Filed 7/24/14 P. v. Gastelum CA4/1 

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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 Superior Court of San Diego County, David M. 

Gill, Judge. Affirmed. 

 Denise Rudasill, by appointment of the 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 garage where police found him hiding. 

 After the People rested their case-in-chief, the court denied without prejudice 

Gastelum's motion to reduce the possession-of-metal-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, 668) 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 Gastelum's motion to strike his prior strike. 

The court then sentenced him to the middle state prison term of two years for his count 1 

conviction and to time served for his count 2 conviction of misdemeanor resisting arrest. 

 Gastelum raises three contentions on appeal. First, he contends his convictions of 

should be reversed because the court prejudicially abused its discretion 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 where they found him 

hiding. Second, Gastelum alternatively contends 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. Last, he contends the court erred by failing 

to grant him probation because "an analysis of the criteria affecting probation under 

[California Rules of Court2] 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 bedroom 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 search. Detective Zaldivar testified that, as 

they were driving up to the residence, he "heard a female talking on the phone saying, 

 

2 All further rule references are to the California Rules of Court. 
4 

'[t]he police are coming.'" Immediately thereafter, several individuals left the residence. 

The officers secured the perimeter of the residence by surrounding both the home and the 

detached garage. 

 Sergeant Williams testified that one of the 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 garage where they thought somebody was hiding inside. The 

officers announced their presence several times and instructed anyone inside the garage 

to come out. Sergeant Williams testified the interior of the garage was dark 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 garage were filled with crates, cartons, and 

bags stacked five feet high. 

 As the officers again announced their presence, Sergeant Williams looked into the 

right side of the garage door and observed rifles leaning back against the interior of the 

garage. Sergeant Williams directed another officer to reach inside and pull the rifles out. 

 At that point, the officers discovered the rifles were airsoft rifles, which use plastic 

pellets as ammunition. Sergeant Williams testified, however, that when she saw the rifles 

in the garage, she feared that there were other weapons in the garage and that whoever 

was hiding inside might be armed. 

 After the officers unsuccessfully attempted to use a mirrored pole to locate the 

person hiding in the garage, the officers deployed pepper spray 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 officers 
5 

then used a pepper ball gun, which is similar to a paintball gun, to deploy two pepper 

balls into two corners of the garage to try to get the person hiding inside 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. Officer Barnes also felt the effects of the 

pepper spray. 

 Sergeant Williams also testified she found Gastelum hiding underneath a large 

plastic five-gallon crate lid. She stated that Gastelum resisted the officers' efforts to place 

him in handcuffs by "trying to pull away and shift and drop his body weight." 

 Officer DeWitt testified that as he began to pat Gastelum down for weapons, 

Gastelum, who had been handcuffed, "immediately 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, Gastelum 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 away from Officer DeWitt's grip, stomped his 

feet, and pulled his body in different directions. Gastelum eventually 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 with Appling when he entered her residence 

that evening. After informing him that she and Gastelum lived together there, Appling 
6 

pointed to the bedroom and referred to it as "our bedroom." She admitted some of 

Gastelum's belongings were stored in their bedroom. 

 Detective Zaldivar asked Officer Lane to search the bedroom closet. Officer Lane 

testified he found black metal knuckles inside the back pocket of a blue pair of shorts he 

found hanging in the left side of the closet where men's clothing was stored. 

 Appling testified she remembered hanging those blue shorts 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 found 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 that 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 discretion and violated his federal constitutional right to due 

process by admitting evidence that police found airsoft rifles─which they initially 

believed were real rifles─in the garage where they found Gastelum hiding. In support of 

this contention, Gastelum asserts this evidence was "completely irrelevant" and should 

have been excluded under Evidence Code section 352 because it was "more prejudicial 
7 

than probative." We reject Gastelum's contention 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, and 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 have possessed," and it was more prejudicial than 

probative. 

 During the hearing on the motion, the prosecution informed the court it intended to 

introduce this evidence in order 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 relevant 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 chose to stay in the garage. 

 a. Ruling 

 The court denied Gastelum's in limine motion, finding that the challenged 

evidence had "significant probative value in terms of consciousness of guilt in count 1 

[(possession of metal knuckles)]," the introduction of this evidence would not "confuse or 

mislead the jury," and the evidence was not unduly prejudicial. 
8 

 After issuing its ruling, the court noted that 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 context" in which the police used pepper spray in this case. The court 

mentioned that the defense could 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 San 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 whether 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 enforcement 
9 

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 evidence as "evidence, including evidence 

relevant to the credibility of a witness or hearsay declarant, having any tendency in 

reason to prove or disprove any disputed fact that is of consequence to the determination 

of the action." 

 2. Evidence Code section 352

 "When an objection to evidence is raised under Evidence Code section 352,[3] the 

trial court is required to weigh the evidence's probative value against the dangers of 

prejudice, confusion, and undue time consumption. Unless these dangers 'substantially 

outweigh' probative value, the objection must be overruled." (People v. Cudjo (1993) 6 

Cal.4th 585, 609.) Thus, evidence is properly excluded under Evidence Code section 352 

"if its probative value is substantially outweighed by the probability that its admission 

will . . . necessitate undue consumption of time 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: "The court in its discretion may exclude 

evidence if its probative value is substantially outweighed by the probability that its 

admission will (a) necessitate undue consumption 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 explained 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 prejudicial 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 defendant 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 erroneous 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 relevance of the evidence in question." (People v. Waidla

(2000) 22 Cal.4th 690, 717.) We also review the trial court's rulings under Evidence 
11 

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 excluding evidence will not be disturbed and reversal of the 

judgment is not required "except on a showing the trial court exercised its discretion in an 

arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of 

justice." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) 

 Error in the admission or exclusion of evidence following an exercise of discretion 

under Evidence Code section 352 is tested for prejudice under the Watson4 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 absence of the error." 

(Watson, supra, 46 Cal.2d at p. 836.) 

 C. Analysis

 In support of his claim the court erred by admitting evidence that the police found 

airsoft rifles in the garage where they found 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.4th 1107 for the proposition that "[e]vidence that goes to the 

issue of reasonableness of the officers' conduct 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 arresting [him] was not an issue the jury had to 

decide" because he stipulated that they were lawfully pursuing their duties when they 

arrested him and when they searched the residence where they found him. Gastelum also 

asserts the court should have excluded the airsoft rifle evidence under Evidence Code 

section 352 because the evidence was "highly prejudicial as it likely led the jury to 

believe [he] was the type of person who possessed dangerous weapons in general, and to 

possibly speculate that he may have possessed the [airsoft rifles] for a nefarious purpose." 

Thus, he maintains, the evidence 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 error is unavailing because he has 

failed to demonstrate any such error was prejudicial 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. Specifically, he asserts "[t]his is because the evidence of [his] guilt was 

not overwhelming and . . . this improperly admitted evidence likely 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." These 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 obtained a more favorable result at trial in the 

absence of the assumed evidentiary error. 
13 

 1. Count 1 

 Regarding count 1, the record 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 section 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 further instructed the jury that possession of 

the metal knuckles could be constructive and that "[t]wo or more people may possess 

something at the same time." 

 Here, the evidence strongly supports the jury's finding 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 under 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 bedroom and the bedroom closet 

with her. Appling testified that Gastelum kept 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 hanging on the left side of the closet the men's clothing was 
14 

stored. Appling testified she remembered hanging those blue shorts in the closet and she 

previously had seen him wearing those shorts. 

 Appling's testimony was corroborated by Detective Zaldivar, who testified that 

Appling informed him that she and Gastelum lived together in her home, 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 jacket with a white and blue collar and white sleeves. 

Detective Zaldivar stated that this same jacket was found inside 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 Officer Lane found in Gastelum's shorts in 

the closet. 

 The evidence also supports the jury's finding that the prosecution met its burden of 

proving the third element of count 1. Detective Zaldivar testified 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 bottom." 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" conducted "pursuant to a valid 4th Amendment 

waiver." During pretrial proceedings, the court found there were no "Fourth Amendment 

issues" because the search of the home was a "lawful parole search." 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 shorts are used "as a weapon" to strike or hit 

someone. 

 All of the foregoing evidence 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 they were a weapon. Thus, we conclude 

Gastelum has failed to demonstrate a reasonable probability the jury would have 

acquitted him of count 1 if the court had excluded the airsoft rifle evidence. 

 2. Count 2 

 The evidence also strongly supports Gastelum's conviction of count 2. The record 

shows the court properly instructed 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 police officers in this case were lawfully 

performing or attempting to perform their duties as peace officers; (2) Gastelum willfully 

resisted, obstructed, or delayed the officers in the performance or attempted performance 

of those duties; and (3) when he acted, Gastelum knew or reasonably should have known 

the officers were peace officers performing or attempting to perform their duties. 

 Here, the evidence strongly supports the jury's finding that the prosecution met its 

burden of proving all three elements of count 2. Regarding the first element, as noted, 

ante, the parties stipulated that "all law enforcement personnel on scene that day carried 

out their duties in a lawful manner." 

 Regarding the second element, the prosecution presented evidence 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 Williams testified that Gastelum 

resisted the officers' efforts to place him in handcuffs by "trying to pull away and shift 

and drop his body weight." Officer DeWitt testified that 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 shoulders 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 prosecution presented strong circumstantial 

evidence that Gastelum knew or should have known the officers were peace officers by 

presenting testimony that the officers repeatedly announced their presence 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 failed to meet his burden of showing he was 

prejudiced by the introduction of the airsoft rifle 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 the 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 court 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 misdemeanor. We reject this contention. 

 A. Background

 Before the jury returned its verdicts, as already noted, Gastelum brought a motion 

under section 17(b) to reduce the possession-of-metal-knuckles charge from a felony to a 

misdemeanor. Defense counsel asserted 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, . . . flailing around . . . , forcing officers to resort to 

pepper spray after initial attempts 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, Gastelum 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 and 
18 

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 presence at some other time." 

 Following additional arguments 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 misdemeanor, 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 court recently explained that trial 

courts have "broad discretion under section 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 court's decision to grant or deny a section 17(b) 

motion will not be disturbed on appeal "unless 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 court 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 felony 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 wobbler 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 Gastelum'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 exercised 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 offense 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 erred 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 court 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 probation 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 the People's sentencing statement and opposition 

to Gastelum's Romero8 motion to strike his 2006 prior strike conviction. 

 The court granted Gastelum's motion to strike 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 strike, but . . . still, in my view, . . . the only 

appropriate disposition is to commit him to the 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 criteria relevant to the trial court's decision to 

grant or deny probation, 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 instances of the same crime; 

"(2) Whether the defendant was armed with or used a weapon; 

[¶] . . . 

"(4) Whether the defendant inflicted 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 provocation, which is unlikely to recur; 

"(8) Whether the manner in which the crime was carried out 

demonstrated criminal sophistication 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 conduct, whether as an adult or a 

juvenile, including the recency and frequency of prior crimes; and 

whether the prior record indicates a pattern of regular or increasingly 

serious criminal conduct; 

"(2) Prior performance on probation or parole and present probation 

or parole status; 

"(3) Willingness to comply with the terms of probation; 

"(4) Ability to comply with reasonable terms of probation as 

indicated by the defendant's age, education, health, mental faculties, 

history of alcohol or other substance abuse, family background and 

ties, employment and military service history, and other relevant 

factors; 

"(5) The likely effect of imprisonment 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 probation, a trial court may also consider 

additional criteria not listed in the rules provided those criteria are reasonably related to 

that decision. (Rule 4.408(a).) A trial court is generally required to state its reasons for 
22 

denying probation and imposing a prison sentence, including 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 substitute 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 the 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 abused its discretion by denying probation, 

we consider, in part, whether there is sufficient, 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 statute due to his prior strike conviction, he became eligible 
23 

for consideration for a grant of probation 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 probation because (1) his illegal possession of metal knuckles was 

"less serious than a typical possession of a deadly weapon in general" because most other 

deadly weapons are more dangerous; (2) his offense was "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 person"; (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 "showed a pattern of de-escalating criminal 

conduct as it involved a wobbler"; (9) he had remained out of custody during the 10-

month period prior to his arrest in this case; (10) he was willing and able to comply with 

the terms of probation; and (11) incarceration will have an adverse effect on him, his 

toddler daughter, and her mother (Appling). 

Based on our review of the record we conclude 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 juvenile 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 strike prior), which he committed in 2006, 

involved his beating rival gang members with a golf club. He was committed to the 
24 

California Youth Authority and was paroled in early December 2009. Four months later, 

in April 2010, Gastelum's parole was revoked and he was returned to custody. He was 

released again in October 2010, but again he violated his parole 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 months later in October 2012 while he was 

still on parole. 

 Thus, although Gastelum's current convictions 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 twice prior to committing his current offenses. 

 In addition to his extensive criminal record and his poor performance on juvenile 

probation and parole, various additional factors weigh against the granting of probation in 

this matter, as Gastelum acknowledges. Specifically, 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 circumstance, such as great provocation, that is unlikely to recur 

(Rule 4.414(a)(7)); and (3) "it cannot be argued that he was remorseful for his conduct" 

(Rule 4.414(b)(7)). 

 On the foregoing record, we cannot conclude the court's decision to deny 

Gastelum's request for probation was arbitrary or capricious. The court 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). That, 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.