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Filed 2/16/21 P. v. Irvine CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Tehama)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

STEVEN RAY IRVINE, JR.,

Defendant and Appellant.

C090224

(Super. Ct. No. 19CR001056)

After defendant Steven Ray Irvine, Jr., pleaded guilty to criminal threats and 

possession of a controlled substance with a firearm, the trial court denied probation and 

imposed an aggregate nine-year four-month sentence. Defendant appeals, contending the 

trial court abused its discretion and violated defendant’s due process rights by denying 

him probation. We affirm the judgment.
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FACTS AND PROCEDURAL HISTORY

Early one morning, defendant was under the influence of alcohol and 

methamphetamines. He came home to see his stepfather’s car parked in front of his 

house. Defendant “flashed” with anger because his stepfather was a “child molester” and 

was not welcome in his home. Defendant had a new gun and decided to “light it up.” He 

fired gunshots from outside his house and into his mother’s bedroom window, waking his 

mother and stepfather. Defendant then shot out the windows of his stepfather’s car and 

entered the house. His mother confronted him, and he told her to leave, shoved her chest, 

pointed a gun at her face, and threatened to kill her. She went back to her bedroom, and 

defendant followed. Defendant told his stepfather he was going to “blow his fucking 

head off” as his stepfather lay on the floor with his wife to avoid the confrontation.

As defendant repeatedly told his mother and stepfather to leave the house, they 

packed up their belongings and began to load the car. While they loaded, defendant shot 

multiple rounds from about twenty-five yards away. One bullet “whizz[ed]” by his 

stepfather’s ear. Defendant continued shooting as they drove away. Defendant estimated 

he shot approximately 100 rounds, after which he went back inside the house and fell 

asleep. 

The SWAT team arrived shortly thereafter and repeatedly called out for defendant 

to leave his home. Defendant did not answer and the SWAT team entered the home and 

arrested him. Once inside, deputies found numerous firearms, high-capacity magazines, 

drum magazines, and ammunition, as well as two baggies of methamphetamine. During 

booking, they also found 3.45 grams of methamphetamine on defendant’s person. 

Defendant explained his intent was to shoot repeatedly in the air to scare his 

mother and stepfather, but denied wanting to kill them. He described himself as “raising 

hell” in an effort to get them out of the house. 
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In an open plea, defendant pleaded guilty to two counts of making criminal threats 

(Pen. Code, § 422) (statutory section references that follow are to the Penal Code unless 

otherwise set forth) and one count of possessing a controlled substance with a firearm 

(Health & Saf. Code, § 11370.1, subd. (a)). He further admitted that he personally used a 

firearm within the meaning of section 12022.5, subdivision (a). 

At sentencing, the trial court acknowledged defendant was presumptively

ineligible for probation under section 1203, subdivision (e)(2). It denied probation and 

sentenced defendant to an aggregate term of nine years four months, comprised of the 

upper term of four years for possession of a controlled substance with a firearm, a 

consecutive four-year term for the firearm enhancements, and one-third the midterm of 

eight months consecutive for each criminal threat. 

DISCUSSION

Defendant concedes he was presumptively ineligible for probation but argues this 

was an unusual case where the interests of justice would be served by granting probation. 

As noted, ante, he contends the trial court abused its discretion when it denied probation, 

and argues that the trial court’s failure to expressly articulate why the case did not qualify 

as unusual or otherwise eligible for probation violated his due process rights. Given 

defendant’s criminal actions while under the influence of alcohol and 

methamphetamines, we find no difficulty in holding that the trial court did not err when it 

determined that this was not an unusual case within the meaning of section 1203, 

subdivision (e)(2) and denied probation. Further, the trial court did not deny defendant 

due process of law when the court did not expressly state on the record its reasons for 

denying probation.

“Except in unusual cases in which the interests of justice would best be served if 

the person is granted probation, probation shall not be granted to . . . [a]ny person who 

used, or attempted to use, a deadly weapon upon a human being in connection with the 
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perpetration of the crime of which that person has been convicted.” (§ 1203, subd. 

(e)(2).) “The standard for reviewing a trial court’s finding that a case may or may not be 

unusual is abuse of discretion.” (People v. Superior Court (Du) (1992) 5 Cal.App.4th 

822, 831.)

In determining whether a case is “unusual,” the court may consider whether (1) the 

circumstances of the crime were substantially less serious than the circumstances 

typically present in other cases involving the same probation limitation, and the 

defendant has no recent record of committing similar crimes or crimes of violence;

(2) the current offense is less serious than a prior felony conviction that is the cause of the 

limitation on probation, and the defendant has been free from incarceration and serious 

violation of the law for a substantial time before the current offense; (3) the defendant 

participated in the crime under circumstances of great provocation, coercion, or duress 

not amounting to a defense, and the defendant has no recent record of committing crimes 

of violence; (4) the crime was committed because of a mental condition not amounting to 

a defense, and there is a high likelihood that the defendant would respond favorably to 

mental health care and treatment that would be required as a condition of probation; and 

(5) the defendant is youthful or aged, and has no significant record of prior criminal 

offenses. (Cal. Rules of Court, rule 4.413(c)(l), (2).)

Mere suitability for probation does not overcome the presumption against 

probation; if the statutory limitations on probation are to have any substantial scope and 

effect, “unusual cases” and “interests of justice” must be narrowly construed. (People v. 

Stuart (2007) 156 Cal.App.4th 165, 178.)

Here, there is no merit to defendant’s contention that the trial court failed to 

properly consider or apply the factors relevant to unusual cases. At sentencing, the court 

stated it had considered the probation report, the victims’ statements requesting no 

prosecution, defendant’s letters of support, the treatment court recommendation, the 

behavioral health court and drug court recommendation, defendant’s motion to dismiss 
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the firearm enhancement, and defendant’s completion of an anger management 

workbook. The probation report went through several factors under rule 4.413(c) and, 

finding the case was not unusual, recommended a prison commitment. 

Defense counsel argued probation was warranted because defendant had a 

minimal criminal record, cooperated with law enforcement, did not intend to harm his 

victims, and was willing and able to comply with the terms and conditions of probation. 

The trial court acknowledged defendant had a “fairly de minimus” record, describing his 

crimes here as “sort of an aberration.” However, it found the case presumptively 

ineligible for probation under section 1203, subdivision (e)(2), and denied probation 

because defendant created a situation where “somebody very easily could have been 

killed.” Thus, there is no indication the court failed to consider the factors in rule 4.413.

Moreover, the trial court was not required to specify on the record the reasons why 

it found defendant’s case was not an unusual one justifying deviation from presumptive 

ineligibility. (See, People v. Bradley (1993) 15 Cal.App.4th 1144, 1156; see also, People 

v. Lesnick (1987) 189 Cal.App.3d 637, 644.) Here, the trial court denied probation on the 

grounds the case was presumptively ineligible and not unusual. Nothing further was 

required.

We also note defendant has not demonstrated that any of the factors under rule 

4.413(c)(1) and (c)(2), purportedly qualifying this case as unusual, were satisfied. 

Defendant fired approximately 100 shots, including through the bedroom window while 

his mother and stepfather slept, and then inside the room while they scrambled to leave. 

He nearly shot his stepfather in the head. Thus, the court reasonably concluded that the 

circumstances of the crime were not substantially less serious than circumstances typical 

in other cases where a defendant used or attempted to use a deadly weapon upon a human 

being in connection with the perpetration of their crime. (Cal. Rules of Court, rule 

4.413(c)(1)(A).) And despite defendant’s contention to the contrary, rule 4.413(c)(1)(B) 

is inapplicable, as his limitation on probation was not due to a prior felony conviction. 
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The court was also within its discretion to conclude the crime was not committed 

under circumstances of great provocation, coercion, or duress not amounting to a defense, 

as defendant’s mother and stepfather were asleep when he began shooting. (Cal. Rules of 

Court, rule 4.413(c)(2)(A).) Defendant also described that he “flashed” and was “raising 

hell” when he shot approximately 100 rounds with his new gun. These facts do not 

support provocation, coercion, or duress on the part of defendant. Further, the probation 

report states defendant does not have any mental health conditions. And given defendant

has a prior conviction for driving under the influence, and he admitted six years of daily 

methamphetamine use prior to his arrest, the court could reasonably conclude there was

not a “high likelihood that the defendant would respond favorably to mental health care 

and treatment that would be required as a condition of probation.” (Cal. Rules of Court, 

rule 4.413(c)(2)(B).) Moreover, while defendant’s criminal record was not extensive, he 

was previously convicted of driving under the influence of alcohol, driving with a 

suspended license, and failure to appear. And at age 36, he was neither youthful nor 

aged, thus rendering the exception under California Rules of Court, rule 4.413(c)(2)(C) 

inapplicable. Accordingly, the court was within its discretion to find the case was not 

unusual under the factors set forth in California Rules of Court, rule 4.413(c).

Moreover, “[u]nder rule 4.413, the existence of any of the listed facts does not 

necessarily establish an unusual case; rather, those facts merely ‘may indicate the 

existence of an unusual case.’ [Citation.] This language indicates the provision ‘is 

permissive, not mandatory.’ [Citation.] ‘[T]he trial court may but is not required to find 

the case unusual if the relevant criterion is met under each of the subdivisions.’ 

[Citation.]” (People v. Stuart, supra, 156 Cal.App.4th at p. 178.) Thus, the court was 

under no obligation to find this case unusual, even if one of the foregoing factors had 

been met.

Where a court determines the presumption against probation is overcome, it 

evaluates whether or not to grant probation pursuant to California Rules of Court, rule 
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4.414. (People v. Stuart, supra, 156 Cal.App.4th at p. 178.) As the trial court here made 

no such determination, we need not address defendant’s contention that probation was 

warranted under California Rules of Court, rule 4.414. Based on the entire record before 

us, there was no abuse of discretion in finding this was not an unusual case in which the 

interests of justice would have been served by granting defendant probation.

DISPOSITION

The judgment is affirmed. 

 

HULL, Acting P. J.

We concur:

 

ROBIE, J.

 

MURRAY, J.