Opinion
D058025 Super. Ct. No. SCD223442
01-24-2012
THE PEOPLE, Plaintiff and Respondent, v. ROBERT A. GALLARDO, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, William H. Kronberger, Judge. Affirmed.
A jury convicted Robert A. Gallardo, Jr. of making a criminal threat (Pen. Code, § 422, count 2), misdemeanor infliction of corporal injury to a person he formerly dated (§§ 17, subd. (b)(4), 273.5, subd. (a), count 3), vandalism (§ 594, subd. (a)(b)(2)(A), count 5), two counts of disobeying a restraining order (§ 273.6, subd. (a), counts 6 & 7), and misdemeanor battery (§243, subd. (e)(1)). Gallardo subsequently admitted three of four prison prior allegations under sections 667.5, subdivision (b) and 668. The court sentenced Gallardo to prison for five years, comprised of the two-year middle base term for making a criminal threat and three years for Gallardo's three prior prison terms. The court also imposed 365 days for the remaining misdemeanor charges with credit for time served.
Statutory references are to the Penal Code unless otherwise specified.
The People charged Gallardo with corporal injury to a cohabitant (§273.5, subd. (a), count 1). The jury found Gallardo not guilty on this count, but convicted Gallardo under the lesser included offense of misdemeanor battery (§243, subd. (e)(1)).
Gallardo appeals, contending the court committed reversible error in admitting certain out-of-court statements. Gallardo further argues the court abused its discretion in refusing to grant his request for a brief trial continuance, and the court's cumulative errors denied Gallardo his due process right to a fair trial. Finally, Gallardo argues the court abused its discretion in failing to reduce his conviction under section 422 to a misdemeanor and/or dismiss his prison priors for purposes of sentencing. We affirm.
FACTS
The underlying facts of the counts against Gallardo are not relevant to most of the issues raised in this appeal. To the extent any facts are necessary, we report them in the applicable discussion section below. Suffice to say, the counts arise from the tumultuous relationship between Gallardo and his former girlfriend, Chandra Alessio: a relationship doomed by threats, violence, and abuse.
DISCUSSION
I
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ADMITTING THE
TESTIMONY REGARDING WHAT THE VICTIM TOLD THE POLICE
Gallardo asserts the court abused its discretion when it admitted testimony from certain police officers regarding what Alessio had told them because such testimony was inadmissible hearsay. In addition, he insists the admission of these statements combined with Alessio's inability to recall numerous details during cross-examination violated his Sixth Amendment right to confront witnesses. We reject both contentions.
A. The Prosecution's Motion In Limine To Admit Police Officers' Testimony
The prosecutor made a pretrial in limine motion to admit testimony by two police officers regarding what Alessio told them. He argued the proffered testimony was admissible either under the spontaneous utterance exception to the hearsay rule (Evid. Code, § 1240) or as past recollection recorded exception to the hearsay rule (Evid. Code, § 1237). The prosecutor contended all the statements were reliable and admissible for their truth, adding that since Alessio would testify at trial, Gallardo would have ample opportunity to confront and cross-examine her.
Gallardo made a pretrial objection to the proffered testimony and made a standing objection to the testimony at trial, unsuccessfully asserting the testimony describing Alessio's statements was hearsay, did not meet the standard for past recollection recorded, consisted of the officers' summaries rather than Alessio's statements, and violated his Sixth Amendment right to confront and cross-examine Alessio because she testified that she did not recall the statements. The trial court overruled Gallardo's objections.
B. The Officers' Testimony
Gallardo attacks the testimony of San Diego Police Officers Carlos Robles and Bruce DeBord. Both Robles and DeBord testified at trial, over Gallardo's objection, regarding Alessio's statements to them. Gallardo argues Alessio's statements were inadmissible hearsay.
1. Robles
Robles responded to a domestic violence call from Alessio's residence on February 11, 2009. Robles contacted Alessio when he arrived. He wrote a report based upon his response to the call. The report included a statement Alessio provided.
Alessio told Robles she was fearful of her ex-boyfriend (Gallardo), with whom she had just broken up. Alessio told Robles that Gallardo was angry because she did not let him into her house. Gallardo therefore had slashed her tires the night before. Alessio said she knew Gallardo slashed her tires because he called her the day after she discovered her tires had been slashed. When Alessio asked Gallardo if he had new tires for her, Gallardo replied, "If you think that is bad, wait till you see what I do next." Alessio told Robles that after she hung up the phone, Gallardo called back and accused her of having sex with one of his friends. When Alessio denied his accusation, Gallardo replied, "Wait till tomorrow."
In preparing his report, Robles used quotation marks to transcribe the exact words used by Alessio when she talked to him.
2. DeBord
On February 15, 2009, DeBord responded to a domestic violence call from Alessio's residence. As part of his response, DeBord prepared a report that included statements Alessio made to him. After reviewing his report to refresh his recollection, DeBord testified regarding what Alessio told him on February 15.
DeBord testified Alessio told him she was frightened of Gallardo. He further testified Alessio told him that Gallardo had grabbed her hair, hit her on the back of the head, threw her to the kitchen floor, and kicked her in the chest. DeBord also testified that Alessio told him Gallardo had said, "You think this is bad. I'm going to fuck you up. You just wait. Wait till I get you. I'm going to take it to the next level." DeBord stated Alessio told him she was afraid of retaliation.
Alessio also told DeBord about an incident that occurred in November 2008. She informed him she had gone to the hospital because Gallardo hit her, injuring her nose.
C. Alessio's Testimony
In response to the prosecution's motion in limine to admit statements Alessio made to Robles and DeBord, the court held an Evidence Code section 402 hearing. During the hearing, Alessio's testimony was marred by forgetfulness. When first asked about talking to Robles on February 11, she said she did not remember calling the police at that time. Later, however, she admitted that both she and Gallardo had called the police in February 2009, but she was "not going to pinpoint nothing." She did admit that she talked to the police and told the police the truth "every time." In addition, after reviewing Robles' report and DeBord's report, she testified that she remembered talking to the police and she told them the truth. Nevertheless, she was unable to recall most of the details that lead to the police coming to her residence on February 11 and 15, 2009 or the substance of what she told the officers on those dates.
At trial, Alessio's memory did not improve. She began her testimony by admitting she did not want to testify, still loved Gallardo, and did not want anything bad to happen to him.
When asked about the November 2008 incident, Alessio testified she did not remember exactly what occurred. After she refreshed her recollection by reviewing a restraining order request she prepared on February 17, 2009, she was able to recall more details. She admitted that she had gotten into an argument with Gallardo, and he flung his arm and hit her in the nose. She further testified she had a spoon in her mouth when she was hit, she chipped a tooth, and had to go to the hospital because her nose would not stop bleeding. She also admitted that she lied to the hospital staff when she told them she had injured herself falling in the shower because she did not want to get Gallardo in trouble.
Alessio recalled that the police had responded to her house numerous times over the last two years and that when she made statements to them, she was honest. The prosecutor tried to refresh her recollection with Robles's report, but Alessio was unable to recall most of the events in the report with any detail or what she told Robles. However, she admitted what she told Robles was the truth.
After refreshing her recollection by reading DeBord's report, Alessio testified she did not remember calling the police on February 15, but did remember the police came to her house on that date and she spoke with them. She admitted that she told the truth to the police officer that day. Alessio could not recall most details contained in DeBord's report, but stated the events memorialized in the report were fresher in her mind on February 15, 2009 than at trial.
D. Gallardo's Contentions
Gallardo repeats the same arguments his trial counsel made regarding the admissibility of the officers' testimony, arguing it was not admissible under Evidence Code section 1237. Specifically, he contends Alessio did not testify her statements offered by the police were true, the officers merely summarized Alessio's statements, the passage of time between the November 2008 incident and the February 15, 2009 report render Evidence Code section 1237 inapplicable, and the officers' testimony contained double or triple hearsay. Like the trial court, we conclude Gallardo's arguments are unavailing.
Evidence Code section 1237 provides, in pertinent part: "(a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which: [¶] (1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness' memory; [¶] (2) Was made (i) by the witness himself or under his direction or (ii) by some other person for the purpose of recording the witness' statement at the time it was made; [¶] (3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and [¶] (4) Is offered after the writing is authenticated as an accurate record of the statement."
Gallardo argues Alessio did not testify the statements offered by the officers were true. Further, he claims the testimony was equivocal at best in testifying that she told the officers the truth because she included caveats like, "if I said that." While she did not recall most of what she previously told the police on February 11 or 15, 2009, Alessio was clear she did not lie to the police. She also testified she remembered talking to the police. Her caveats did not diminish her testimony that she told the truth, but instead, indicated she could not remember the content of the statements. In other words, she did not remember what she said, but was sure what she said was the truth. No more was needed for the prosecution to lay foundation that Alessio's statements to the officers were true. (See People v. Cummings (1993) 4 Cal.4th 1233, 1293-1294 (Cummings).) She admitted that she had talked to the police and what she told them was true, and Gallardo does not argue Alessio was lying or otherwise unable (e.g., intoxicated) to tell the officers the truth. The fact that she could not recall the details contained in the report does not make Evidence Code section 1237 inapplicable. (Ibid.) To necessitate the declarant to recall the actual details contained in the statements offered by the officers at trial, as Gallardo urges, would create a new requirement not found in Evidence Code section 1237. (See Evid. Code, § 1237.) Further, such a requisite would unfairly prejudice the prosecution in cases like this one where the victim makes a statement to the police while the events are fresh in her mind, but later is unable to recall any of the pertinent details at trial after she admits she does not want to testify against the defendant and wants to keep him out of trouble.
Gallardo also claims the officers did not testify as to Alessio's actual statements, but instead, summarized them. However, Gallardo does little to develop this contention. He does not provide examples of the officer's summation or explain how the officers' testimony could comply with Evidence Code section 1237. Interpreting his argument in the most logical fashion, it appears he contends the officers must testify about Alessio's statement in the first person. Gallardo offers no authority, and we have found none, to support his position. Further, such a formulaic requirement is unnecessary. In reviewing the record, it is clear the officers were testifying regarding what Alessio told them. They did not embellish or add their own opinions. Instead, they merely repeated Alessio's statement, but did so in the third person. This did not render the testimony inadmissible under Evidence Code section 1237.
Gallardo next contends the passage of time between the November 2008 incident and Alessio's statement on February 15, 2009 regarding the incident makes Evidence Code section 1237 inapplicable. Again, Gallardo fails to cite to any authority holding such a lapse of time renders the statements inadmissible, and we are aware of none. (Cf. People v. Miller (1996) 46 Cal.App.4th 412, 422 [recorded statement made at least three weeks after recorded events occurred was admissible under Evid. Code, § 1237],
disapproved on other grounds in People v. Cortez (1998) 18 Cal.4th 1223, 1240.) Nor does he offer any justification regarding why we should adopt his urged per se rule. Further, even if we were open to creating a time lapse exception to Evidence Code section 1237, we would not do so on the facts here. Alessio testified that the November 2008 incident was fresher in her mind when she spoke to DeBord on February 15 than at trial. Further, she testified what she told Officer DeBord was the truth. As such, we are satisfied sufficient foundation was laid for the statement. (See People v. Miller, supra, 46 Cal.App.4th at p. 422.)
We note federal courts have admitted statements made after even greater lapses of time under the federal counterpart to Evidence Code section 1237, Federal Rules of Evidence, rule 803(5). (United States v. Patterson (9th Cir. 1982) 678 F.2d 774, 778-779 [10 months]; United States v. Williams (6th Cir. 1978) 571 F.2d 344, 348-350 [six months]; United States v. Senak (7th Cir. 1975) 527 F.2d 129, 139-142 [three years].) These courts reason that district courts should have the flexibility to consider all pertinent circumstances in determining whether the matter was fresh in the witness's memory when the statement was made. (United States v. Patterson, supra, 678 F.2d at p. 779.) Our Supreme Court approved a similar approach under Evidence Code section 1237. (People v. Cowan (2010) 50 Cal.4th 401, 466 (Cowan).)
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Gallardo, however, argues Alessio's statement about the November 2008 incident as testified to by DeBord is unreliable because her trial testimony contradicted the statement, and she admitted she was angry at the time she made the statement. Gallardo's argument, however, does not go to the admissibility of the evidence, but instead, to its weight. The jury heard the differing testimony and, as the factfinder, was in the best position to determine which testimony was most credible. (See Cowan, supra, 50 Cal.4th at p. 468.)
On the record before us, we cannot say the court abused its discretion in allowing Robles and DeBord to testify about what Alessio told them. The proper foundation was laid.
Finally, Gallardo claims Alessio's statements to the police regarding Gallardo's threats were multiple hearsay and should not have been admitted. But, as Gallardo admits, the statements constituted the substantive crime charged, here, the criminal threats comprising count 2. The threats were not hearsay statements, but "operative facts." (See People v. Dell (1991) 232 Cal.App.3d 248, 259; People v. Patton (1976) 63 Cal.App.3d 211, 219.) Thus, these portions of the officers' testimony did not require any exception to the hearsay rule.
E. Sixth Amendment
Gallardo contends he was denied his Sixth Amendment rights to confront and cross-examine witnesses against him. He bases his argument on the contentions that the statements Alessio made to the police were improperly admitted and Alessio could not recall the substance of the out-of-court statements she made to the police. As we discuss above, the statements were properly admitted. Thus, their admission did not violate Gallardo's Sixth Amendment rights. (See Cowan, supra, 50 Cal.4th at pp. 467-468; Cummings, supra, 4 Cal.4th at p. 1292, fn. 32.) Moreover, a witness's inability to recall her out-of-court statements does not implicate the Sixth Amendment. (See United States v. Owens (1988) 484 U.S. 554, 558-559 (Owens).)
" 'The Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony.' [Citation.]" (Owens, supra, 4 Cal.4th at pp. 558- 559; see People v. Cudjo (1993) 6 Cal.4th 585, 622 ["[T]he right of confrontation . . . [citation] . . . does not protect against testimony that is ' "marred by forgetfulness, confusion, or evasion" ' [citations]."]; Cummings, supra, 4 Cal.4th at p. 1292, fn. 32 [applying the rationale in Owens to the Confrontation Clause in the California Constitution].)
In People v. Perez (2000) 82 Cal.App.4th 760 (Perez), the court concluded the defendant was not denied his right to cross-examination even though the witness was extremely evasive. At the defendants' trial for a gang-related drive-by murder, a witness to the murder who had previously identified the defendants as the shooter and driver answered "I don't remember" or "I don't recall" to virtually all questions asked of her about the incident. (Id. at p. 763.) The witness's prior statements to an officer describing the crime and identifying the defendants were admitted into evidence as prior inconsistent statements under Evidence Code section 1235. (Ibid.)
One of the defendants in Perez thus argued that the witness's claimed inability to remember the incident deprived him of his right to confront the witness. The court concluded the admission of the prior statements did not violate the Confrontation Clause. Rather," ' "[t]he Confrontation Clause guarantees only 'an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.(Perez, supra, 82 Cal.App.4th at p. 765, citing Owens, supra, 484 U.S. at p. 559 [italics added by the Owens court].) "When the declarant 'is present at trial and subject to unrestricted cross-examination,' 'the traditional protections of the oath, cross-examination, and the opportunity for the jury to observe the witness' demeanor satisfy the constitutional requirements.' [Citation.]" (Perez, supra, at pp. 765-766.)
The reasoning in Perez is applicable here. Alessio appeared at trial, testified, and was subject to unrestricted cross-examination. Indeed, Gallardo admits Alessio, under cross-examination at trial, contradicted her statement to DeBord about the November 2008 incident. The factfinder was able to observe Alessio's demeanor and determine her credibility while she testified. (Perez, supra, 82 Cal.App.4th at pp. 765-766.) Her inability to recall what she told the police did not deny Gallardo his opportunity for effective cross-examination.
II
THE COURT DID NOT ABUSE ITS DISCRETION
IN REFUSING TO GRANT A CONTINUANCE
Gallardo argues the court abused its discretion when it refused to grant him a continuance to obtain information from certain dependency court records. We disagree.
A. Background
Gallardo's trial counsel moved for a continuance after the Evidence Code section 402 hearing in which Alessio testified that she did not remember much of anything. Gallardo's counsel asserted the continuance was necessary to allow him to obtain records, under Welfare and Institutions Code section 827, from juvenile dependency hearings, involving Alessio's children. He stated the juvenile dependency hearings might contain Alessio's statements and there could be inconsistencies between what she told protective service workers and the police, specifically about domestic violence between Gallardo and Alessio. Gallardo's counsel also noted another potential witness (John Webb) in the case might be mentioned in the juvenile dependency file.
The People opposed the continuance, arguing they were ready for trial, had subpoenaed all witnesses, Alessio was a flight risk, and Gallardo had previously complained he was not receiving a speedy trial. The court denied the request for a continuance, noting the parties were in the second day of trial (although a jury had not been selected yet) and most of the issues Gallardo's counsel discussed were already "on the table" and known to the defense.
B. Analysis
"A motion for continuance should be granted only on a showing of good cause. [Citation.]" (People v. Seaton (2001) 26 Cal.4th 598, 660.) Where a continuance was requested during trial, as it was here, the moving party must show "he exercised due diligence in preparing for trial." (People v. Danielson (1992) 3 Cal.4th 691, 705; overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) We review a ruling denying a motion for continuance under an abuse of discretion standard. (People v. Lewis (2006) 39 Cal.4th 970, 1036; People v. Wilson (2005) 36 Cal.4th 309, 352.) We conclude Gallardo failed to show he exercised due diligence in attempting to obtain records of the juvenile dependency proceedings involving Alessio. As such, the court did not abuse its discretion in denying the motion for continuance.
Gallardo's trial counsel stated he needed the continuance because he had not had sufficient time to obtain the records because he had only recently been assigned the case. The record, however, does not indicate when he was actually retained. Therefore, we do not know how long Gallardo's trial counsel had to prepare for trial.
In addition, there is nothing in the record showing Gallardo's trial counsel made any attempt to obtain the juvenile dependency records. Gallardo was not a party to the juvenile court proceeding. Therefore, he would have been required to petition the juvenile court for an order to obtain the records. (See Welf. & Inst. Code, § 827, subd. (a)(3)(A).) This is not a streamlined process as interested parties are permitted the opportunity to object. (Ibid.) Despite this somewhat lengthy process, there is no indication in the record that Gallardo's trial counsel ever initiated it. In other words, there is no proof of any due diligence in the record.
Gallardo attempts to justify his trial counsel's lack of diligence by claiming his trial counsel only became aware that he would need the records after he heard Alessio's testimony at the Evidence Code section 402 hearing. Gallardo's argument, however, is undermined by his purported reasons for needing the records.
For example, Gallardo argues he needed the juvenile dependency records because they might contain statements contradicting what Alessio told the police. Alessio's statements to the police were contained in police reports. He was aware of these reports prior to the Evidence Code section 402 hearing; thus, he would have known that he supposedly needed the records prior to the hearing. Gallardo also asserts he needed the records because they may contain information about domestic violence between Alessio and him. Again, this possible relevance of the records is not dependent on Alessio's lack of recall at the Evidence Code section 402 hearing.
Finally, Gallardo argues the juvenile dependency records were needed to impeach Alessio at trial and perhaps Webb, the father of one of Alessio's children and possible witness. We are not persuaded. Gallardo fails to explain how the records could impeach Alessio at trial when her testimony largely consisted of her not remembering the events in question or what she told the police. Further, Webb did not testify at the Evidence Code section 402 hearing; thus, Gallardo's belief he needed the records to impeach Webb could not have arisen from that hearing.
In short, there is no record of Gallardo's due diligence in trying to obtain the records. Moreover, Gallardo's claim that he only became aware he needed the records after hearing Alessio's testimony at the Evidence Code section 402 hearing rings hollow. None of the reasons Gallardo offers relate to Alessio's lack of recall as displayed at the Evidence Code section 402 hearing. There simply is no explanation for Gallardo's lack of diligence in obtaining the juvenile dependency records. The court did not abuse its discretion in denying the motion for a continuance.
C. Ineffective Assistance of Counsel
In the alternative, Gallardo insists his trial counsel was ineffective under the Sixth Amendment because he did not obtain the juvenile dependency records. We disagree.
To show that trial counsel's performance was constitutionally defective, an appellant must prove: (1) counsel's performance fell below the standard of reasonableness, and (2) the "deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Competency is presumed unless the record affirmatively excludes a rational basis for trial counsel's choice. (People v. Ray (1996) 13 Cal.4th 313, 349; People v. Musselwhite (1998) 17 Cal.4th 1216, 1260.)
Here, the record does not provide us with any information from which we could determine whether Gallardo has met his burden to show ineffective assistance of counsel. All we know from this record is that Gallardo's trial counsel did not obtain the juvenile dependency records for use at trial. He did not subsequently obtain the records and move for a new trial based upon the records' contents (as we would expect him to do if the records were necessary for the defense). The records are not before us, and we have no means to tell what impact, if any, the records would have had at trial.
An appellate court generally cannot fairly evaluate counsel's performance at trial based on a silent record. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) In many instances, like here, evaluation of a claim of ineffective assistance of counsel will have to await a petition for writ of habeas corpus, should the defendant believe there is a viable claim that can be pursued. (Ibid.) Accordingly, we conclude that Gallardo's claim of ineffective counsel is without merit.
III
GALLARDO'S CLAIM OF CUMULATIVE ERROR IS WITHOUT MERIT
Gallardo contends the cumulative effect of the asserted errors rendered the trial so unfair as to violate his federal and state constitutional rights to due process warranting reversal of the judgment. Because we hold no errors exist, this cumulative error argument necessarily fails. (People v. McWhorter (2009) 47 Cal.4th 318, 377 [no cumulative effect of errors when no error]; People v. Butler (2009) 46 Cal.4th 847, 885 [rejecting cumulative effect claim when court found "no substantial error in any respect"].)
IV
THE COURT DID NOT ABUSE ITS DISCRETION IN REFUSING
TO REDUCE GALLARDO'S FELONY TO A MISDEMEANOR OR
REFUSING TO STRIKE HIS PRISON PRIORS
Gallardo's final contention is the court abused its discretion when it denied his requests to: (1) reduce his "wobbler" offense of making a criminal threat (§ 422) to a misdemeanor under section 17, subdivision (b); and (2) dismiss one or more of his prison priors in the interest of justice under section 1385, subdivision (a). We disagree.
Trial courts have broad authority in ruling on a motion to reduce a conviction to a misdemeanor. (People v. Hawkins ( 2002) 98 Cal.App.4th 1428, 1457.) Factors relevant to a trial court's discretion include " 'the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial,' " and when appropriate, the general objectives of sentencing. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.) In determining whether to impose a felony or misdemeanor sentence, the court considers both the defendant's potential for rehabilitation and the community's need for protection. (Id. at pp. 981-982 [any exercise of the authority is "an intensely fact-bound inquiry taking all relevant factors, including the defendant's criminal past and public safety, into due consideration"].) " 'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary' " and " '[i]n 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.]" (Id. at pp. 977-978.)
Gallardo argues the court did not consider the general objectives of sentencing under California Rules of Court, rule 4.410 when it sentenced Gallardo. The record does not support Gallardo's contention. While Gallardo repeats the same arguments he made to the court during sentencing, he does not explain how these arguments show the court's denial was irrational or arbitrary. Essentially, he asks us to substitute our judgment for the sentencing court. This we cannot do. (People v. Preyer (1985) 164 Cal.App.3d 568, 573 [" 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' [Citations.]"].)
Gallardo also contends the court abused its discretion because it based its decision on its mistaken belief that the threat was accompanied by violence, specifically the throwing of a bike through a window. Gallardo notes the criminal threat was made in February 2009, but he broke the window a few months later. Again, the record does not support Gallardo's position. The court does reference the throwing of the bike through the window, but does so to describe all the events leading to the charges and the conviction of Gallardo. We do not conclude the court based its sentencing decision on the mistaken belief that the criminal threat and the throwing of the bike through the window occurred on the same day.
More importantly, Gallardo's argument overlooks his dismal criminal history. He had previously been granted summary probation 13 times. He repeatedly failed to perform satisfactorily on probation and parole and had served three prior prison terms. The probation report indicated Gallardo would be a high risk for future assaults. Further, some of the conduct that lead to the current charges against Gallardo resulted from his violation of restraining orders. Simply put, there is nothing in the record that indicates the court's refusal to reduce Gallardo's wobbler to a misdemeanor was an abuse of discretion.
In addition, Gallardo relies on the same arguments to support his contention the court abused its discretion in refusing to strike his prison priors. For the same reasons we discuss above, we conclude the court did not abuse its discretion as Gallardo urges. The interest of justice would not be served by striking any of Gallardo's prison priors. (See People v. Orabuena (2004) 116 Cal.App.4th 84, 97.)
DISPOSITION
The judgment is affirmed.
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HUFFMAN, J.
WE CONCUR:
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McCONNELL, P. J.
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O'ROURKE, J.