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Judge Did Not Abuse Discretion in Denying Probation to 73-Year-Old Assailant—C.A.
By a MetNews Staff Writer
A judge did not abuse his discretion in sentencing a man to seven years in prison for an attack on his girlfriend’s son with a machete, the Court of Appeal for this district held yesterday, rejecting the defendant’s contention that he ought to have been placed on probation because he was, at the time of the fray, 73 years old and his only prior offense was a misdemeanor committed more than two decades earlier.
Justice Frances Rothschild wrote the opinion, which was not certified for publication. It affirms a judgment of Los Angeles Superior Court Judge Carlos A. Chung, pursuant to a jury verdict.
The jury adjudged Francisco Guillen guilty of one count of assault with a deadly weapon and found true the allegation that he personally inflicted great bodily injury. Guillen’s attack occurred on July 17, 2019 in a make-shift structure in the backyard of a home.
He and the owner of the home resided in the shack. The owner’s two sons, one a minor and the other an adult, lived in the house.
Guillen apparently lured the adult son—with whom he had frayed relations and had tangled with two years earlier—into the shack, and attacked him. He claimed self defense but failed to persuade the jury that the son instigated the fight.
Explanation of Sentence
In sentencing him, Chung said:
“[Guillen] has a minimal history. I recognize he is older but I also recognize there are aggravating circumstances....This involved great violence. I believe it involved some sophistication. I believe he lured the victim into the building to attack him. The weapon was used. So for all those reasons I am going to not only deny probation, but select the high term of four years. I will impose the three-year enhancement…for a total of seven years [in] state prison.”
Rothschild said there is a presumption under Penal Code §1203(e)(2) that a person convicted of assault with a deadly weapon is ineligible for probation “[e[xcept in unusual cases in which the interests of justice would best be served if the person is granted probation.” She noted that California Rules of Court, rule 4.413 says a factor that can be used in determining a case to be “unusual” id that the defendant “has no recent record of committing crimes of violence” and is “aged, and has no significant record of prior criminal offenses.”
Guillen claimed the benefit of those provisions.
Factors, Not Mandates
Rothschild pointed out that these are factors which may be weighed, but create no entitlement to probation. She acknowledged that Guillen committed his crime at age 23 and that more than 20 years had passed since his only prior offense, but said:
“Nonetheless, the trial court was not required to accord exclusive weight to these mitigating factors.”
The jurist said a trial judge’s exercise of sentencing discretion should be countermanded only “in a very extreme case” and said this was not such as case.
The decision comes in People v. Guillen, B305582.
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