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Filed 3/25/16 P. v. Quach 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

KHAI QUANG QUACH,

Defendant and Appellant.

C079955

(Super. Ct. No. 14F04630)

Defendant Khai Quang Quach pled no contest to assault with a firearm and was 

sentenced to a five-year prison term. (Pen. Code, § 245, subd. (a)(2).)1 On appeal, he 

contends the trial court abused its discretion by refusing to find unusual circumstances 

and denying him probation. He also contends the trial court erred in imposing a $500 

domestic violence fee because it is only applicable to defendants who are granted 

probation. We shall strike the $500 domestic violence fee and affirm the judgment as 

modified.

 

1

 Undesignated statutory references are to the Penal Code.
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FACTUAL AND PROCEDURAL BACKGROUND

Defendant and T.N. are married and have two children together. In July 2014, 

defendant, who had been drinking, entered the bedroom where T.N. and the children

were sleeping. He shot his gun near T.N.’s face, injuring her ear and face. Defendant 

then showed the gun to T.N. and continued to make verbal threats. Defendant left the 

room and then came back, accusing T.N. of being unfaithful and threatening to stop 

supporting her and the children.

Soon thereafter, T.N. went to the hospital for treatment and spoke with the police. 

The police also went to the family home to check on the children, and defendant told 

them he could not remember what happened, but that the gun went off accidentally. 

Defendant also said he was drunk.

T.N. told the police defendant often carried the gun around the house. Although 

she never thought he would do anything with the gun, he often got “mad and drunk,” and 

he would pick up the gun while talking with her.

Defendant pled no contest to assault with a firearm and admitted he personally 

used a firearm. (§§ 245, subd. (a), 12022.5, subd. (a).) Defendant was eligible for 

probation if his case were unusual pursuant to California Rules of Court, rule 4.413,2

(§ 1203, subd. (e)(2)) and the probation report recommended probation. The report noted 

the circumstances of the crime were less serious than those typically present in similar 

crimes, and defendant had no record of similar crimes or violent crimes. The crime was 

spontaneous, and the victim did not want defendant incarcerated. In addition, defendant 

participated in multiple rehabilitation programs and had stopped drinking.

The trial court took issue with the probation report and found the case was not 

unusual or less serious than a typical assault with a firearm. The court acknowledged 

 

2

 All further rule references are to the California Rules of Court.
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defendant’s rehabilitation efforts but reasoned that alcohol was not the sole cause of the 

assault. Defendant was abusive and controlling of T.N., and was in the habit of getting 

“mad and/or drunk,” and then walking “around the house with a gun. That is not just an 

alcohol issue.” In addition, T.N. was vulnerable, and defendant committed the assault 

while the children were present.

The court denied probation and sentenced defendant to the low term of two years, 

plus three years for the firearm enhancement, for a total of five years. The court also 

imposed various fines and fees, including a $500 domestic violence fee pursuant to 

section 1203.097, subdivision (a)(5). Pursuant to the parties’ plea deal, the court 

dismissed a charge of felony child endangerment. (§ 273a, subd. (a).)

DISCUSSION

I

Defendant contends the trial court abused its discretion in denying probation. We 

disagree.

Those who use a firearm while committing a crime are statutorily ineligible for 

probation “[e]xcept in unusual cases where the interests of justice would best be served if 

the person is granted probation . . . .” (§ 1203, subd. (e)(2).) The courts must narrowly 

construe “ ‘unusual cases’ ” and “ ‘interests of justice,’ ” and limit such grants of 

probation “to those matters in which the crime is either atypical or the offender’s moral 

blameworthiness is reduced.” (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 

1216, 1229; see rule 4.413(c) [setting out criteria which “may” indicate the existence of 

an usual case].)

We review for abuse of discretion a trial court’s finding as to whether a case is 

unusual. (People v. Stuart (2007) 156 Cal.App.4th 165, 178.) A trial court has broad 

discretion to determine whether to grant probation, and a decision will not be reversed 

unless it is “ ‘so irrational or arbitrary that no reasonable person could agree with it.’ ” 

(Id. at p. 179.) 
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Defendant contends he qualified for probation under rule 4.413(c)(2), because he 

suffered from alcoholism, which he argues the trial court failed to consider as a

recognized mental condition. Defendant also contends the court failed to consider his 

participation in rehabilitation. We reject both claims.

First, even if, as defendant contends, alcoholism was a recognized mental 

condition for purposes of rule 4.413(c)(2), this would not have automatically qualified

defendant for probation. Rule 4.413’s provisions are “ ‘permissive, not mandatory,’ ” 

and the court “ ‘may but is not required to find the case unusual if the relevant criterion is 

met under each of the subdivisions.’ ” (People v. Stuart, supra, 156 Cal.App.4th at 

p. 178.) 

In addition, rule 4.413 requires a crime be committed “because of a mental 

condition not amounting to a defense.” (Rule 4.413(c)(2)(B), italics added.) The trial 

court rejected that defendant’s alcoholism caused him to shoot the gun near his wife’s 

head, observing the “abuse and control” in defendant’s relationship with T.N. and 

defendant’s habit of carrying a gun around the house when he was mad or drunk.

Second, and despite defendant’s contentions, the trial court recognized defendant’s

substantial efforts to address his alcoholism, noting it “causes the defendant to be more 

sympathetic at sentencing.” Still, these efforts were not outweighed by the seriousness of 

defendant firing a gun close enough to injure his wife and in the presence of his two 

children. This conclusion was reasonable and within the court’s discretion.

II

Defendant correctly asserts the trial court erroneously imposed a $500 domestic 

violence fee pursuant to section 1203.097, subdivision (a)(5). This fee is to be imposed 

only when a defendant is “granted probation.” (§1203.097, subd. (a); see also People v. 

Kirvin (2014) 231 Cal.App.4th 1507, 1520.) Because defendant was sentenced to prison,

the fee was unauthorized.
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DISPOSITION

The $500 domestic violence fee is stricken. The trial court is directed to prepare 

an amended abstract of judgment and to forward a certified copy to the Department of 

Corrections and Rehabilitation. As modified, the judgment is affirmed.

 /s/

Blease, Acting P. J.

We concur:

 /s/

Robie, J.

 /s/

Hoch, J.