P. v. Givens CA3

Filed 5/20/13 P. v. Givens CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C070625

Plaintiff and Respondent, (Super. Ct. No. 10F07850)

v.

ISAAC MARINO GIVENS,

Defendant and Appellant.

THE PEOPLE, C070924

Plaintiff and Respondent, (Super.Ct.No. 10F07850)

v.

CESAR SANTANA,

Defendant and Appellant.

For their part in a continuing violent rivalry between subsets of the Norteño gang, defendants Cesar Santana and Isaac Givens were found guilty by jury of shooting at an

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inhabited dwelling (Pen. Code,1 § 246) for the benefit of a criminal street gang (§ 186.22, subd. (b)(4)). Both were sentenced to 15 years to life in state prison. On appeal, Santana contends the trial court abused its discretion in denying him probation because his was an unusual case, and his sentence of 15 years to life is cruel or unusual. Givens joins the second contention and also contends the trial court violated the ex post facto prohibition by imposing a $240 restitution fine when the applicable minimum was $200. Disagreeing, we shall affirm. FACTS Most Hispanic gang violence in Sacramento, a predominately Norteño city, is between various subsets of Norteños as the subsets seek to establish the pecking order. Among the Norteño subsets are the Varrio Diamonds, the 14th Avenue Norteños, and the Fruitridge Vista. The 14th Avenue and Fruitridge Vista subsets are aligned. Santana is a member of the 14th Avenue Norteños and Givens is a member of the Fruitridge Vista subset. A rivalry between the Varrio Diamonds and the 14th Avenue subsets began in 2005 when a 14th Avenue gang member shot and killed a Varrio Diamond gang member. The rivalry was dormant for a number of years, but began again in 2009 with drive-by shootings. It continued on December 3, 2010, when three men, Givens, Perez, and Garay, entered a convenience store and encountered two Varrio Diamonds. One of the Varrio Diamonds, Andrew Martin, shot Garay On December 8, 2010, gang detectives were conducting surveillance of 7432 17th Avenue, the home of Martin‟s grandmother, looking for Martin. The detective closest to the house saw a silver car slow as it approached 7432 and then pull to the curb. Santana, the passenger, got out and walked to 7432. There, he pulled a handgun from his