Filed 7/24/14 P. v. Gastelum CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JOHN MICHAEL GASTELUM, Defendant and Appellant. D063651

(Super. Ct. No. SCD244193)

APPEAL from a judgment of the Superi or Court of San Dieg o County, David M. Gill, Judge. Affirmed. Denise Rudasill, by appointment of th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.2 A jury convicted John Michael Gastelum of one count of felonious possession of metal knuckles (count 1: Pen. Code, 1 § 21810) and one count of misdemeanor resisting, delaying, or obstructing a police officer (count 2: § 148, subd. (a)(l)). Prior to trial, the court denied Gastelum's motion in limine to exclude evidence that police had found airsoft rifles
─ which Gastelum acknowledges "looked just like real rifles"
─ leaning against an inside wall of the gara ge where police found him hiding. After the People rested their case-in-ch ief, the court denied without prejudice Gastelum's motion to reduce the possession-of-m etal-knuckles charge from a felony to a misdemeanor under subdivision (b ) of section 17 (hereafter § 17(b)). Also, Gastelum admitted an allegation he had suffered a prior strike within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, 6 68) as a result of a 2006 juvenile court adjudication that he had committed an assault with a deadly weapon (§ 245, subd. (a)(1), 1192.7, subd. (c)(23)). During the sentencing hearing, the court denied Gastelum's motion under section 17(b) to reduce his possession-of-metal- knuckles conviction from a felony to a misdemeanor. However, the court granted Gastel um's motion to strike his prior strike. The court then sentenced him to the middle st ate prison term of two years for his count 1 conviction and to time served fo r his count 2 conviction of mi sdemeanor resisting arrest. Gastelum raises three conten tions on appeal. First, he contends his convictions of should be reversed because the court prejudic ially abused its discre tion and violated his

1 All further statutory references are to the Penal Code unless otherwise specified.3 federal constitutional right to due process by admitting evidence that police found airsoft rifles
─ which they initially believed were real rifles
─ in the garage wher e they found him hiding. Second, Gastelum alternatively co ntends the court abused its discretion by denying his motion under section 17(b) to reduce his possession-of-metal-knuckles conviction from a felony to a misdemeanor. La st, he contends the court erred by failing to grant him probation because "an analysis of the criteri a affecting probation under [California Rules of Court 2 ] rule 4.414 supported a grant of probation." We reject these contentions and affirm the judgment.
FACTUAL BACKGROUND
A. The People's Case Gastelum's girlfriend, Kufanya Appling, testified that in late October 2012 Gastelum was spending two or three nights a week with her at her home in San Diego. Gastelum and Appling shared a be droom there. He kept his clothing on the left side of the bedroom closet, and she kept hers on the right side. Appling did Gastelum's laundry and hung his clothes in the closet. On October 30, 2012, at around 6:15 p.m., Sergeant Tina Williams, Officers Michael De Witt, Errick Barnes and Bart Lane, other unnamed officers, and Detective Jesse Zaldivar, all of whom were employed by the San Diego Police Department, arrived at Appling's residence to conduct a lawful s earch. Detective Zaldivar testified that, as they were driving up to the residence, he "heard a female talki ng on the phone saying,

2 All further rule references are to the California Rules of Court.4 '[t]he police are coming.'" Immediately thereaft er, several individuals left the residence. The officers secured the perimeter of the resi dence by surrounding bo th the home and the detached garage. Sergeant Williams testified that one of th e officers in the back yard said he had heard noises coming from the garage. After conducting a security sweep of the house, the officers focused on the ga rage where they th ought somebody was hiding inside. The officers announced their presen ce several times and instructed anyone inside the garage to come out. Sergeant Williams testified the interior of th e garage was da rk and "very cluttered," and the officers were able to see " only a couple feet" into the garage with the lighting from the house. Some areas of the ga rage were filled with crates, cartons, and bags stacked five feet high. As the officers again announced their pr esence, Sergeant Williams looked into the right side of the garage door and observed ri fles leaning back against the interior of the garage. Sergeant Williams directed another offi cer to reach inside and pull the rifles out. At that point, the officers discovered the ri fles were airsoft rifles, which use plastic pellets as ammunition. Sergea nt Williams testified, however, that when she saw the rifles in the garage, she feared that there were ot her weapons in the garage and that whoever was hiding inside might be armed. After the officers unsuccessf ully attempted to use a mi rrored pole to locate the person hiding in the garage, the officers deployed pepper spra y into the garage through a vent. However, given the size of the garage , Sergeant Williams soon realized the pepper spray would not have any effect on the person hiding inside of the garage. The officers5 then used a pepper ball gun, which is simila r to a paintball gun, to deploy two pepper balls into two corners of the garage to try to get the person hiding insi de of the garage to come out. The officers continued to announce their presence and order the person inside the garage to come out. The pepper spray produced no results, so the officers had to physically enter the garage. When Officer DeWitt entered the garage , he felt the effects of the pepper spray. He was coughing and his eyes were watery. O fficer Barnes also felt the effects of the
pepper spray. Sergeant Williams also testified she fo und Gastelum hiding underneath a large plastic five-gallon crate lid. She stated that Gastelum resisted the o fficers' efforts to place him in handcuffs by "trying to pull away and shift and drop his body weight." Officer DeWitt testified that as he be gan to pat Gastelum down for weapons, Gastelum, who had been handcuffed, "immedi ately stood to his feet" and "[k]ind of stomped his feet." Gastelum attempted to pull his shoulder away from Officer DeWitt and began "thrashing his body." During the patdown, Gastel um continued this behavior and angrily said, "Man, fuck you guys." As Gastelum was being escorted out of the garage, he continued to pull his shoulders aw ay from Officer DeWitt's grip, stomped his feet, and pulled his body in different direc tions. Gastelum eventu ally submitted to the officers and said, "Okay. Officers, I'm sorry. I'm done." Gastelum 's demeanor changed and he became cooperative. Detective Zaldivar testified he spoke w ith Appling when he entered her residence that evening. After informi ng him that she and Gastelum liv ed together there, Appling6 pointed to the bedroom and referred to it as "our bedroom." Sh e admitted some of Gastelum's belongings were st ored in their bedroom. Detective Zaldivar asked Officer Lane to search the bedroom closet. Officer Lane testified he found black metal knuckles inside th e back pocket of a blue pair of shorts he found hanging in the left side of the cl oset where men's clothing was stored. Appling testified she rememb ered hanging those blue shor ts in the closet, that the shorts belonged to Gastelum , and she previously had seen him wearing them. Detective Zaldivar testified Gastelum's cellular phone and identification card were found in the dining room. A photo foun d on Gastelum's cellular phone showed him wearing a jacket with a white and blue collar and white sleeves. This same jacket was found inside of the bedroom closet th at Gastelum shared with Appling.
B. The Defense The defense rested without presenting any witnesses.
DISCUSSION
I. ADMISSION OF THE AIRSOFT RIFLE EVIDENCE Gastelum first contends his convictions should be reversed because the court prejudicially abused its disc retion and violated his federa l constitutional right to due process by admitting evidence th at police found airsoft rifles
─ which they initially believed were real rifles
─ in the garage where they found Ga stelum hiding. In support of this contention, Gastelum asserts this evid ence was "completely i rrelevant" and should have been excluded under Ev idence Code section 352 because it was "more prejudicial7 than probative." We reject Gastelum's c ontention because he has failed to demonstrate the claimed evidentiary error was prejudicial or rendered his trial fundamentally unfair.
A. Background
1. Gastelum's in limine motion Gastelum brought an in limine motion to exclude evidence of guns (the airsoft rifles), ammunition magazines, ammunition, a nd gas masks that were found in the garage where police had found him hiding. Gastelum argued this evidence should be excluded under Evidence Code section 352 because the evidence was irrelevant, it "could confuse the actual issue of what he is alleged to ha ve possessed," and it was more prejudicial than probative. During the hearing on the motion, the pros ecution informed the court it intended to introduce this evidence in or der to explain the officers' reaction to finding this evidence, which included their deployment of pepper spray into the garage. The prosecution also argued this evidence was releva nt to show consciousness of guilt because even after the officers repeatedly warned Gastelum
─ following their discovery of the rifles
─ that pepper spray would be deployed, he ch ose to stay in the garage.

a. Ruling The court denied Gastelum's in limi ne motion, finding that the challenged evidence had "significant proba tive value in terms of cons ciousness of guilt in count 1 [(possession of metal knuckles)]," the introducti on of this evidence would not "confuse or mislead the jury," and the evidence was not un duly prejudicial.8 After issuing its ruling, the court noted th at there had been a lot of media coverage regarding the use of pepper spray by law enforcement and that the issue of whether police were using pepper spray unnecessarily was "a topic of some interest to the public at large." The court indicated that, in light of the media attention to this issue, the jury should "know the contex t" in which the police used pepper spray in this case. The court mentioned that the defense coul d argue that Gastelum was not actually resisting arrest, as charged in count 2, but rather he was merely reacting to the pepper spray.
2. Stipulation at trial Outside the presence of the jury, after Sergeant Williams and Officer DeWitt testified, the prosecutor requested with respect to the count 2 resisting-arrest charge that the defense "stipulate to the fact that these officers were in lawful performance" of their duties. Defense counsel did not oppose the request. The parties drafted and presented to the court the following stipulation: "Both the People and the defense stipulate that the Sa n Diego Police Department executed a lawful search of Mr. Gastelum and a lawful search of the residence . . . on October 30th, 2012. [¶] Both parties further stipulate that all law enforcement personnel on scene that day carried out their duties in a lawful manner." The court thereafter read the stipulation to the jury. The court explained to the jury that it should not focus on or wonder about whethe r law enforcement was lawfully present at the residence or whether the search was lawful. The court also explained that "[i]t was a lawful search of Mr. Gastelum and the premises , and all the law enforcement9 personnel there on the scene at that time carried out their duties in a lawful manner." The court instructed the jury to accept those facts.
B. Applicable Legal Principles
1. Evidence Code sections 350 and 210 Evidence Code section 350 provides that only relevant evidence is admissible. Evidence Code section 210 defines relevant ev idence as "evidence, including evidence relevant to the credibility of a witness or hearsay declarant, ha ving any tendency in reason to prove or dispr ove any disputed fact that is of consequence to the determination of the action."
2. Evidence Code section 352 "When an objection to evidence is ra ised under Evidence Code section 352,[ 3 ] the trial court is required to weigh the eviden ce's probative value ag ainst the dangers of prejudice, confusion, and undue time consum ption. Unless these dangers 'substantially outweigh' probative value, the obj ection must be overruled." ( People v. Cudjo (1993) 6 Cal.4th 585, 609.) Thus, evidence is prope rly excluded under Eviden ce Code section 352 "if its probative value is substantially outwe ighed by the probability that its admission will . . . necessitate undue consumption of tim e or . . . create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352; Cudjo , at p. 609.)

3 Evidence Code section 352 provides: "T he court in its discretion may exclude evidence if its probative value is substantia lly outweighed by the probability that its admission will (a) necessitate undue consumptio n of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."10 The California Supreme Court has explaine d that "[t]he prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[All] evidence which tends to prove guilt is prejudici al or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the de fendant as an individual and which has very little effect on the issues . In applying [Evidence Code] section 352, "prejudicial" is not synonymous with "damaging." ' " ( People v. Karis (1988) 46 Cal.3d 612, 638, italics added.)
3. Due process "[T]he admission of evidence, even if e rroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair." ( People v. Partida (2005) 37 Cal.4th 428, 439, italics omitted; see People v. Benavides (2005) 35 Cal.4th 69, 91 ["[G]enerally, violations of state evidentiary rules do not rise to the level of federal constitutional error."].)
4. Standard of review "A trial court has broad discretion in determining the relevance of evidence [citations] but lacks discretion to admit irrelevant evidence." ( People v. Carter (2005) 36 Cal.4th 1114, 1166-1167.) We review "for abuse of discretion a decision on admissibility that turns on the relevan ce of the evidence in question." ( People v. Waidla (2000) 22 Cal.4th 690, 717.) We also revi ew the trial court's rulings under Evidence11 Code section 352 for an abuse of discretion. ( People v. Lewis (2001) 25 Cal.4th 610, 637.) Under the abuse-of-discretion standard of review, a trial court's exercise of discretion in admitting or excl uding evidence will not be disturbed and reversal of the judgment is not required "excep t on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a ma nifest miscarriage of justice." ( People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) Error in the admission or exclusion of evid ence following an exercise of discretion
under Evidence Code section 352 is tested for prejudice under the Watson 4 harmless error test. (See People v. Alcala (1992) 4 Cal.4th 742, 790-791.) Under the Watson test, the trial court's judgment may be overturned only if "it is reasonably probable that a result more favorable to the [defendant] would have been reached in the ab sence of the error." ( Watson, supra, 46 Cal.2d at p. 836.)
C. Analysis In support of his claim the court erre d by admitting evidence that the police found airsoft rifles in the garage where they fo und him hiding, Gastelum first asserts the evidence was not relevant to any issue in dispute in this case. Gastelum cites People v.
Lucero (1998) 64 Cal.App.4t h 1107 for the proposition that "[e]vidence that goes to the issue of reasonableness of the officers' con duct or the lawfulness of the arrest is not admissible if the legality of the arrest is not an issue in the case because under those

4 People v. Watson (1956) 46 Cal.2d 818.12 circumstances the evidence is irrelevant." Here, he argues, "the reasonableness or lawfulness of the officers' conduct in arres ting [him] was not an i ssue the jury had to decide" because he stipulated that they were lawf ully pursuing thei r duties when they arrested him and when they s earched the residence where they found him. Gastelum also asserts the court should have excluded the airsoft rifle ev idence under Evidence Code section 352 because the eviden ce was "highly prejudicial as it likely led the jury to believe [he] was the type of person who po ssessed dangerous weapons in general, and to possibly speculate that he may have possessed th e [airsoft rifles] for a nefarious purpose." Thus, he maintains, the evid ence was "inadmissible as it was more prejudicial than probative." Assuming without deciding that the court erred by admitting the airsoft rifle evidence, we conclude Gastelum 's claim of evidentiary erro r is unavailing because he has failed to demonstrate any such error was prej udicial or rendered his trial fundamentally unfair. Gastelum contends that admission of this evidence was prejudicial because there is a reasonable chance he would have obtained a better result at trial if that evidence had been excluded. Specifi cally, he asserts "[t]his is becaus e the evidence of [his] guilt was not overwhelming and . . . this improperly admitted evidence lik ely led the jury to convict [him] of the possession of metal knuckles because it believed he likely possessed that weapon because he had other weapons." Th ese contentions are unavailing because the evidence of Gastelum's guilt as to both counts is strong and he has failed to demonstrate it is reasonably probable he would have obtain ed a more favorable result at trial in the absence of the assume d evidentiary error.13 1. Count 1 Regarding count 1, the reco rd shows the court properly instructed the jury under CALCRIM No. 2500 that in order to prove Gastelum was guilty of possession of metal knuckles in violation of sec tion 21810, the People were required to prove that (1) he possessed the metal knuckles, (2) he knew he possessed the metal knuckles, and (3) he knew "the object was metal knuckles, a weapon that may be used for the purposes of offense or defense." The court also properly instructed the jury that the People were not required to prove that Gastelum intended to use the metal knuckles as a weapon or that he carried the metal knuckles on his person. It fu rther instructed the jury that possession of the metal knuckles could be constructive an d that "[t]wo or more people may possess something at the same time." Here, the evidence st rongly supports the jury's findi ng that the prosecution met its burden of proving all three elements of count 1. Regarding the first two elements of count 1 (possession and knowledge of possession), the testimony of Gastelum's girlfriend, Appling
─ who reluctantly testified un der a grant of use immunity
─ established that Gastelum spent the night with her two or three times a week at her home where the police found him hiding in the garage, and he shared the be droom and the bedroom closet with her. Appling testified that Gastelum ke pt his clothing on the left side of the bedroom closet, and she kept hers on the right side. She also testified that she did his laundry and hung his clothes in the closet. Officer Lane testified he found the metal knuckles inside the back pocket of a blue pair of shorts he found hang ing on the left side of the closet the men's clothing was14 stored. Appling testified she remembered hangi ng those blue shorts in the closet and she previously had seen him wearing those shorts. Appling's testimony was corroborated by De tective Zaldivar, who testified that Appling informed him that she and Gastelum liv ed together in her ho me, they shared the bedroom, and he kept some of his belongings in the bedroom. Detective Zaldivar also testified that Gastelum's cellular phone and identification card were found in the dining room during a lawful search of the home, 5 and a photo found on Gastelum's cellular phone showed him wearing a j acket with a white and blue collar and white sleeves. Detective Zaldivar stated that this same jacket was found in side the bedroom closet that Gastelum shared with Appling. The foregoing evidence strongly supports the jury's finding that Gastelum knowingly possessed the metal knuckles that Offi cer Lane found in Gastelum's shorts in the closet. The evidence also supports the jury's findi ng that the prosecution met its burden of proving the third element of count 1. Dete ctive Zaldivar testif ied the metal knuckles were painted black and had "four round openings near the top," and "[b]elow that . . . [was] a flattened little bar at the botto m." Detective Zaldivar testified that metal

5 In the People's trial brief, the prosecutor asserted that the search of Gastelum's residence was a "lawful parole search" cond ucted "pursuant to a valid 4th Amendment waiver." During pretrial proceedings, the court found there were no "Fourth Amendment issues" because the search of th e home was a "lawful parole sear ch." At trial, as already noted, the court read to the jury the parties' stipulation that the search was lawful and all law enforcement personnel carried out their duties in a lawful manner.15 knuckles like the ones found in Gastelum's s horts are used "as a weapon" to strike or hit

someone. All of the foregoing eviden ce strongly supports the jury 's findings that Gastelum constructively possessed the metal knuckles at the time of his arrest, he knew he possessed the metal knuckles, and he knew th ey were a weapon. Thus, we conclude Gastelum has failed to demonstrate a r easonable probability the jury would have acquitted him of count 1 if the court ha d excluded the airs oft rifle evidence.
2. Count 2 The evidence also strongly supports Gastel um's conviction of count 2. The record shows the court properly instru cted the jury under CALCRIM No. 2656 that in order to prove Gastelum was guilty of resisting a peace officer in violation of section 148(a), the People were required to prove that (1) the pol ice officers in this case were lawfully performing or attempting to perfo rm their duties as peace offi cers; (2) Gastelum willfully resisted, obstructed, or delayed the officers in the performance or attempted performance of those duties; and (3) when he acted, Ga stelum knew or reasonably should have known the officers were peace officers performing or attempting to perform their duties. Here, the evidence st rongly supports the jury's findi ng that the prosecution met its burden of proving all three elements of count 2. Regarding the firs t element, as noted,

ante , the parties stipulated that "all law enforc ement personnel on scene that day carried out their duties in a lawful manner." Regarding the second element, the pros ecution presented evid ence showing that when the officers found Gastelum hiding inside of the garage, he resisted the officers'16 efforts to place him in handcuffs . Specifically, Sergeant Willia ms testified that Gastelum resisted the officers' efforts to place him in handcuffs by "trying to pull away and shift and drop his body we ight." Officer DeWitt testified th at as he began to pat Gastelum down for weapons, Gastelum, who had been handcuffed, attempted to pull his shoulder away from him "thrashing his body." Officer DeWitt also testified that Gastelum continued to pull his shoulder s away from his grip, stomped his feet, and pulled his body in different directions as he was being escorted out of the garage. Regarding the third element, the pros ecution presented strong circumstantial evidence that Gastelum knew or should have known the offi cers were peace officers by presenting testimony that the officers repeated ly announced their pr esence as such when they were ordering him to come out of the garage. Furthermore, as noted, Gastelum stipulated that the officers were there to perform their duties. In light of the strong foregoing evidence supporting Gastelum's conviction of counts 1 and 2, we conclude he has faile d to meet his burden of showing he was prejudiced by the introduction of the airsoft ri fle evidence. His contention that the court violated his federal constitutional right to due process by admitting this evidence, is unavailing. ( People v. Benavides , supra , 35 Cal.4th at p. 91 ["[G ]enerally, violations of state evidentiary rules do not rise to th e level of federal constitutional error."].)17 II. DENIAL OF GASTELUM'S MOTION TO REDUCE HIS COUNT 1 CONVICTION FROM A FELONY TO A MISDEMEANOR Gastelum alternatively contends the co urt abused its discretion by denying his motion under section 17(b) to reduce his count 1 possession-of-metal-knuckles conviction from a felony to a misdemea nor. We reject this contention.
A. Background Before the jury retu rned its verdicts, as already no ted, Gastelum brought a motion under section 17(b) to reduce the possession-of-metal-knuckles charge from a felony to a misdemeanor. Defense counsel a sserted that "the conduct in this case is possession of brass knuckles, which in the scheme of weapons is . . . low on the chain. [T]his is not a knife. It's not a gun. It's not a baseball bat or anything like that. Although it is a weapon and it can be used to cause injuries, it's none of those." Counsel also asserted that the metal knuckles "were not found on this person ." The prosecutor argued that "[w]hen you look at the facts of this case, you . . . have a young man who is hiding from police, . . . resisting arrest, cursing, . . . flaili ng around . . . , forcing officers to resort to pepper spray after initial a ttempts to get him to be compliant with the Fourth [Amendment] waiver for [his California Youth Authority] status." The court denied the motion without prejudice to its renewal at sentencing. Following his conviction of count 1, Ga stelum renewed his section 17(b) motion at his sentencing hearing. Defense counsel asserted that "brass knuckles on the scale of dangerous weapons are pretty low." He also asserted that the metal knuckles "were not on his person. These were far away, separate from him, lost in a pair of shorts and18 weren't in any danger of being used." The court replied that Gastelum "was found in the garage because somebody said the police are coming. And rather than run out like the others did, he chose to hide himself in the garage." The court added, "That doesn't mean they weren't in his immediate pr esence at some other time." Following additional argumen ts by the parties, the court denied Gastelum's motion, stating that Gastelum may at some point become eligible for a reduction of his felony conviction to a misdemea nor, but that he first would have to earn that right by turning his life around.
B. Applicable Legal Principles
In People v. Sy (2014) 223 Cal.App.4th 44, this c ourt recently explained that trial courts have "broad discretion under secti on 17[(b)] in deciding whether to reduce a wobbler[ 6 ] offense to a misdemeanor." ( Sy at p. 66, citing Alvarez , supra , 14 Cal.4th at p. 977.) We also explained that a trial c ourt's decision to grant or deny a section 17(b) motion will not be disturbed on appeal "unl ess the party attacking the decision clearly shows the decision was irrational or arbitrary." ( Sy , supra , 223 Cal.App.4th at p. 66.) "Absent such a showing, we presume the c ourt acted to achieve legitimate sentencing objectives." ( Ibid .)

6 A "wobbler" offense is a crime that, in the trial court's discretion, may be sentenced as either a felo ny or a misdemeanor. ( People v. Superior Court (

Alvarez ) (1997) 14 Cal.4th 968, 974 ( Alvarez ).)19 C. Analysis A violation of section 21810 is a wobb ler offense in that the trial court has discretion to deem it to be a misdemeanor or a felony for purposes of sentencing. (See § 21810; see Alvarez , supra , 14 Cal.4th at p. 974.) Here, during sentencing the court declined to designate Gastel um's count 1 section 21810 offense as a misdemeanor, stating: "I don't know how convinced I am that [Gastelum] has really removed himself or divorced himself from the gang lifestyle, the gang culture." 7 We are satisfied the court properly exer cised its sentencing authority under section 17(b). The court was aware of its discretionary authority and stated a valid reason for its decision to treat Gastelum's current possession- of-metal-knuckles offe nse as a felony for purposes of sentencing. The record does not demonstrate any abuse of discretion.
III. DENIAL OF PROBATION Last, Gastelum contends the court erre d by failing to grant him probation because "an analysis of the criteria affecting probation under rule 4.414 supported a grant of probation." We also reject this contention.
A. Background During the sentencing proceeding, the cour t noted it had read and considered the probation report, which stated that Gastelum
─

who was then 24 years of age
─ was statutorily ineligible for a grant of proba tion because he had suffered a prior strike

7 At trial, the court excluded evidence of Gastelum's history as a member of a criminal street gang.20 conviction. It also read and considered th e People's sentencing statement and opposition
to Gastelum's Romero 8 motion to strike his 2006 pr ior strike conviction. The court granted Gastelum's motion to st rike his prior strike for purposes of sentencing, but found he was not a suitable candidate for probation. The trial court explained, "I can't go further than that and find that . . . he's a suitable candidate for probation. His prior record belies that , . . . [and] the Court's given him every consideration he's entitled to by striking the stri ke, but . . . still, in my view, . . . the only appropriate disposition is to commit him to th e Department of Corrections. But rather than a four-year term, it would be . . . a two-year term, mid term."
B. Applicable Legal Principles Rule 4.414, which sets forth certain criteri a relevant to the tria l court's decision to grant or deny probatio n, provides in part: "Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant. "(a) Facts relating to the crime "Facts relating to the crime include: "(1) The nature, seriousness, and circumstances of the crime as compared to other instan ces of the same crime; "(2) Whether the defendant was armed with or used a weapon; [¶] . . . "(4) Whether the defendant inflicte d physical or emotional injury; "(5) The degree of monetary loss to the victim;

8 People v. Superior Court ( Romero ) (1996) 13 Cal.4th 497.21 "(6) Whether the defendant was an active or a passive participant; "(7) Whether the crime was committed because of an unusual circumstance, such as great provoca tion, which is unlikely to recur; "(8) Whether the manner in wh ich the crime was carried out demonstrated criminal sophisticat ion or professionalism on the part of the defendant. . . ." "(b) Facts relating to the defendant "Facts relating to the defendant include: "(1) Prior record of criminal c onduct, whether as an adult or a juvenile, including the recency an d frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct; "(2) Prior performance on probati on or parole and present probation or parole status; "(3) Willingness to comply with the terms of probation; "(4) Ability to comply with reasonable te rms of probation as indicated by the defendant's age, e ducation, health, mental faculties, history of alcohol or other substa nce abuse, family background and ties, employment and military servic e history, and other relevant factors; "(5) The likely effect of impris onment on the defendant and his or her dependents; [¶] . . . "(7) Whether the defendant is remorseful; and "(8) The likelihood that if not imprisoned the defendant will be a danger to others." "In deciding whether to grant or deny pr obation, a trial court may also consider additional criteria not listed in the rules prov ided those criteria are reasonably related to that decision. (Rule 4.408(a).) A trial court is generally required to state its reasons for22 denying probation and imposi ng a prison sentence, includ ing any additional reasons considered pursuant to rule 4.408. (Rules 4.406(b)(2) & 4.408(a).) Unless the record affirmatively shows otherwise, a trial court is deemed to have considered all relevant criteria in deciding whether to grant or deny probation or in making any other discretionary sentencing choice. (Rule 4.409.)" ( People v. Weaver (2007) 149 Cal.App.4th 1301, 1313.)
1. Standard of review "The grant or denial of probation is within the trial court's discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion." ( People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) In reviewing a trial court's decision to grant or deny probation, " it is not our function to substitu te our judgment for that of the trial court. Our function is to determine whether the trial court's order granting [or denying] probation is arbitrary or capricious or exceeds th e bounds of reason considering all the facts and circumstances." ( People v. Superior Court ( Du ) (1992) 5 Cal.App.4th 822, 825.) "[I]n determining whether a trial court ab used its discretion by denying probation, we consider, in part, whether there is sufficien t, or substantial, evidence to support the court's finding that a particular factor was applicable." ( People v. Weaver , supra , 149 Cal.App.4th at p. 1313.)
C. Analysis Although Gastelum
─ as the court found and he acknowledges
─ initially was ineligible for probation by stat ute due to his prior strike co nviction, he became eligible23 for consideration for a grant of pr obation when the court granted his Romero motion to strike his 2006 strike conviction. Gastelum contends the court abused its discretion in denying his request for proba tion because (1) his illegal po ssession of metal knuckles was "less serious than a typical possession of a de adly weapon in general" because most other deadly weapons are mo re dangerous; (2) his offense wa s "less serious than the usual possession of metal knuckles" because he was not carrying them on his person; (3) he "was not armed with and did not use a weapon during his crimes as the metal knuckles were not found on his pe rson"; (4) there were no victims; (5) he did not inflict emotional or physical injury on anyone; (6) his crime "was not particularly sophisticated as it involved simple possession of metal knuckles"; (7) only one of his prior convictions was a violent felony; (8) his current conviction "s howed a pattern of de-escalating criminal conduct as it involved a wobbler"; (9) he ha d remained out of custody during the 10- month period prior to his arrest in this case; (10) he was w illing and able to comply with the terms of probation; and (11) incarcerat ion will have an advers e effect on him, his toddler daughter, and he r mother (Appling). Based on our review of the record we c onclude the trial court did not abuse its discretion by denying Gastelum probation. The probation report shows Gastelum has an extensive criminal history and he "performed poorly while on juve nile probation." His criminal history began in April 2000 when he was 11 years old, and, as the Attorney General points out, he "has been in an out of trouble ever since." Gastelum's most serious offense (the st rike prior), which he committed in 2006, involved his beating rival gang members wi th a golf club. He was committed to the24 California Youth Authority and was paroled in early December 2009. Four months later, in April 2010, Gastelum's paro le was revoked and he was retu rned to custody. He was released again in October 2010 , but again he violated his pa role and he was returned to custody four months later in February 2011. He was released from custody in December 2011, and committed the instant offenses 10 m onths later in Octobe r 2012 while he was still on parole. Thus, although Gastelum's current convic tions are his first convictions since his 2006 strike offense, he was only out of custody for a total of 18 months during that period of time, and he had violated his parole twic e prior to committing his current offenses. In addition to his extensive criminal re cord and his poor performance on juvenile probation and parole, various additional factors weigh agains t the granting of probation in this matter, as Gastelum acknowledges. Spec ifically, he concedes (1) he was an active participant in the crimes (Rule 4.414(a)(6)); (2) there was no indication he committed the crimes due to an unusual circum stance, such as great provocatio n, that is unlikely to recur (Rule 4.414(a)(7)); and (3) "it cannot be argu ed that he was remors eful for his conduct" (Rule 4.414(b)(7)). On the foregoing record, we cannot c onclude the court's decision to deny Gastelum's request for probation was arbitrary or capricious. The c ourt acted well within the limits of its broad legal discretion. As already noted, on appeal "it is not our function to substitute our judgment for that of the trial court" ( People v. Superior Court ( Du ),

supra , 5 Cal.App.4th at p. 825). Th at, in effect, is what Gastelum suggests we do. For all of the above reasons, we affirm the court's decision to deny probation.25 DISPOSITION The judgment is affirmed.

NARES, J.
WE CONCUR:

McCONNELL, P. J.

AARON, J.