People v. Quach CA3

Filed 3/25/16 P. v. Quach CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C079955

Plaintiff and Respondent, (Super. Ct. No. 14F04630)

v.

KHAI QUANG QUACH,

Defendant and Appellant.

Defendant Khai Quang Quach pled no contest to assault with a firearm and was sentenced to a five-year prison term. (Pen. Code, § 245, subd. (a)(2).)1 On appeal, he contends the trial court abused its discretion by refusing to find unusual circumstances and denying him probation. He also contends the trial court erred in imposing a $500 domestic violence fee because it is only applicable to defendants who are granted probation. We shall strike the $500 domestic violence fee and affirm the judgment as modified.

1 Undesignated statutory references are to the Penal Code.

1

FACTUAL AND PROCEDURAL BACKGROUND Defendant and T.N. are married and have two children together. In July 2014, defendant, who had been drinking, entered the bedroom where T.N. and the children were sleeping. He shot his gun near T.N.’s face, injuring her ear and face. Defendant then showed the gun to T.N. and continued to make verbal threats. Defendant left the room and then came back, accusing T.N. of being unfaithful and threatening to stop supporting her and the children. Soon thereafter, T.N. went to the hospital for treatment and spoke with the police. The police also went to the family home to check on the children, and defendant told them he could not remember what happened, but that the gun went off accidentally. Defendant also said he was drunk. T.N. told the police defendant often carried the gun around the house. Although she never thought he would do anything with the gun, he often got “mad and drunk,” and he would pick up the gun while talking with her. Defendant pled no contest to assault with a firearm and admitted he personally used a firearm. (§§ 245, subd. (a), 12022.5, subd. (a).) Defendant was eligible for probation if his case were unusual pursuant to California Rules of Court, rule 4.413,2 (§ 1203, subd. (e)(2)) and the probation report recommended probation. The report noted the circumstances of the crime were less serious than those typically present in similar crimes, and defendant had no record of similar crimes or violent crimes. The crime was spontaneous, and the victim did not want defendant incarcerated. In addition, defendant participated in multiple rehabilitation programs and had stopped drinking. The trial court took issue with the probation report and found the case was not unusual or less serious than a typical assault with a firearm. The court acknowledged