P. v. Mitre

Filed 12/19/06 P. v. Mitre CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
GABRIEL MITRE et al.,
Defendants and Appellants.
F049761
(Super. Ct. No. 05CM2259)
O P I N I O N
THE COURT*
APPEALS from judgments of the Superior Court of Kings County. Peter M.
Schultz, Judge.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and
Appellant Gabriel Mitre.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and
Appellant Enrique Mitre.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Mary Jo Graves, Assistant Attorney General, Stephen G. Herndon and Craig S.
Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
* Before Levy, Acting P.J.; Hill, J.; and Kane, J.

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INTRODUCTION
Appellants Gabriel Mitre, age 20, and Enrique Mitre, age 18, are brothers. They
each pled guilty to one count of violating Penal Code section 245, subdivision (a), as a
non-strike offense. Gabriel was sentenced to the midterm of three years’ imprisonment
and Enrique was sentenced to the aggravated term of four years’ imprisonment. Gabriel
argues denial of his application for probation constitutes an abuse of discretion. Enrique
argues imposition of the aggravated term infringed his federal constitutional rights to a
jury trial and to proof beyond a reasonable doubt, as those rights are interpreted in
Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Neither argument is persuasive.
FACTS1
On May 13, 2005, Augustin A. and Eva T. were at the Hidden Valley Park in
Hanford when they were approached by appellants, Victor Gonzalez and an unidentified
fourth person. Gonzalez was holding a black metal pipe. Gonzalez said, “‘What’s up
mother fuckers, got you now.’” (Italics omitted.) Eva stood up and told him that she and
Augustin did not want any problems. Gonzalez pushed her to the ground. When
Augustin stood up, Gonzalez hit him in the leg with the pipe. Augustin fell to the ground.
Augustin attempted to call for emergency assistance on his cell phone. Gonzalez kicked
it out of his hand, picked it up and put it in his pocket. Enrique kicked Augustin in the
face. All four assailants began kicking Augustin in the face and head. A short time later,
they ran away.2
1 The facts are derived from the probation report because appellants waived their
right to a preliminary hearing and pled guilty.
2 A few months prior to the assault, Gonzalez and Augustin fought. Two to three
weeks prior to the assault, appellants drove by Augustin’s residence in a blue truck three
times, flashing gang signs and yelling, “‘It’s all about Norte’” (italics omitted) and
“‘Bunch of scraps.’” (Italics omitted.)

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Augustin was transported to the hospital and treated. He incurred $1,301 in
medical bills and lost wages.
Appellants and Gonzalez were questioned by members of the Kings County Gang
Task Force on May 20, 2005. Enrique eventually admitted being a Norteno gang
member. He denied being at the park on the day of the assault. Gabriel also denied being
at the park on the day of the assault and denied being involved in the fight. Gabriel
denied being involved in a gang or backing any gang. Gonzalez admitted that he was a
Norteno gang member. He also admitted that he and appellants were at the park and said
that he fought with Augustin and kicked Augustin on the ground.
Several gang affiliated items were found at Gabriel’s residence and in his
bedroom. Gabriel stated that the gang related items found in his bedroom belonged to
Enrique and Enrique’s friends. Gabriel stated that he drives a blue truck, but the truck
belongs to Enrique.
When interviewed by a probation officer on November 16, 2005, Enrique stated
that he and Gabriel watched Gonzalez beat up Augustin. When Gabriel was interviewed
by a probation officer on November 17, 2005, he stated that he and Enrique only watched
Gonzalez “fight” Augustin. Gabriel denied gang membership, stating that people think
he belongs to a gang because Enrique does.
Enrique’s probation report states that he was “pending Court on another felony
matter when he committed the present offense.” Enrique was referred to probation as a
juvenile for the following offenses: fighting, challenging a student to fight, truancy,
felony battery on a school official and felony attempted criminal threats, unauthorized
entry on school grounds.
Gabriel’s probation report states that he has no prior adult convictions. Gabriel
was referred to probation as a juvenile for the following offenses: vandalism, fighting,
disturbing the peace, possession of a smoking pipe, petty theft and truancy.

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The probation reports list the following factors in aggravation: (1) appellants were
active participants in the assault; (2) the assailants outnumbered the victim; (3) kicking
the victim in the head while he lay on the ground was callous; and (4) the victim incurred
damages as a result of the assault. The probation reports list one mitigating factor:
voluntary acknowledgement of wrongdoing at an early stage of the criminal proceedings.
The probation reports recommend that probation be denied for both appellants and that
Enriquez be sentenced to the upper term of four years’ imprisonment and Gabriel be
sentenced to the midterm of three years’ imprisonment.
Gabriel’s counsel argued at the sentencing hearing that probation should be
granted because Gabriel had not suffered any prior adult convictions or been
incarcerated, and he had a history of employment and wanted to attend college. The
court denied Gabriel’s application for probation because Gabriel presented a danger to
the safety of others.
The court denied Enrique’s application for probation because he has a history of
criminal street gang behavior, and he presents a danger to the safety of others. The court
imposed the aggravated term for the following reasons: (1) Enrique’s criminal behavior
is becoming increasingly serious; (2) Enrique engaged in violent conduct which indicates
a danger to society; (3) the victim was particularly vulnerable as he was alone with his
girlfriend in a park; (4) one of the assailants was armed with a weapon; and (5) the
assailants exhibited a high degree of cruelty in the way they performed the beating.
DISCUSSION
I. Denial of Gabriel’s application for probation was not an abuse of discretion.
When a decision denying probation is challenged on appeal, the appellant bears
the burden of clearly showing that the decision was irrational or arbitrary. “‘In the
absence of such a showing, the trial court is presumed to have acted to achieve legitimate
sentencing objectives, and its discretionary determination to impose a particular sentence
will not be set aside on review.’ [Citation.]” (People v. Superior Court (Alvarez) (1997)

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14 Cal.4th 968, 977-978.) We will not reverse a decision “‘merely because reasonable
people might disagree. “An appellate tribunal is neither authorized nor warranted in
substituting its judgment for the judgment of the trial judge.” [Citations.]’ [Citation.]”
(Id. at p. 978.)
Gabriel argues that denial of probation was arbitrary and contrary to the state of
the evidence because “[s]ubstantial evidence existed to establish [he] would not commit
such a crime in the future and the underlying offense was situational as it resulted from
unusual circumstances unlikely to recur.” We disagree. The trial court reasonably could
infer from the seriousness and violence of the offense that Gabriel presented a risk to the
community, despite his youth, history of employment, and the absence of prior felony
convictions. Gabriel kicked the victim in the head while the victim was on the ground
and thus was an active participant in the crime. Furthermore, Gabriel never admitted his
participation in the assault. The trial court reasonably could conclude he presented a risk
to the safety of the community.
Gabriel also argues that the court erroneously failed to acknowledge each of the
factors in his favor prior to denying the application for probation. This argument fails
because the court is not required to specifically set forth mitigating factors before
denying probation. (People v. Simon (1983) 144 Cal.App.3d 761, 766-767; People v.
Jordan (1986) 42 Cal.3d 308, 316.)
Having failed to demonstrate that the trial court’s decision was arbitrary,
capricious or patently absurd, Gabriel’s challenge to the denial of probation fails.
II. Imposition of the upper term did not infringe Enrique’s federal constitutional
rights as interpreted in Blakely.
Relying on Blakely, supra, 542 U.S. 296, Enrique argues judicial imposition of the
upper term infringed his federal constitutional rights to a jury trial and to proof beyond a
reasonable doubt. Our Supreme Court has decided this issue adverse to Enrique.

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People v. Black (2005) 35 Cal.4th 1238 (Black) held that a jury trial is not required
on aggravating factors that justify imposition of the upper term.3 In Black, the court
explained that jury trial of aggravating factors was not constitutionally required because
the California determinate sentencing law simply authorizes a sentencing court to engage
in the type of fact-finding that traditionally has been incident to the judge’s selection of
an appropriate sentence within a statutorily prescribed sentencing range. It is the upper
term, not the middle term, which is the statutory maximum for an offense under our
sentencing law. The level of discretion available to trial judges in California is
comparable to the level of discretion the United States Supreme Court has chosen to
permit federal judges to exercise. Therefore our discretionary system does not violate a
defendant’s Sixth Amendment right to a jury trial. (Id. at pp. 1254, 1261.)
Accordingly, under Black and based on our review of the record, we conclude the
trial court did not err. It exercised its judicial discretion in a reasonable manner
consistent with California Rules of Court, rule 4.420, when it determined that imposition
of the upper term was justified because the numerous aggravating factors outweighed the
single mitigating factor.4
3 Petition for certiorari was filed in the Black case on September 28, 2005. The
United States Supreme Court has granted a petition for certiorari to determine the
constitutionality of California’s determinate sentencing law in Cunningham v. California
(2006) __ U.S. __ [126 S.Ct. 1329].
4 In a brief footnote, Enrique asserts he should have received an additional day of
presentence credit. This assertion is not supported by legal argument and citation to
authority. Rather, Enrique states that he will ask the trial court to correct the calculation
of presentence credit and that if the trial court fails to do so, he will file for leave of this
court to file a supplemental brief raising the presentence credit issue. The appellate
record contains a copy of a request to modify presentence credits addressed to the trial
court, dated June 13, 2006. Appellant has not asked this court for permission to file a
supplemental brief properly raising the presentence credit issue. Having failed to develop
the issue with proper legal argument, we summarily dismiss the point as abandoned.
[Fn. continued.]

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DISPOSITION
The judgments are affirmed.
“Points ‘perfunctorily asserted without argument in support’ are not properly raised.
[Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 206.)

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