Filed 3/11/14 P. v. Young CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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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.
1
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.
2
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
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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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