P. v. Mesa

Filed 10/19/06 P. v. Mesa CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 THREE

This case, along with four others we address in separate opinions,[1] arises from a violent street fight between rival gang members. Martin Mesa, Jr. pleaded no contest to assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1))[2] and admitted great bodily injury and gang-related enhancements. (§§ 186.22, subd. (b), 12022.7.) A year earlier, Mesa entered pleas to separate charges of assault with a deadly weapon, with a gang enhancement, and possession of brass knuckles (§ 12020, subd. (a)(1)). He was sentenced to a total term of 17 years 8 months imprisonment. On appeal, Mesa argues a new sentencing hearing is required because the trial court denied probation based on an erroneous belief that he was presumptively ineligible. We agree and remand the case for resentencing.

BACKGROUND

I. August 2002 Offense

On August 25, 2002, police officers responded to a report of a fight involving several people.[3] They arrived to find two individuals lying on the ground covered in blood. Both appeared to have multiple stab wounds and other visible injuries, and one of the victims was unresponsive. En route to the hospital, victim Grame Kanongataa said he and his friends were at the Arco gas station when they were attacked by a group of approximately 14 people. Kanongataa appeared to have been drinking alcohol. He refused to answer further questions about the incident and became so combative with hospital staff that he had to be restrained. Kanongataa suffered 10 to 12 puncture wounds during the fight. These were stapled closed and he was discharged from the hospital the same night.

Victim William Rodriguez drifted in and out of consciousness on the way to the hospital, and he appeared to be highly intoxicated. He was mostly unresponsive to questions about the incident but eventually stated that he was cleaning a car windshield when he was attacked by a group of men. At the hospital, exploratory surgery was performed to determine the extent of Rodriguez’s injuries. He had sustained stab wounds and a deep puncture wound to his torso, near the liver, but the internal organs remained undamaged. Rodriguez had also been struck several times with a blunt instrument.

Witnesses interviewed at the scene reported that the victims had been assaulted on the gas station’s sidewalk and then chased into the road by a group of individuals who fled before the police arrived. The assault appeared gang-related. The attackers, who appeared to be members of the Sureño gang, rode in as many as five vehicles. One of these vehicles ran into Kanongataa, knocking him to the ground.

When he was interviewed, Erlin Rodriguez, William’s brother, referred to the attackers as “ ‘scraps,’ “ a derogatory name for members of the Sureño gang, and he admitted he and William were Norteño gang members. Erlin said he had yelled a derogatory statement about the Sureño gang to some passing cars. These cars stopped and the attackers emerged, yelling derogatory remarks about Norteños and running toward Erlin. As he fled, pursued by Antonio Hernandez, he yelled to William and Kanongataa for help. Erlin witnessed the ensuing fight. He told police one of the attackers hit William with an “ ‘ASP’ style baton,’ “ and the assailants hit and kicked William numerous types after he fell to the ground.

Later that night, Hernandez and other individuals brought Luis Santana to the hospital for treatment of a stab wound to Santana’s arm. Police officers who reported to the hospital noticed several of these individuals had blood stains on their clothing, and they were not forthcoming in explaining what had happened. Santana initially told police he had been at a wedding reception, where he became extremely intoxicated. He did not know where he went afterward but believed he cut his arm when he fell onto a piece of glass. Later, on September 5, 2002, Santana acknowledged to police that he had been involved in the altercation, but he claimed he was the one who was attacked. He admitted striking William Rodriguez with a black stick but said he did so only after Rodriguez stabbed him. Hernandez also claimed the victims provoked the fight. Though he admitted being a gang member, Hernandez denied assaulting or stabbing anyone, claiming he had only watched the fight and chased one of the victims. He refused to identify anyone except Santana.

A female witness who had been riding in Santana’s car said many of the suspects were at a wedding reception earlier that evening, and afterward she went with Santana and Hernandez to Benjamin Moreno’s house. Many Sureño gang members were present here. Around 1:00 a.m., four to five carloads of people left to go to another location. Santana drove his Volkswagen, taking Hernandez, the witness and another female passenger. She also recalled that appellant Martin Mesa drove his white Ford Taurus and took several passengers. While driving, the group encountered the victims at a gas station, and gang-related slurs were exchanged. Then, the men exited their cars and attacked the victims. The witness believed someone in her group may have passed around knives. She identified Jose Gomez as having been at Moreno’s house, and she identified Santana, Moreno, Cesar Ramirez and Sergio Zarate as having been involved in the assault. When asked to name persons involved in the assault, another female witness identified the same individuals plus Hernandez, Mesa, Jesus Flores and Mauricio Cuevas. Although she did not recall who had stabbed the victims, she knew Cuevas and Moreno were carrying small knives before the assault.

The police interviewed several suspects but did not make contact with Mesa until December 2002. Although he initially denied involvement in the assault, Mesa provided statements suggesting otherwise when confronted with inconsistent evidence. Mesa denied stabbing either of the victims, saying that others involved knew who had done the stabbing. He was reluctant to provide further details, for fear of being killed. Mesa admitted being a gang member.

On December 15, 2003, the grand jury returned an indictment against 14 defendants regarding this incident. Eventually, after motions and changes of plea resulted in the early resolution of charges against some defendants, a fourth amended indictment was filed against appellant Mesa, along with Cuevas, Delgado, Gomez, Hernandez and Santana. Count I charged them all with the attempted premeditated murder of William Rodriguez (§§ 664, subd. (a), 187, subd. (a)); count II charged them with the attempted premeditated murder of Grame Kanongataa; count III charged them with assault with a deadly weapon against Rodriguez (§ 245, subd. (a)(1)); counts IV and V charged them with assault with a deadly weapon against Kanongataa (count IV referring to the use of knives and baton-type weapons, and count V referring to use of a motor vehicle); count VI charged them with assault with a deadly weapon against Erlin Rodriguez; count VII charged them with participation in a street gang (§ 186.22, subd. (a)); and count VIII charged Santana with threatening a witness (§ 136.1, subd. (c)(1)). The indictment also alleged enhancements for personal infliction of great bodily injury (§ 12022.7, subd. (a)) and commission of crimes to benefit a criminal street gang (§ 186.22, subd. (b)(1)).[4]

II. September 2003 Offense

During the night of September 16, 2003, officers of the Santa Rosa Junior College Police Department saw a large group of people fighting in a parking lot. As the officers watched, the group threw glass bottles at two individuals who were running away. The crowd yelled obscenities at the officers as they approached, and two people threw full beer bottles at them. The group immediately sped away by vehicle, and the officers called for assistance. In the area of the fight, the officers observed fresh graffiti tags associated with the Sureño gang.

A few minutes later, Santa Rosa Police Department officers stopped a vehicle fitting the description they had received. Martin Mesa was one of the car’s five occupants. Because all of the male passengers had shaved heads and wore predominantly blue clothing, the police suspected they were Sureño gang members. During a consent search of the car, officers found three unopened beer bottles, blue clothing and a pair of brass knuckles where Mesa had been sitting. Mesa claimed the brass knuckles did not belong to him and said he did not know where they had come from, but they were found in a place that would have been difficult for any other occupant in the car to access. Other potential weapons (a screwdriver and a child’s aluminum bat) were found in other areas of the car. Although Mesa and his companion admitted to being Sureño gang members, they gave the police false names.

Mesa was charged with felony possession of brass knuckles (§ 12020, subd. (a)(1)) and participating in a criminal street gang (§ 186.22, subd. (a)). In a negotiated disposition, Mesa pleaded guilty to the weapon possession charge, and on November 10, 2003, he was placed on formal probation for three years.

III. December 2003 Offense

On the evening of December 19, 2003, a group fight broke out in the lobby of a movie theater. Victim Lawrence Prez and four witnesses told police they were confronted and challenged to a fight by three individuals. As they approached, the men asked, “What do you bang?” meaning did they belong to the Sureño or Norteño gang. The men brandished a hammer, chain and several beer bottles. Prez stepped in front of his friends and told the three to drop their weapons and “ ‘fight fairly,’ “ but they responded by ganging up to attack Prez. The men kicked and punched Prez, knocking him to the ground, and one struck Prez in the leg with a hammer. Another one of the assailants threw a beer bottle at Prez but missed hitting him. Witnesses also reported one of the group swung a chain at Prez, but he also missed. During the fight, one of the attackers yelled out his Sureño gang affiliation, and all repeatedly chanted “ ‘south side.’ “ A theater employee broke up the fight, and the attackers drove away.

Prez and the witnesses all denied gang affiliation, though Prez said he may have been mistaken for a Norteño gang member because he wore a red shirt. The police later detained five subjects. In an in-field line-up, witnesses identified Martin Mesa as the person who brandished and threw the beer bottle. Mesa displayed Sureño gang tattoos and had admitted to being a Sureño gang member.

After a preliminary hearing, Mesa was charged on March 15, 2004, with four counts of felonious assault (§ 245, subd. (a)(1)) and one count of carrying a firearm in a vehicle, in violation of section 186.22, subdivision (a). In addition, this offense was alleged to be a violation of Mesa’s probation from the September 2003 incident. The trial court summarily revoked probation and set the matter to trail Mesa’s trial.

IV. Sentencing

In October 2004, Mesa entered pleas that resolved all three of his outstanding cases. On October 13, 2004, he waived his rights and pleaded no contest to assaulting William Rodriguez with a deadly weapon and admitted enhancements for personally causing great bodily injury and committing a crime for the benefit of a criminal street gang. (§§ 245, subd. (a)(1), 186.22, subd. (b), 12022.7). On the change of plea form, Mesa indicated his understanding that he could be sentenced to a maximum term of 17 years imprisonment. The following day, October 14, 2004, Mesa waived his rights and pleaded no contest to assaulting Lawrence Prez with a deadly weapon and admitted an enhancement for committing a crime for the benefit of a criminal street gang. (§§ 245, subd. (a)(1), 186.22, subd. (b)). On the change of plea form, Mesa indicated his understanding that he could be sentenced to a maximum term of 14 years imprisonment for the offense. As a consequence of this plea, the court found Mesa in violation of his probation from the brass knuckles possession case.

The court held a sentencing hearing to address all three matters on December 21, 2004. For the Rodriguez assault, the court sentenced Mesa to the midterm of three years, plus three years for the great bodily injury enhancement and 10 years for the gang enhancement, for a total of 16 years imprisonment. For the Prez assault, the court sentenced Mesa to a consecutive term of one year (representing one-third of the midterm sentence) and stayed the gang enhancement. Finally, for the brass knuckles case, the court sentenced Mesa to a consecutive term of eight months (again, one-third of the midterm sentence). Mesa was thus sentenced to a total of 17 years 8 months in state prison.

DISCUSSION

Mesa argues the case must be remanded for resentencing because the trial court denied probation under the mistaken impression that he was presumptively ineligible for probation. This claim rests primarily on a statement by the probation department in a combined presentence report. While the report indicated that no statute precluded a grant of probation for the Rodriguez assault, it represented that Mesa was limited from receiving probation consideration for the Prez assault “as a result of this offense involving the use of a deadly weapon, pursuant to [section 1203, subdivision (e)(2)].” The department further stated that no factors indicated this was an unusual offense in which probation could be granted despite the statutory limitation.

Section 1203, subdivision (e)(2) provides: “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 . . . [a]ny 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.” For this statute to apply, there must be a finding, or an admission, that the defendant personally used a deadly weapon in committing the offense. (People v. Alvarez (2002) 95 Cal.App.4th 403, 408-409; People v. Manriquez (1991) 235 Cal.App.3d 1614, 1618-1620; see also People v. Lewis (2004) 120 Cal.App.4th 837, 854 [remanding for a finding, on the record, of facts sufficient to support probation ineligibility under section 1203, subdivision (e)(3)].) Thus, in People v. Alvarez, a defendant who pled no contest to assault with a deadly weapon was not statutorily ineligible for probation because the trial court had previously concluded the defendant did not wield a weapon but was merely a participant in the assault. (People v. Alvarez, supra, 95 Cal.App.4th at p. 405.) As in Alvarez, the record contains no finding that Mesa personally used a deadly weapon in committing the Rodriguez or Prez assaults. No personal use enhancement (§ 12022, subd. (b)(1)) was alleged against Mesa or admitted in either of his pleas.

Implicitly conceding section 1203, subdivision (e)(2) did not apply, the Attorney General suggests Mesa was presumptively ineligible for probation in any event because he admitted an enhancement in the Rodriguez matter for personal infliction of great bodily injury (§ 12022.7). (See § 1203, subd. (e)(3) [providing probation shall not be granted, except in unusual cases, to “[a]ny person who willfully inflicted great bodily injury or torture in the perpetration of the crime”].) However, section 1203, subdivision (e)(3) renders a defendant presumptively ineligible for probation only when the defendant has “willfully” inflicted great bodily injury on the victim. Whereas the section 12022.7 enhancement requires only a general criminal intent, section 1203, subdivision (e)(3) has been interpreted to require a finding that the defendant harbored a specific intent to cause great bodily injury. (People v. Lewis, supra, 120 Cal.App.4th at pp. 852-854.) Mesa’s admission does not establish a specific intent, and the trial court made no such finding.

The Attorney General also argues the sentence should be affirmed because the trial court denied probation due to the prevalence of aggravating factors, and not due to a mistaken notion that Mesa was presumptively ineligible. The extent to which the trial court’s denial of probation was based upon an erroneous belief about Mesa’s statutory eligibility is somewhat unclear from the record. Viewing the sentencing proceedings in their entirety, however, it appears the mistake about Mesa’s eligibility may have played a significant role in the court’s decision to deny probation.

First, defense counsel’s arguments at the sentencing hearing were apparently framed by a belief that Mesa was presumptively ineligible for probation. Defense counsel concluded his arguments by noting, “there are circumstances for which an unusual case could be made for the granting of probation,” but then candidly acknowledged that a grant of probation was unlikely.

Second, and more significantly, the trial court appeared to share counsel’s mistaken belief. Although the court mentioned certain aggravating factors when announcing its decision to deny probation and impose sentence, the court concluded its remarks by invoking the presumptive ineligibility standard of section 1203, subdivision (e). Specifically, the court said: “I was not impressed by the statements of Mr. Mesa regarding his involvement in [the offenses]. He, if one is to believe his statements, he’s probably the most unlucky human being God has ever breathed life into, because he gets accused of all kinds of outrageous acts when he’s either not present or merely present at the scene. And the Court really, frankly, is not particularly impressed by that. The Court is impressed by his prior record, which consists of a [section] 242 [violation] in the past as well as these two violent crimes before the Court. And in reading that information, the Court clearly believes that probation is not appropriate. There are no unusual circumstances to justify a grant of probation in this case.“ (Italics added.) Had the court not ended its comments by referring to section 1203, subdivision (e)’s requirement of unusual circumstances, we might have accepted the Attorney General’s interpretation of the basis for the probation denial. This reference, however, suggests the trial court may have decided probation was inappropriate not because of the aggravating factors it listed, but because these factors demonstrated the absence of unusual circumstances.

That the aggravating factors would have been sufficient to deny probation in any event is irrelevant, because we may not apply a harmless error analysis under these circumstances. Numerous cases have held that “when . . . the sentencing court bases its determination to deny probation in significant part upon an erroneous impression of the defendant’s legal status, fundamental fairness requires that the defendant be afforded a new hearing and ‘an informed, intelligent and just decision’ on the basis of the facts. [Citation.]” (People v. Ruiz (1975) 14 Cal.3d 163, 168; see also People v. Alvarez, supra, 95 Cal.App.4th at p. 409 [remand for resentencing due to mistaken application of section 1203, subdivision (e)(2)]; People v. Manriquez, supra, 235 Cal.App.3d at p. 620.) A new sentencing hearing is therefore necessary so that the trial court may consider Mesa’s probation request under the appropriate legal standard.

DISPOSITION

The judgment is reversed and the matter remanded for resentencing.

_________________________

McGuiness, P.J.

We concur:

_________________________

Pollak, J.

_________________________

Siggins, J.

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[1] People v. Cuevas (Oct. 19, 2006, A109146), People v. Delgado (Oct. 19, 2006, A108852), People v. Gomez (Oct. 19, 2006, A110353) and People v. Hernandez (Oct. 19, 2006, A109214).

[2] All statutory references are to the Penal Code.

[3] In light of Mesa’s pleas, our recitation of facts derives from the probation reports. (See People v. Barasa (2002) 103 Cal.App.4th 287, 290, fn. 1.)

[4] An additional enhancement to count I was alleged against Santana only for weapons use. (§ 12022, subd. (b)(1).)