California Court of Appeal May 22, 2014 No. E057947Unpublished
Filed 5/22/14 P. v. Soteras 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E057947
v. (Super.Ct.No. SWF1102851)
RICHARD JOHN SABAT SOTERAS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge.
Affirmed.
Richard L. Fitzer, 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, and William M. Wood and
Heather F. Crawford, Deputy Attorneys General, for Plaintiff and Respondent.
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I. INTRODUCTION
A jury found defendant Richard John Sabat Soteras guilty as charged of felony
child endangerment and assault with a deadly weapon, a car, and also found defendant
personally used a deadly weapon, a car, in the assault. (Pen. Code, § 273a, subd. (a),1
At sentencing, Glenda asked the court to grant defendant probation. The probation
department recommended against probation and in favor of an unspecified prison term.
Defense counsel argued in favor of probation, and indicated a prison sentence would
likely cause defendant to be deported. Both parties filed sentencing memoranda.
At the hearing, defense counsel conceded that nothing in the applicable rules of
court (rules 4.413, 4.414) required the court to consider defendant’s immigration status in
determining whether to grant probation. The court agreed, commenting, “I don’t think
the immigration status is of concern to me,” and added it was unaware of any rules of
court requiring it to consider defendant’s immigration status in determining whether to
grant probation. Instead, the court correctly pointed out it was required to find the case
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was unusual in order find defendant eligible for probation, given that defendant
personally used a deadly weapon in the assault. (§ 1203, subd. (e)(2); rule 4.413.) And if
the case was unusual, it was also required to consider the criteria set forth in rule 4.414 in
determining whether to grant probation.
Defense counsel further conceded he could not “pinpoint to one issue” that made
the case unusual, but argued based on the “entire trial” and the totality of the
circumstances that defendant should be granted probation. Among other things, defense
counsel pointed out that defendant, using his anger management training, attempted to
diffuse the situation by walking away from the altercation with Glenda and Doe. In
addition, defendant did not intentionally “[try] to use the car . . . as a weapon” against
Doe, although he “made poor choices” in driving the car on a major road with Doe on the
hood.
The court said it agreed with much of defense counsel’s argument, but nonetheless
determined the case was not unusual and denied probation, reasoning that more factors
favored denying probation than granting it. The court said it had read the rules of court
and had given the matter “a lot of thought.” Although defendant was not “a sophisticated
criminal,” the victim was a minor, and defendant had “multiple opportunities . . . to stop
his car until the confrontation ceased.” Defendant was not in any danger from Doe
because his car windows were rolled up, yet he drove onto a “high speed roadway” with
Doe on the hood of the car, risking serious injury or death to Doe if his car were struck
and Doe were thrown off of the car. Defendant also “blam[ed] others,” including Glenda,
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“for put[ting] him into the predicament that this jury found him responsible for.” The
court imposed the low term of two years on the child endangerment conviction, and
imposed but stayed a two-year term on the assault conviction.
III. DISCUSSION
Defendant claims the court abused its sentencing discretion in denying probation,
solely because it refused to consider the “immigration consequences” of sentencing him
to prison rather than probation, specifically, the fact he was “likely” to be deported if
sentenced to prison rather than probation. He argues the case must be remanded for
resentencing with directions to consider the immigration consequences of denying him
probation and sentencing him to prison. But as the People point out, defendant’s claim
lacks merit for several reasons.
A. Defendant Forfeited His Claim by Conceding It at the Sentencing Hearing
First, defendant has forfeited his abuse of discretion claim because defense
counsel conceded at the sentencing hearing that the applicable rules of court (rules 4.413,
4.414) did not require the court to consider the likely immigration consequences to
defendant in the event he was denied probation. (People v. Scott (1994) 9 Cal.4th 331,
353 [waiver (or forfeiture) rule applies to court’s “failure to properly make” its
discretionary sentencing choices].) Defense counsel was charged with “understanding,
advocating, and clarifying” the court’s permissible sentencing choices at the sentencing
hearing. (Ibid.) Because defense counsel did not urge the court to consider the
immigration consequences to defendant of denying him probation, defendant may not
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now claim on appeal that the court abused its discretion in failing to consider this factor
in denying probation and sentencing him to a prison term.
B. The Court Properly Considered All Relevant Sentencing Factors
Second, the court thoroughly and properly considered all relevant factors listed in
rules 4.413 and 4.414 in finding the case was not unusual and denying probation. As
defendant concedes, he was ineligible for probation unless the court found his case was
unusual because he personally used a deadly weapon, a car, in the assault against Doe.
(§ 1203, subd. (e)(2) [any person who uses or attempts to use a deadly weapon against a
human being in perpetrating the underlying crime is ineligible for probation, “[e]xcept in
unusual cases where the interests of justice would best be served if the person is granted
probation”].)
The determination whether a case is unusual and the defendant is eligible for
probation—notwithstanding a statutory limitation—is governed by rule 4.413 and is
reviewed for an abuse of discretion. (People v. Stuart (2007) 156 Cal.App.4th 165, 177-
178; see also People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 829-831
[applying former rule 413, predecessor to rule 4.413 in finding unusual case].) Nothing
in rule 4.413 required the court to consider the immigration consequences of denying
defendant probation in determining whether the case was unusual.4 Thus here, the court
4 Rule 4.413(b) states: “If the defendant comes under a statutory provision prohibiting probation ‘except in unusual cases where the interests of justice would best be served,’ [e.g., § 1203, subd. (e)(2)] or a substantially equivalent provision, the court should apply the criteria in (c) to evaluate whether the statutory limitation on probation is [footnote continued on next page]
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did not abuse its discretion in refusing to consider this factor in determining the case was
not unusual, and defendant was therefore ineligible for probation.
Though it was not required to determine whether probation was appropriate under
rule 4.414 given defendant’s ineligibility for probation under rule 4.413, the court
nonetheless thoroughly considered whether probation was appropriate under rule 4.414.5
[footnote continued from previous page] overcome; and if it is, the court should then apply the criteria in rule 4.414 [facts relating to the crime and facts relating to the defendant] to decide whether to grant probation.” Rule 4.413(c) states: “The following facts may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate: [¶] (1) Facts relating to basis for limitation on probation [¶] A fact or circumstance indicating that the basis for the statutory limitation on probation, although technically present, is not fully applicable to the case, including: [¶] (A) The fact or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence; and [¶] (B) The current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense. [¶] (2) Facts limiting defendant’s culpability [¶] A fact or circumstance not amounting to a defense, but reducing the defendant’s culpability for the offense, including: [¶] (A) The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence; [¶] . . . [¶] (C) The defendant is youthful or aged, and has no significant record of prior criminal offenses.”
5 Rule 4.414 states: “Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant.” Facts relating to the crime are listed in rule 4.414(a) and include “(1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime”; and “(2) Whether the defendant was armed with or used a weapon.” Facts relating to the defendant are listed in rule 4.414(b) and include “(1) Prior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct; [¶] (2) Prior performance on probation or parole and present probation or parole status; [¶] (3) Willingness to comply with the terms of probation; [¶] (4) [footnote continued on next page]
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In arguing probation should have been granted based on his immigration status and the
likelihood he would be deported if sentenced to prison, defendant rehashes some of the
rule 4.414 factors favorable to him, but he ultimately concedes the court considered these
factors before finding they were outweighed by unfavorable factors, including the
circumstances of the offense and his lack of remorse.
Indeed, defendant argues, “[h]ad the . . . [c]ourt also considered the immigration
consequences [of its sentencing decision, he] would concede that the court . . . followed
the law and did not abuse its discretion in denying probation.” But as defense counsel
conceded at the sentencing hearing, nothing in rule 4.414 required the court to consider
defendant’s immigration status, or the likelihood he would be deported, in determining
whether probation was appropriate, assuming he was eligible for probation.
C. Defendant Has Not Shown He is Likely to be Deported Unless Granted Probation
Third, on this record defendant has not shown he is likely to be deported unless
granted probation. As the People point out: “Under federal law, ‘Any alien who . . . is
convicted of a crime for which a sentence of one year or longer may be imposed . . . is
deportable.’” (8 U.S.C.A. § 1227(a)(2)(A)(i).)
Defendant was convicted of felony child endangerment and assault with a deadly
weapon, and each of these crimes is punishable by imprisonment in the state prison for
[footnote continued from previous page] Ability to comply with reasonable terms of probation . . . ; [¶] (5) The likely effect of imprisonment on the defendant and his or her dependents; [and] [¶] (6) The adverse collateral consequences on the defendant’s life resulting from the felony conviction; . . . .”
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two, three, or four years. (§§ 273a, subd. (a), 245, subd. (a)(1).) Thus, on this record,
defendant is no less likely to be deported if granted probation rather than sentenced to
prison.
D. Sanchez Does Not Assist Defendant’s Claim
Defendant relies on People v. Sanchez (1987) 190 Cal.App.3d 224 for the
proposition that the court was required to consider the immigration consequences of
denying him probation. Sanchez does not support this proposition. There, the defendant
was an undocumented alien, convicted of selling heroin. (Id. at p. 227.) The trial court
denied probation in part because the defendant was in the United States illegally, had few
ties to the community, and was therefore unlikely to comply with the terms of any
probation. (Id. at pp. 230-231; former rule 4.414(d)(3).) On appeal, the defendant argued
the denial of probation based on his immigration status violated his equal protection and
due process rights under the federal and state Constitutions. (People v. Sanchez, supra, at
p. 228.) The Sanchez court rejected these claims and affirmed the judgment denying
probation. (Id. at pp. 230, 232.)
As the People point out, the issue in Sanchez was whether the defendant’s illegal
immigration status could be cited as a reason for not granting him probation, e.g., because
a deported illegal alien felon would be unable to comply with the terms and conditions of
his probation beyond serving any period of local incarceration. (People v. Sanchez,
supra, 190 Cal.App.3d at p. 230.) Sanchez does not stand for the proposition that a
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defendant’s deportability must be considered in determining whether the defendant
should be granted probation rather than sentenced to prison.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING J.
We concur:
McKINSTER Acting P. J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The trial court did not abuse its sentencing discretion by refusing to consider potential immigration consequences when denying probation to a defendant convicted of assault with a deadly weapon. The court properly applied the statutory criteria for determining whether a case is 'unusual' and whether probation is appropriate.
Issues
Whether the trial court abused its discretion by failing to consider potential immigration consequences when denying probation.
Whether the defendant forfeited his claim by conceding at the sentencing hearing that the rules of court did not require consideration of immigration status.
Whether the trial court properly applied the criteria for granting probation in 'unusual cases' under Penal Code section 1203 and California Rules of Court 4.413 and 4.414.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Nothing in the rules required the court to consider defendant’s immigration status in determining whether his case was unusual, and if so, whether he should have been granted probation.”
“The court thoroughly and properly considered all relevant factors listed in rules 4.413 and 4.414 in finding the case was not unusual and denying probation.”