Filed 9/25/17 P. v. Garcia CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

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A jury convicted defendant Edward Velasquez Garcia of two counts of assault with a deadly weapon and found he had inflicted great bodily injury. On appeal, defendant contends the trial court abused its discretion in denying his Romero[1] motion to strike his prior strike. He also contends a $19,510.69 restitution order was unauthorized and must be stricken. We will affirm.

BACKGROUND

During a street brawl, defendant stabbed two victims a total of nine times. Much of the incident was captured on video.

The Stabbings

In early 2013, defendant and three friends went to a bar in Roseville. There, defendant drank a rum and Coke — his only drink that night; he was not drunk.

In the bar, some of defendant’s friends got in a scuffle with a group of African-Americans. A few punches were exchanged. Bar security told the group of African-Americans to leave.

Sometime later, defendant’s group decided to leave the bar. Outside, they came across the group they had quarreled with, along with others. One of defendant’s friends was punched by a man in a blue shirt.

Another of defendant’s friends started fighting the man in the blue shirt. Defendant’s friend had managed to get the better of the man (he was pummeling him from atop), when the two victims came out of the bar.

The two victims had each consumed about six beers. One of the victims was quite tall. The shorter of the two victims heard the man in the blue shirt call for help. The victim pushed (or “pried”) defendant’s friend off the man. After he did, one of defendant’s friends punched the shorter victim in the face. The shorter victim and that friend began fighting.

Defendant involved himself in the fight. At one point, the taller victim grabbed defendant by the jacket and flung him away from the shorter victim who was still fighting defendant’s friend.

The fight between the shorter victim and defendant’s friend moved to the opposite sidewalk. The victim punched defendant’s friend, while the taller victim stood behind him.

Defendant ran up and, using a small box cutter knife, stabbed both victims from behind, in rapid succession. He stabbed the taller victim once in the lower back and the shorter victim three times in the side. Then he grabbed his friend and left.

Defendant apparently had also stabbed both victims at an earlier point in the brawl. The shorter victim was stabbed a total of seven times, and the taller victim was stabbed twice. Both victims suffered a collapsed lung. And neither victim ever struck defendant during the brawl.

Defendant and his friends were apprehended, in a car, about a mile and a half from the bar. At trial, defendant did not recall what happened to the knife. He testified he had the knife when he got into the car, after leaving the brawl, but did not have the knife after his arrest when he was taken to jail.

Verdict, Sentencing, and the Romero Motion

A jury convicted defendant of two counts of assault with a deadly weapon and as to each found he had inflicted great bodily injury. Defendant admitted to a 1995 strike conviction for discharging a firearm. (Pen. Code, § 246.3.)[2]

Prior to sentencing, defendant moved to strike his prior strike. The trial court denied the motion. It noted the strike occurred when defendant was 18; while angry and intoxicated, defendant shot a gun into the air.

The court further noted, in 1998, defendant was arrested for driving under the influence (DUI) and placed on probation. The next year, he was arrested for a second DUI and sentenced to 10 days in jail and placed on probation. While on probation, he committed another felony, possessing methamphetamine for sale. He was denied probation and sentenced to prison for 32 months. Defendant, however, had a nine-year period of being a good father (as reflected in the numerous letters in support) and a productive member of society (raising three children, coaching soccer, & giving to charity).

As to the current offense, the court noted the nature of the offense, the multiple stabbing, the disposal of the weapon, and defendant’s leaving the scene while those left behind were seriously injured. It concluded, given his history and age, defendant fell within the spirit of the three strikes law. The court imposed a 15-year aggregate term.

At sentencing the prosecutor informed the court the state had paid $19,510.69 for the victims’ medical expenses. It added: “There’s been no stipulation. I’m asking, if there’s no stipulation, [can we] reserve and set a hearing for that.”

The court clarified, “are you requesting the Court to order a certain amount of restitution or order it reserved?” The prosecutor responded: “I’m requesting the Court order $19,510.69 payable to the Victim’s Compensation and Government Claims Board to reimburse the amount they’ve paid out.” He added: “I sent some information to the defense by way of e-mail.”

Defense counsel responded: “. . . I acknowledge the fact that [defendant’s] going to be obligated to pay back the victims [compensation board] . . . . I would have question as to the legitimacy of the lost wages, and I would suggest that that be set for a hearing . . . .”

The trial court ordered defendant to pay $19,510.69 to the California Victim Compensation and Government Claims Board (the board). And it ordered restitution to the victims in an amount to be determined in a future restitution hearing.

DISCUSSION

I

The Trial Court Properly Denied the Romero Motion

On appeal, defendant contends the trial court abused its discretion in denying his Romero motion. He argues his prior strike is “ancient,” occurring in 1994, when he was 18, drunk, angry, and suicidal. To his current offense, he avers it was unplanned, it occurred in a chaotic situation, and he mistakenly believed force was necessary to prevent serious injury to his friends.

He adds, he came from a troubled childhood: his stepfather regularly beat him. His past offenses were mostly sustained as a juvenile. He has only one parole violation. He was married and has three children. He has a good work history, and he received 41 letters in support from family and friends. He concludes this places him outside the three strikes law. We disagree.

The three strikes sentencing scheme applies where the defendant has at least one qualifying strike, unless the trial court concludes an exception should be made. (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) A trial court properly exercises its discretion in striking a strike only if it finds “in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects,” the defendant falls outside three strikes’s spirit and should be treated as though he had not committed the prior strike. (People v. Williams (1998) 17 Cal.4th 148, 161.)

When a trial court declines to strike a strike, we review that decision for abuse of discretion. (Carmony, supra, 33 Cal.4th at pp. 374-375.) We will not reverse “unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.) Where the court, aware of its discretion, “ ‘balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the . . . ruling, even if we might have ruled differently . . . .’ ” (Id. at p. 378.)

Here, the trial court properly exercised its discretion in denying the Romero motion. The court considered the nature of defendant’s present felony, his prior convictions, and his background and prospects. While defendant had nine years of being a good father and productive member of society, the violent nature of his current offense along with his other offenses support the trial court’s exercise of discretion.[3]

II

The $19,510.69 Restitution Order

Defendant next challenges the $19,510.69 order of restitution to the board. He argues the trial court failed to follow section 1202.4, subdivision (f)(4)(B) because no copies of bills submitted to the claims board were provided. We find no error requiring reversal.

Section 1202.4 directs the trial court to order restitution to the restitution fund where the victim has received assistance from the board. (§ 1202.4, subd. (f)(2).) Subdivision (f)(4)(B) states the amount of assistance “shall be established by copies of bills submitted to the California Victim Compensation and Government Claims Board reflecting the amount paid by the board . . . .”

Here, the record does not indicate such bills were provided, but it does indicate the parties stipulated to the $19,510.69 amount. The prosecutor, initially noted there was no stipulation to the $19,510.69 amount and asked to set a hearing “if there’s no stipulation.” When the court sought to clarify if the prosecutor was asking for a restitution order or a hearing, the prosecutor responded that he was asking for a restitution order and added that he had e-mailed defense counsel “information.” When invited to respond, defense counsel acknowledged defendant was obligated to pay restitution to the fund and only requested a hearing for restitution paid directly to the victims.

And even if the parties had not stipulated, any challenge to the order on appeal is forfeited by defense counsel’s failure to challenge the restitution order at sentencing. (See People v. Brasure (2008) 42 Cal.4th 1037, 1075 [“by his failure to object, defendant forfeited any claim that the order was merely unwarranted by the evidence, as distinct from being unauthorized by statute”].)[4]

DISPOSITION

The judgment is affirmed.

/s/

Blease, J.

We concur:

/s/

Raye, P. J.

/s/

Renner, J.