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People v. Rizo4/24/2002
ants emphasize their youth, lack of criminal records, school attendance, and community involvement in contending it was unreasonable for the court to impose a sentences of 15 years to life without the benefit of such a study.
We are not aware of any authority requiring such a study as a matter of due process, and we are not prepared to say the court abused its discretion in not ordering one. The court had before it all of the information on which the probation authorities' recommendations were based, and it heard witnesses on behalf of defendants. As counsel for Salvador acknowledged to the court, "Obviously, you put some thought into this."
The court also noted it had never received a recommendation for a diagnostic study of a defendant convicted of second degree murder. Although defendants characterize the murder in this case as an unforeseen event that simply resulted from a fight that got out of control, the fact remains the record showed defendants threatened Galvan repeatedly, waited for him outside the club, and armed themselves before Galvan was shot. The court's conclusion that the circumstances of the offenses outweighed the mitigating factors in defendants' backgrounds did not exceed the bounds of reason.
B. Denial of Probation to Cesar
Cesar argues the court abused its discretion in not following the recommendation of the probation department that he be granted probation. A denial of probation generally rests within the broad discretion of the trial court and will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner. A court abuses its discretion whenever the court exceeds the bounds of reason, all of the circumstances being considered. We will not interfere with the trial court's exercise of discretion when it has considered all facts bearing on the offense and the defendant to be sentenced. (People v. Downey (2000) 82 Cal.App.4th 899, 909-910.)
Here, the record shows the court fully considered the facts bearing on Cesar's character and background, including the probation report and the numerous letters of reference. It also heard testimony from the probation officer herself regarding the reasons for her recommendation. Although as stated the officer recommended probation, she acknowledged she had not had the benefit of hearing any of the trial evidence, talking to any of the witnesses, or discussing the facts of the case with Cesar, who declined to speak on advice of counsel.
The record also shows the court duly considered the facts bearing on the offense. Cesar argues the decision to deny probation hinged entirely on the single factor that Cesar was identified as having shot a firearm during the fight. However, as this court has observed, one factor in aggravation is sufficient to justify a sentencing choice. (People v. Robinson (1992) 11 Cal.App.4th 609, 615, disapproved on another point in People v. Scott (1994) 9 Cal.4th 331, 353, fn. 16, 356.) Moreover, the court also cited the fact that Cesar, unlike Jesus and Victor, was convicted on the two additional assault charges involving Lopez and Deharo. We cannot say on this record that the decision to deny probation exceeded the bounds of reason.
In his reply brief, Cesar asserts the court should have referred him for a diagnostic study under Penal Code section 1203.03 if it did not grant probation outright. This argument was not made in Cesar's opening brief and is therefore untimely. (People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26.) In any event, it lacks merit for the reasons we stated in the preceding section, in addressing the same contention by the other blue jury defendants.
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