vandalism (§ 594, subd. (b)(1), count 1) and that he

discharged a BB gun in a grossly negligent manner, which could result in death or injury

(§ 246.3, subd. (b)). A hearing on the petition was held on January 29, 2013. Destiny

Burks testified that she knew defendant, since she used to be best friends with his sister.

On August 19, 2012, Burks was at home, and her brother’s girlfriend saw some “guys . . .



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in front of the house [who] said, ‘Come outside and catch this fade.’” Burks and her

family went outside and saw defendant driving a PT Cruiser with one or two passengers

in the car. Defendant stuck his head out the window, and challenged Burks’ brother to a

fight at the park. Burks’ brother yelled back in response until Burks pulled him back

inside the house and said, “That’s [defendant].” “Come in the house because he likes to

shoot.” They all went back in the house. The family then heard gunshots being fired at

the house. Burks’ mother called the police. They all ran upstairs to avoid getting hit.

       Police officers conducted a high-risk traffic stop on a car that matched the

description Burks’ mother gave to the police. Defendant was taken out of the car. The

officers searched the car and found a pellet gun and CO2 cartridges for the gun. Officers

later observed damage to the window of Burks’ home. The damage was consistent with

the pellet gun found inside defendant’s car. After reading the incident report and

reviewing the evidence, the court found that defendant was in violation of his probation.

       At the sentencing hearing on March 8, 2013, defendant’s girlfriend, who was the

mother of his child, and his mother, spoke on defendant’s behalf. Defendant also

addressed the court, stating that he did well on probation for three years, but then he

made a “dumb choice.” He described himself as a “good guy in a bad situation.”

Defense counsel argued that defendant’s problems were the people he chose to associate

with and how he got caught up with impressing his friends. Defense counsel asked the

court to reinstate defendant on probation and give him the opportunity to “disassociate”

from the friends who “basically get him in trouble when he hangs out with them.”



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       The prosecutor reviewed how many warnings the previous courts had given

defendant about not violating his probation and his potential to go to prison for the rest of

his life. The prosecutor also asserted that defendant was not a youth anymore and that he

was the oldest one in the group who participated in the latest incident. Finally, the

prosecutor noted that the court could not strike the alternate sentencing provision of

section 186.22, subdivision (b)(4)(B), which made defendant’s sentence 15 years to life.

Defense counsel then argued that section 186.22, subdivision (b)(4), was a sentence

enhancement that the court could strike. There was some discussion about section

186.22, subdivision (b)(4), being an alternate sentencing provision. The court noted that

this issue “sprung on [defense counsel] without an opportunity to do any research.”

       The court then stated that, after hearing all the arguments, it appeared that this case

was not appropriate for continuing probation. It asserted that the “bottom line” was that

defendant had been given “plenty of chances.” The court then said that, “on the other

hand,” there were many reasons, in its opinion, not to impose a life sentence. However,

pursuant to its reading of section 186.22, subdivision (b), the sentence for a conviction of

section 246, with the admission of committing that offense for the benefit of a gang, was

15 years to life. The court emphasized that it was not going to place defendant back on

probation since that was not appropriate in this case. The court noted that, “if it was

legal,” it was leaning toward striking the section 186.22 punishment; however, the

prosecution appeared to be correct on the law. Nonetheless, the court wanted to give




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defense counsel time to research the issue of whether the court could strike the section

186.22 allegation, so it scheduled another sentencing hearing for March 29, 2013.

       At the hearing on March 29, 2013, defense counsel asserted that at the time

defendant pled guilty, he understood that the section 186.22, subdivision (b)(4)(B) gang

allegation could be stricken, and that the case could be made a determinate sentencing

case. Defense counsel then requested that probation be reinstated. The court noted that,

taking into account the positives and negatives in defendant’s life, it had to make a

sentence “that’s both legal and logical in [it’s] own mind.” The court struck the section

12022, subdivision (a)(1) firearm enhancement and sentenced defendant to 15 years to

life for his offense of discharging a firearm at an inhabited dwelling (§ 246), pursuant to

the gang allegation in section 186.22, subdivision (b)(4)(B).

                                           ANALYSIS

           The Trial Court Properly Exercised its Discretion in Declining to Reinstate

                                  Defendant on Probation

       Defendant argues that the sentence must be vacated because the court abused its

discretion in declining to reinstate his probation. He claims that the court did not

evaluate his amenability to rehabilitation, but rather focused on the appropriate length of

punishment for his offense. He asserts that he was amenable to rehabilitation and posed

no danger to the community. We find no abuse of discretion.




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       A. Standard of Review

       A trial court’s decision whether to reinstate probation or sentence a defendant to

prison is reviewed for abuse of discretion. (People v. Downey (2000) 82 Cal.App.4th

899, 909.) “‘A denial or a grant of probation generally rests within the broad discretion

of the trial court and will not be disturbed on appeal except on a showing that the court

exercised its discretion in an arbitrary or capricious manner.’ [Citation.] A court abuses

its discretion ‘whenever the court exceeds the bounds of reason, all of the circumstances

being considered.’ [Citation.]” (Id. at pp. 909-910.)

       B. There Was No Abuse of Discretion

       Here, we cannot find that the trial court abused its discretion in refusing to

reinstate defendant on probation. The court considered defendant’s history, testimonies

by defendant’s girlfriend, mother, and defendant himself, the arguments of counsel, and

the reports submitted at sentencing. The court gave a clear explanation for its sentencing

choice, stating that it would not be appropriate to reinstate probation again since

defendant had already been given many chances to carry out the terms of his probation.

The record shows that the court initially placed defendant on probation and emphasized

to him that if he violated his probation, he would probably be sentenced to spend the rest

of his life in prison. Within approximately three months, defendant admitted that he had

violated four of his probation conditions. Nonetheless, the court gave him a second

chance by reinstating him on probation, explaining that it wanted him to succeed. The

court explicitly warned him that if he violated probation again, it was not going to place



                                              8
him back on probation. Defendant violated his probation again. His previous failure to

comply with the terms of probation amply supported the court’s conclusion that

defendant was no longer a suitable candidate for probation. (People v. Jones (1990) 224

Cal.App.3d 1309, 1316.) Thus, the court had a sufficient reason for refusing to place him

on probation again. (Ibid.)

       Defendant’s argument that the court failed to consider the relevant factors in

deciding whether to reinstate his probation, but rather “emphasiz[ed] the length of

punishment necessitated by [his] criminal conduct,” is meritless. The discussion between

the court and counsel concerning the 15-year-to-life term had no bearing on the court’s

decision to decline the reinstatement of probation. The record clearly demonstrates that

the court determined it was not going to reinstate defendant on probation, and then it

decided to give defense counsel time to research the issue of the appropriate length of

punishment. Three weeks later, the court heard defense counsel’s argument, and then it

sentenced defendant.

       On this record, we cannot say that the court exercised its discretion in an arbitrary

manner in declining to reinstate defendant on probation.




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                                   DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                 HOLLENHORST
                                                           Acting P. J.


We concur:


McKINSTER
                         J.


KING
                         J.




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