Filed 5/15/17 P. v. Hanby CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

MIKE ALAN HANBY,

Defendant and Appellant.
D070242



(Super. Ct. No. SCS274483)

APPEAL from a judgment of the Superior Court of San Diego County, Garry G. Haehnle, Judge. Affirmed.

Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Mike Alan Hanby of four counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and determined that he personally used a firearm in connection with those assaults. (§ 12022.5, subd. (a).) The jury also found he was guilty of numerous other counts and that other special allegations were true. All of the charges arose from an incident in which he armed himself with three loaded firearms, went to a store and took merchandise valued at nearly $2,000, then pointed a gun at four unarmed employees who came out to confront him about the theft. When police gave chase trying to apprehend him, he evaded them for several miles while failing to stop at red lights and stop signs before finally surrendering.
Hanby contends the trial court abused its discretion (1) when it failed to find this was an unusual case warranting probation, and (2) when the court sentenced Hanby to 11 years in prison for his numerous felony convictions.
FACTS
Hanby, who uses a wheelchair, went to a store in Chula Vista on the evening of September 2, 2014. He was wearing sunglasses, although it was nearly 9:30 at night. He filled a shopping cart with a television, an electronic game console, clothes, food and toys, then pushed the cart out of the store without making any effort to pay for merchandise valued at nearly $2,000.
Patricia Leon, a store supervisor, noticed Hanby's actions. She called for assistance, walked out of the store and asked Hanby for a receipt. Hanby said, "I don't know what I'm doing," but then continued to push the cart toward the handicapped parking stalls. Three other employees came out of the store to help Leon, and she dialed 911. Hanby went around the parking lot in a circle in his wheelchair and returned to face the employees with a gun in his hand. He pointed the gun at the employees and said he did not want to be crowded. The employees put their hands up and backed away, telling Hanby he was free to go. Leaving the merchandise behind, Hanby went to his van and drove away.
Responding to the 911 call, Chula Vista police spotted Hanby's van and began following as he drove onto the freeway and later exited onto surface streets in the City of San Diego. Other marked police cars joined the pursuit. As he left the freeway, the pursuing police officers activated their lights and sirens to initiate a traffic stop. Hanby did not stop but continued to drive along surface streets, maintaining a normal speed but making several turns without stopping at red lights or stop signs. During the chase, Hanby maneuvered to put other cars in between his van and the police vehicles.
Hanby eventually stopped in the middle of the road outside his home. The officers positioned their cars around the van and got out of their cars to detain him. They ordered him out of the van but he did not comply. After a few minutes, Hanby began driving again, and the officers got back into their vehicles and resumed the pursuit. Hanby continued on surface streets, again failing to stop at stop signs as he drove through a tourist area frequented by pedestrians. Police laid out a spike strip, which punctured Hanby's front tire, but he drove another several blocks to the San Diego Police Headquarters before stopping. When he finally complied with orders to get out of his vehicle, he was arrested.
Hanby was wearing a shoulder holster with a loaded silver semiautomatic handgun and a spare magazine. Police also discovered a loaded .44 magnum in a backpack strapped to Hanby's wheelchair. A small, fully loaded derringer-style revolver, identified as the gun used to assault the store employees, was found on the wheelchair under his leg. Hanby also had metal knuckles in the van.
Hanby claimed he accidentally took the wrong medical marijuana medication before he left home on September 2, and was feeling strong effects of the marijuana when he arrived at the store. He knew he was armed with three concealed, loaded firearms. He was in the store for over an hour and remembered selecting some items, but stated he was "dazed" when he left without paying for them.
Outside the store, Hanby claimed the employees who followed him did not identify themselves. He thought he was being chased through the parking lot and was afraid he would be robbed. As a result, Hanby told the employees to get back and brandished the revolver. He denied pointing the gun at anyone.
Hanby saw the police lights and heard the sirens when the police initially began following him. He was aware police wanted him to stop, but was concerned he could not get out of the vehicle safely so he decided to drive slowly to police headquarters.
Family members testified Hanby had never been in trouble with the law before and had enough money to buy the items he stole.
DISCUSSION
Hanby was sentenced to 11 years for his offenses after the court concluded this was not an "unusual" case warranting probation. He contends the court abused its discretion both by denying him probation and by sentencing him to prison for a term of 11 years.
A. The Trial Court Did Not Abuse Its Discretion in Denying Probation
Because Hanby used a deadly weapon in connection with the assault, he was presumptively ineligible for probation. (§ 1203, subd. (e)(2).) Accordingly, Hanby could be granted probation only if the court found it an "unusual case[] where the interests of justice would best be served" by granting probation. (§ 1203, subd. (e).) To determine if a case in which the defendant is presumptively ineligible for probation is an "unusual case" sufficient to overcome the presumption against probation, the court must apply criteria set forth in California Rules of Court, rule 4.413(c) and, if the court finds it is an "unusual case," the court then must apply the criteria in rule 4.414 to decide whether to grant probation. (Rule 4.413(b); see People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 830 (Du).)
There are two sets of criteria to determine whether a case is an "unusual case": those facts or circumstances relating to the basis for the presumption of ineligibility; and those facts or circumstances limiting the defendant's culpability. (Rule 4.413(c).) The first category of criteria applies when the crime is substantially less serious than other cases in which the same probation limitation is present, and the defendant has no recent record of committing similar crimes or crimes of violence. (Id., subd. (c)(1)(A).) The second category of criteria applies when (1) the defendant participated in the crime under great provocation, coercion or duress and has no record of committing crimes of violence; (2) the crime was committed because of a mental condition and there is a high likelihood the defendant would respond favorably to mental health care and treatment as a condition of probation; or (3) the defendant is youthful and has no significant record of prior criminal offenses. (Id., subd. (c)(2)(A)-(C).)
The mere fact a defendant might otherwise be suitable absent the presumptive ineligibility is not sufficient to overcome the presumptive bar against probation. (People v. Stuart (2007) 156 Cal.App.4th 165, 178.) "[I]f the statutory limitations on probation are to have any substantial scope and effect, 'unusual cases' and 'interests of justice' must be narrowly construed and, as rule 4[.413] provides, limited to those matters in which the crime is either atypical or the offender's moral blameworthiness is reduced." (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1229.) A trial court is not required to find a case unusual, even if one or more of the criteria might be met, because the language of rule 4.413 is permissive in nature. (People v. Serrato (1988) 201 Cal.App.3d 761, 763; Stuart, at p. 187.)
"The standard for reviewing a trial court's finding that a case may or may not be unusual is abuse of discretion. [Citation.]" (Du, supra, 5 Cal.App.4th at p. 831.) A defendant bears a heavy burden when attempting to show an abuse of discretion. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) " 'In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) When a sentencing decision is vested in the discretion of the trial court, its decision "will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' [Citations.]" (People v. Preyer (1985) 164 Cal.App.3d 568, 573.)
The court's finding that this was not an "unusual case" has ample support in the record. As to the circumstances of the offense, the statutory limitation on probation arose because Hanby used or attempted to use a deadly weapon in connection with the perpetration of the crime. (§ 1203, subd. (e)(2).) A court could rationally conclude Hanby's use of a deadly weapon was not merely "technically present" (rule 4.413(c)(1)) because it was not "substantially less serious than the circumstances typically present in other cases involving the same probation limitation." (Id., subd. (c)(1)(A).) To the contrary, the deadly weapon he employed here was one of the most lethal of deadly weapons, a loaded firearm. Hanby assaulted not just one victim, but instead threatened four separate victims by pointing the loaded gun directly at them. A court could conclude that pointing a loaded firearm at multiple unarmed victims in order to effectuate an escape is not "substantially less serious" than the circumstances typically present when a defendant uses a deadly weapon in connection with the perpetration of a crime. (Ibid.)
As to the circumstances of the offender, Hanby's participation in the crimes was not due to great provocation, coercion or duress (rule 4.413(c)(2)(A)), nor can Hanby (then-29 years old) be deemed particularly youthful. (Id., subd. (c)(2)(C).) While Hanby claims the record makes "abundantly clear" he committed the crimes "because of a mental condition not amounting to a defense," rendering rule 4.413(c)(2)(B), controlling on the "unusual case" analysis, there was ample evidence from which a court could conclude the second element required by that subdivision—that there is a "high likelihood" he would respond favorably to mental health care and treatment as a condition of probation—was absent here. (Ibid., italics added.) The probation officer believed Hanby did not have the ability to comply with probationary terms due to his mental health problems and history of regular marijuana use. A forensic psychologist, who evaluated Hanby in connection with questions as to his competence to stand trial, opined Hanby had poor insight into his psychological functioning and denied drug abuse notwithstanding other information suggesting he abused marijuana. A court could rationally conclude Hanby's poor insight and impulsivity, coupled with his drug dependency, did not establish a "high likelihood" he would respond favorably to mental health care and treatment as a condition of probation. (Ibid., italics added.)
Because exceptions for unusual cases are to be narrowly construed, and because the record reflects the trial court was aware of the analytical factors before it and carefully considered whether this was an "unusual case," we cannot conclude the trial court's determination that this was not an unusual case was an abuse of its discretion.
B. The Trial Court Did Not Abuse Its Discretion in Imposing the Middle Term
Although initially inclined to impose a higher term, the trial court ultimately sentenced Hanby to a total prison term of 11 years based on its selection of the middle term for each felony conviction and its discretionary determination to run some of the terms concurrently with the terms imposed on the other counts. Hanby contends the court abused its discretion in imposing the middle term rather than the lower term.
"The midterm is statutorily presumed to be the appropriate term unless there are circumstances in aggravation or mitigation of the crime." (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582-1583 (citing former § 1170, subd. (b) & former rule 420(a), now rule 4.420(a).) Generally, sentencing determinations are within the trial court's broad discretion and must be affirmed unless there is a clear showing the sentencing choice was irrational, arbitrary or capricious. (People v. Lamb (1988) 206 Cal.App.3d 397, 401.) The sentencing court has wide discretion in weighing aggravating and mitigating factors and balancing them against each other in qualitative as well as quantitative terms. (Ibid.)
The sentencing judge is deemed to have considered the relevant factors "unless the record affirmatively reflects otherwise." (Rule 4.409.)
Before sentencing Hanby the court considered the probation report, which (even after acknowledging Hanby's lack of a prior record as a factor in mitigation) recommended a sentence of over 17 years. The court also considered the defense statement in mitigation, which pointed out possible circumstances in mitigation. Ultimately it elected to impose a sentence that, in the aggregate, was substantially less than the sentence which could have been properly imposed had the court decided to run the sentences consecutively. (People v. Calhoun (2007) 40 Cal.4th 398, 408 [crimes against separate victims can be sentenced consecutively].)
Hanby asserts the failure to select the lowest possible sentence was an abuse of discretion because there were circumstances in mitigation. However, there were also circumstances in aggravation. He was personally armed with three loaded firearms. (Rule 4.421(a)(2) [armed with or use of weapon].) His course of conduct endangered four unarmed and vulnerable employees as well as any innocent bystanders at the store and during the pursuit. (Id., subd. (a)(3) [vulnerability of victims].) He planned the theft (id., subd. (a)(8) [planning]) and left the store with merchandise of significant monetary value. (Id., subd. (a)(9) [monetary value].) Finally, he was convicted of other crimes for which concurrent sentences were imposed in lieu of consecutive sentences. (Id., subd. (a)(7).)
Nothing in the record indicates the trial court neglected to consider any mitigating factors, or acted in an irrational, arbitrary or capricious manner. There was no abuse of discretion in the sentence selected.
DISPOSITION
The judgment is affirmed.


DATO, J.

WE CONCUR:




McCONNELL, P. J.




AARON, J.