People v. May-Santamaria CA1/2

Filed 6/8/15 P. v. May-Santamaria CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A139961 v. JOSE MARCOS MAY-SANTAMARIA, (Marin County Super. Ct. No. SCR184035) Defendant and Appellant.

Defendant Jose Marcos May-Santamaria pled “open” to a felony charge of assault with a deadly weapon, knowing that he faced up to seven years in state prison and that “unusual circumstances” would have to be found before he could be placed on probation. After a hearing, the trial court sentenced defendant to five years in state prison. The only issue in this appeal is whether the trial court fully understood its discretionary power to determine whether this was an “unusual case” for which probation might be granted, within the meaning of California Rule of Court, rule 4.413. We hold that the court did not, and remand for resentencing. BACKGROUND We summarize the facts from the probation report, as did the Attorney General, without objection, in her brief on appeal: “The victim reported that he was at La Selva Restaurant with his friend Jimmy drinking beer until it closed at 1:30 a.m. The victim was standing near the entrance of the restaurant when the defendant approached him with a baseball bat and hit him in the left

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side of his body two times. The victim fell to the ground and while on the ground, the defendant hit him on the right side of his head with the bat. After the victim was hit in the head, he lost conscious[ness]. The victim woke up when three of his friends walked him into the emergency room. The victim reported that the defendant was inside the restaurant with two other males. The victim did not know the defendant or have any problems with the defendant. The victim believed that the defendant and two males were gang members as they were all dressed in black. . . . “. . . [T]he victim’s friend Jimmy was interviewed by the police. Jimmy reported that he was with the victim and Israel at the restaurant and they had consumed some beers. Soon after, three girls approached their table and asked for a beer. Jimmy gave one of the girls a beer and the girls walked away. At the same time, there was a guy at another table that began to stare and give them attitude. One of the guys stated, ‘what are you looking at, you have a problem?’ Jimmy told them no and they were just having fun. Jimmy did not know why the suspect continued to bother his friend Israel. A security guard intervened and had Suspect #1 and #2 move to another table. Quickly after, both suspects got up and walked out of the restaurant. “Approximately twenty minutes later, Suspect #1 and #2 came back into the restaurant, but they were with another male that Jimmy knew as ‘Axel Lechuga.’ The victim and his friends no longer had problems with the suspects inside the restaurant. The restaurant closed at around 2:00 a.m., so the victim and his friends exited the restaurant. Outside the defendant was standing by a black Nissan Altima. When the defendant saw them, the defendant grabbed a full six [sic] baseball bat from the driver’s seat and approached the victim and Jimmy. The defendant stated to them, ‘Hey motherfucker, you trying to give me shit?’ The victim told the defendant that they were not trying to do anything and that they were not afraid of the defendant. The victim told the defendant, ‘Do it if you want.’ The defendant came at the victim and hit him in the right side of his ribs. Jimmy tried to go after the defendant but the security guard grabbed Jimmy and pepper sprayed him in the forehead. At this time, the victim’s friend Israel exited the restaurant and the defendant got into his vehicle and drove off.”