Filed 5/1/13 P. v. Diego CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. ROBERTO J. DIEGO, Defendant and Appellant. D062416

(Super. Ct. No. SCD233798)

APPEAL from a judgment of the Superi or Court of San Dieg o County, Jeffrey F. Fraser, Judge. Affirmed.

A jury convicted Roberto J. Diego of a ssault with a deadly weapon (Pen. Code, 1 § 245, subd. (a)(1)) and found that Diego inflic ted great bodily injury within the meaning of section 12022.7, subdivision (a) and did so to promote, further and assist in criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1).

1 All further statutory references are to the Penal Code unless otherwise specified.2 The trial court found the alleged prison prio r (§ 667.5, subd. (b)) to be not true but found true allegations that Diego had suffere d a serious felony prior conviction (§ 667, subd. (a)(1)) and a strike prio r (§ 667, subds. (b)-(i)). At the time of sentencing the trial court struck the "strike" prior and the gang enhancement. The court then denied probation and selected the lower term of two years for the offense. The court then imposed th ree years consecutively for the great bodily injury enhancement and five years consecutiv ely for the serious fe lony prior conviction for a determinate term of 10 years in prison. Diego appeals challenging only the senten ce imposed for the offense. He argues the case must be remanded fo r resentencing because the tr ial court did not understand it had discretion to strike the great bodily in jury enhancement. We find the argument wholly without merit and affirm.
STATEMENT OF FACTS Since Diego does not challenge the admissi bility or sufficiency of the evidence to support his conviction we will not set forth a discussion of the f acts of the offense. It is sufficient to note that Diego engaged in an unprovoked attack on the victim in which Diego struck the victim in the head and arm with a hockey stick. The victim suffered a broken wrist and his scalp and ear were cut requiring staple s and stitches to close.
DISCUSSION At the time of sentencing the probation officer recommended a term of 24 years in prison. The prosecutor had offe red a seven-year term before trial and thus urged the trial court to impose an 11-year term . For whatever reason, the trial court expressed the view3 the defendant was a "good guy" and wish ed he could send the defendant home. Nevertheless, the court observed probatio n was not an option, but that 24 years was too long a term. The court said it was going to impose the minimum term it could and then imposed the 10-year term as we have noted above. Somewhat like the theory that no good deed goes unpuni shed, Diego has seized on the court's comments and notes the court could have further reduced the term by striking the great bodily injury enhancement. From that premise, counsel argues the court must not have understood the scope of its discretionary author ity. Our response to the argument is summed up by the term "nonsense." At the sentencing hearing the trial judge said, in part: "So based on those comments I am going to strike the strike. Probation is not an option. So that 's just not an option for you. And I don't -- the prison term that I'm about ready to give you is one that I don't relish because, like I said, I wish I could send you home to your family, but by law I can't do th at. [¶] Weighing the mitigating and aggravating factors in this matter, I'm going to choose the low term of two years. And the reason for that is he will be punished on the GBI and also the nickel prior. And the fact that he used the hockey stick, making it a deadly w eapon, that also has come into play. But I think, weighing all of the factors mitigat ed -- the most egregious thing is the injury. And he's going to be separately punished for that. So I choose the low term of two years. Consecutive to that on the great bo dily injury, the 12022.7, will be three years. I've stricken the strike . [¶] As for the gang allegation, unfortunately for you, it adds 10 y ears. But by law I am allowed to impose the gang allegation but stri ke the punishment. And I have elected to strike the 10-year enha ncement on that, though you'll still be classified as a gang member. There's nothing you can do about that. But at least I don't think, pa rticularly in this case, that the Legislature intended the 10-year enhanc ement to be used in this type of case. So I'm going to strike th at. I have no discretion over the five-year nickel prior. That must be imposed as a matter of law4 consecutively. So that will be imposed. Total prison term, 10 years." A. Standard of Review We review sentencing decisions of the trial court under the abuse of discretion standard. Under that standard we will not se t aside a trial court decision unless the record clearly demonstrates the abuse of that discretion. ( People v. Williams (1998) 17 Cal.4th 148, 162.) Our review of discreti onary sentencing decisions proceeds from the assumption the trial court made a proper de cision, unless the appellant affirmatively demonstrates the trial court was in error. (People v. Tang (1997) 54 Cal.App.4th 669, 677.) We will not remand a case for resenten cing unless it is reasona bly probable that a more favorable sentence would be imposed on remand. ( People v. Osband (1996) 13 Cal.4th 622, 728.) B. Analysis We begin our analysis in this case with the observation we have no quarrel with the trial court's efforts to provide some mitigation of the punishment required for the offense. Nor do we take issue with the cour t's view the defendant is a "good guy." We only comment to note that other trial judges coul d have viewed this case differently. This was an unprovoked assault by a gang member using a hockey stick. Diego in fact inflicted substantial injury on the victim. While the cour t found Diego was drunk and remorseful, Diego declined to discuss the offense with the pr obation officer and said he was not drunk at the time. He previously to ld police he was not i nvolved in the offense and denied gang membership. Diego had been in prison be fore and had at least two5 parole violations. In short, reasonable minds could well have differed on the sentence in this case. Here the trial judge did desire to mitigat e the sentence, but not in an irresponsible fashion. The court struck the strike prior and the gang enhancement, thus drastically reducing the potential sentence. The court di d, however, note the injuries made the case more "egregious." It noted Di ego would be separately punish ed for the inju ries, but then used that as a factor to justify selecting the lower term for the offense. In our view, there is not even a hint that the trial judge was unaware of his discretion to strike the great bodily injury enhancement. Rather, it is clear the judge desired to punish "separately" for those injuries, but even then , used that decision to redu ce Diego's total punishment by selecting the two-year lower te rm rather than the four-year middle term. We are satisfied that no abuse of discretion is demonstrated by this record.
DISPOSITION The judgment is affirmed.

HUFFMAN, Acting P. J.
WE CONCUR:

NARES, J.

McDONALD, J.