People v. Irving CA4/3 ( 2021 )

Filed 9/22/21 P. v. Irving CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G060195
v. (Super. Ct. No. C1651027)
DANIEL IRVING, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Santa Clara, Jacqueline
M. Arroyo, Judge. Affirmed.
Jason Szydlik, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric
D. Share and Ashley Harlan, Deputy Attorneys General, for Plaintiff and Respondent.
Daniel Irving appeals from a judgment after a jury convicted him of two
counts of driving under the influence of alcohol and causing bodily injury to another
person. Irving argues insufficient evidence supports his convictions, the trial court erred
by denying his right to cross-examination, and the court erred by denying probation based
on the mistaken belief he was ineligible. None of his contentions have merit, and we
affirm the judgment.
FACTS
Just before midnight, Antonio Maldonado was walking with his brother-in-
law, Edgar Cantoran, on Market Street in downtown San Jose near the convention center.
Cantoran was on his cell phone but ended the call when they approached the intersection.
The intersection was well lit and visibility was excellent.
They pressed the pedestrian crosswalk button and began crossing the street.
Cantoran initially said they entered the intersection when the red hand signaling do not
walk was flashing (too early) and then said they were in the crosswalk when the red hand
signaling do not walk started flashing (too late).
They were in the middle of the crosswalk when Maldonado heard Irving’s
car approaching “really fast.” Maldonado, who was a couple of steps behind Cantoran,
retreated toward the sidewalk, but Cantoran ran toward the opposite side of the street.
Irving’s Jetta hit Cantoran. Maldonado ran to Irving and punched him. Maldonado tried
to talk to Cantoran, but he was unconscious and seizing.
Emergency response personnel arrived and took Cantoran to the hospital.
Inside Irving’s vehicle, police officers located an open container of alcohol, cannabis
substances, and cannabis paraphernalia.
Officer Zachary Preuss arrived at the scene and determined the applicable
speed limit was 35 miles per hour. Irving told Preuss that he was “120 [percent]
positive” Cantoran was “in the crosswalk on a green light.” Irving claimed he was
2
driving about 35 miles per hour. Irving initially denied drinking any alcohol or ingesting
any cannabis. Irving ultimately admitted he drank two or three beers and smoked
cannabis between two and four hours before the collision. Preuss conducted field
sobriety and breathalyzer tests. The breathalyzer test measured Irving’s blood alcohol
content at 0.14 and 0.13 percent. At the police station a few hours later, Irving submitted
to a blood draw.
Cantoran remained in a coma for two weeks—he suffered a brain injury,
including brain bleeding, and acute respiratory failure. After waking from his coma,
Cantoran was unable to speak. As a result of his injuries, Cantoran developed seizures
and experienced changes to his personality. He was unable to recognize his partner and
their child.
A third amended information charged Irving with the following: driving
under the influence of alcohol and causing bodily injury to another person (Veh. Code,
§ 23153, subd. (a)) (count 1); driving under the influence of alcohol with a blood alcohol
level of 0.08 percent and causing bodily injury to another person (Veh. Code, § 23153,
subd. (b)) (count 2); and driving under the combined influence of any alcoholic beverage
1
and drug and causing injury to another person (Veh. Code, § 23153, subd. (g)) (count 3).
The information charged him with concurrently committing the following acts forbidden
by law or neglecting to perform a legal duty on each count: basic speed law (Veh. Code,
§ 22350); prima facie speed law (Veh. Code, §§ 22351-22352); unsafe lane change (Veh.
Code, § 22107); and failure to yield the right of way at a crosswalk (Veh. Code,
§ 21950). It also alleged he personally inflicted great bodily injury as to each count.
(Pen. Code, §§ 12022.7, subd. (b), 1203, subd. (e)(3).) Finally, it alleged he suffered a
prior driving under the influence conviction. (Veh. Code, § 23152.)
1
The information erroneously cited to subdivision (f).
3
At trial, Husband and Wife testified they were driving in downtown San
Jose about 20 to 30 miles per hour. Husband did not recall seeing any pedestrians as he
drove. They testified a green Volkswagen Jetta passed them, swerved into their lane, and
swerved around the car in front of them. They estimated the Jetta was traveling 40 to 60
miles per hour. They both testified the light was green as the Jetta entered the
intersection. Neither Husband nor Wife saw anyone in the crosswalk. Husband heard a
loud sound no more than 10 seconds later. As they drove through the intersection, they
saw a man lying underneath a car. Husband said, “[A]ll of a sudden I [saw] people on the
sidewalk just stop . . . .” Husband estimated there were more than 10 people standing
nearby. Wife estimated there were more than five or six people. Husband stopped the
car, and Wife called 911. They walked to the intersection and saw a bunch of
pedestrians.
Preuss testified concerning his patrol area. When the prosecutor asked
Preuss what was “the foot traffic like[]” on a Friday night on the street in question, he
answered the following: “It varies. If it’s a nice night it can be pretty busy with traffic.”
Detective Troy Sirmons testified as an expert in accident reconstruction,
i.e., speed and measurements. Sirmons analyzed the data supplied to him by the
investigating officers and conducted his own measurements. Sirmons determined Irving
was travelling between 38.19 to 46.61 miles per hour. He added that depending on
Cantoran’s location within the crosswalk, Irving could have been travelling between
37.49 and 48.43 miles per hour. He also stated the calculation could vary depending on
whether Cantoran’s body stopped naturally or was stopped by the parked car. Sirmons
opined Irving’s minimum speed could have been 45.49 miles per hour.
Mark Burry, a supervising criminalist, testified as an expert in the effects of
alcohol and cannabis on the human body as related to driving a motor vehicle. Burry
testified Irving’s blood was analyzed at 3:11 a.m. and he had 0.097 blood alcohol content
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and 9.050 nanograms per milliliter of THC and 120.356 nanograms per milliliter of THC-
2
COOH. Burry opined that at 11:45 p.m., that individual’s blood alcohol content would
be between 0.13 and 0.16 percent. Burry explained a person driving a vehicle in this
condition would be experiencing cognitive function impairments, including increased
impulsiveness, overconfidence, and risk-taking behavior and decreased sensory function,
including visual acuity, fine motor control, balance, and depth perception. Burry
admitted THC’s effects were less studied than alcohol and there was not a legal limit for
THC. He stated though a combination of alcohol and THC, both central nervous system
depressants, would increase effects and impairment. Based on a hypothetical mirroring
the facts of the case, Burry opined that based on the alcohol alone, the individual was too
impaired to safely operate a vehicle.
Irving offered the testimony of Brad Wong, an expert in speed and
automobile/pedestrian collisions and human factors of drivers. Wong determined Irving
was travelling between 35.25 and 36.6 miles per hour. Based on his analysis, Wong
could not say within reasonable engineering certainty that the vehicle was travelling
faster than 35 or 36 miles per hour. On cross-examination, Wong clarified the 35 to 36
miles per hour was a minimum speed calculation. He also calculated Irving was
travelling at a maximum speed of 51 miles per hour, but he did not include that
calculation in his report. He admitted it was “possibl[e]” Irving was travelling 51 miles
per hour but did not find that rate to be “within reasonable engineering certainty.”
The jury convicted Irving of counts 1 and 2 and found true he personally
inflicted great bodily injury. The jury acquitted him of count 3. At a bifurcated bench
trial, the trial court found true Irving suffered the prior conviction. The trial court
sentenced Irving to prison for six years and four months.
2
The parties stipulated Irving’s blood alcohol content was .097 percent and
contained 9.050 nanograms per milliliter of THC and 120.356 nanograms per millileter of
THC-COOH.
5
DISCUSSION
I. Sufficiency of the Evidence
Citing to and disputing the prosecutor’s statement during closing argument
that it “‘was a foot trafficked area[,]’” Irving argues insufficient evidence supports his
3
convictions because he did not proximately cause Cantoran’s injuries. We disagree.
“‘[W]e “examine the whole record in the light most favorable to the
judgment to determine whether it discloses substantial evidence—evidence that is
reasonable, credible and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” [Citations.] We presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.] [¶] . . . [Citation.] “[I]f the circumstances reasonably justify the jury’s
findings, the judgment may not be reversed simply because the circumstances might also
reasonably be reconciled with a contrary finding.” [Citation.] We do not reweigh
evidence or reevaluate a witness’s credibility.’ [Citations.] ‘Resolution of conflicts and
inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]”
(People v. Brown (2014) 59 Cal.4th 86, 105-106.)
“‘The criminal law . . . is clear that for liability to be found, the cause of the
harm not only must be direct, but also not so remote as to fail to constitute the natural and
probable consequence of the defendant’s act.’ (People v. Roberts (1992) 2 Cal.4th 271,
319 . . . .) In determining whether a defendant’s acts were the proximate cause of the
death of a human being, we ask whether the evidence sufficed to permit the jury to
conclude that the death was the natural and probable consequence of defendant’s act.
[Citation.]” (People v. Taylor (2004) 119 Cal.App.4th 628, 639-640.)
3
Irving does not contend there was insufficient evidence supporting any
other elements of the offenses. He only challenges the causation element. We limit our
discussion accordingly.
6
“[A]n ‘independent’ intervening cause will absolve a defendant of criminal
liability. [Citation.] However, in order to be ‘independent’ the intervening cause must be
‘unforeseeable . . . an extraordinary and abnormal occurrence, which rises to the level of
an exonerating, superseding cause.’ [Citation.] On the other hand, a ‘dependent’
intervening cause will not relieve the defendant of criminal liability. ‘A defendant may
be criminally liable for a result directly caused by his act even if there is another
contributing cause. If an intervening cause is a normal and reasonably foreseeable result
of defendant’s original act the intervening act is “dependent” and not a superseding
cause, and will not relieve defendant of liability. [Citation.] “[] The consequence need
not have been a strong probability; a possible consequence which might reasonably have
been contemplated is enough. [] The precise consequence need not have been foreseen; it
is enough that the defendant should have foreseen the possibility of some harm of the
kind which might result from his act.” [Citation.]’ [Citation.]” (People v. Funes (1994)
23 Cal.App.4th 1506, 1523.)
Here, in asserting there was no evidence of pedestrian foot traffic in the
area, we discern Irving’s argument to be there was an independent intervening cause
relieving him of criminal liability: it was unforeseeable there would be pedestrians
walking in the crosswalk against the do not walk signal. Irving suggests the bystanders
were motorists who, like Husband and Wife, parked and walked to the scene instead of
pedestrians. His claims are belied by the record.
The evidence demonstrated the incident took place in downtown San Jose
near the convention center. Preuss testified the street in question could be pretty busy
with foot traffic. Both Husband and Wife testified that as they drove past Cantoran, there
were already people gathering around the scene. Husband estimated this was no more
than 10 seconds after Irving hit Cantoran. From this evidence the jury could reasonably
conclude it was foreseeable there was pedestrian foot traffic in the area. This evidence
7
supported the conclusion Irving should have foreseen the possibility of pedestrians
walking in the crosswalk, even against the do not walk signal. (See Veh. Code, § 21950,
subd. (d) [vehicle driver “duty of exercising due care for the safety of any pedestrian
within any marked crosswalk or within any unmarked crosswalk at an intersection”].)
Cantoran and Maldonado walking in the crosswalk against the do not walk signal was a
reasonably foreseeable intervening dependent cause that did not relieve Irving of criminal
liability for his speeding while under the influence of alcohol. There was sufficient
evidence Irving proximately caused Cantoran’s injuries, and, thus, substantial evidence
supported his convictions.
II. Denial of Cross-Examination
Irving contends the trial court erred by denying his right to cross-examine
Sirmons concerning his two reports detailing the primary and associated collision factors.
Not so.
A. Background
Before the prosecutor offered Sirmons’s testimony, the prosecutor moved
to exclude any cross-examination of Sirmons as to who was at fault. During a hearing on
the motion, the prosecutor stated Sirmons prepared a report that estimated Irving’s speed.
The prosecutor explained Sirmons’s calculations were incorrect and his revised estimates
showed Irving’s speeds were lower. The prosecutor added Sirmons reviewed the police
reports and offered his opinion as to the collision’s primary factors of the collision. The
prosecutor intended to question him only as an expert in accident reconstruction
concerning speed and measurements. He did not intend to question Sirmons regarding
the collision’s cause because that was for the jury to decide.
Irving’s trial counsel stated he agreed with much of the prosecutor’s legal
authority and he did not intend to question Sirmons about fault. Counsel explained
though Sirmons prepared two reports. Counsel said that in his first report, Sirmons
8
miscalculated Irving’s speed and opined the primary collision factor was his speeding,
and the associated collision factors were his failure to yield to a pedestrian and driving
under the influence. Counsel stated that in his second report, Sirmons calculated his
speed to be lower and opined the primary collision factor was Cantoran violating the
pedestrian walk/don’t walk statute and the associated factors were Cantoran entering the
intersection against the light and Irving driving under the influence. Counsel asserted he
should be allowed to question him about those factors “without using the word ‘fault’ or
‘substantial factor.’”
The trial court ruled it would permit the prosecutor to examine Sirmons
about Irving’s speed and measurements. The court ruled Irving’s trial counsel could not
question him about the primary or associated factors. The court concluded trial counsel
could question him “very carefully” about his initial calculations and his revised
calculations and the errors he made.
B. Law
“‘California law allows expert testimony that is related “to a subject that is
sufficiently beyond common experience that the opinion of an expert would assist the
trier of fact.”’ [Citations.] Evidence Code section 805 permits such testimony to
embrace an ultimate issue in the case, but experts may not offer their legal conclusions to
the jury. [Citation.]” (People v. Spence (2012) 212 Cal.App.4th 478, 507.) “‘There is no
hard and fast rule that the expert cannot be asked a question that coincides with the
ultimate issue in the case. . . . ‘[T]he true rule is that admissibility depends on the nature
of the issue and the circumstances of the case, there being a large element of judicial
discretion involved. . . . Oftentimes an opinion may be received on a simple ultimate
issue, even when it is the sole one, as for example where the issue is the value of an
article, or the sanity of a person; because it cannot be further simplified and cannot be
9
fully tried without hearing opinions from those in better position to form them than the
jury can be placed in.” [Citations.]’ [Citations.]” (Id. at p. 509.) We review a trial
court’s ruling on the admissibility of expert testimony for an abuse of discretion. (Ibid.)
C. Analysis
Here, the trial court did not abuse its discretion by precluding Irving’s trial
counsel from cross-examining Sirmons about the primary and associated factors. The
sole issue in this case was causation. The jury heard evidence Irving was speeding, under
the influence of alcohol and marijuana, and driving erratically, and drove through a
crosswalk. The jury also heard evidence Cantoran was in the crosswalk while the do not
walk signal was illuminated. Based on the evidence presented at trial, the jury had to
determine whether Irving’s conduct was a substantial factor in causing Cantoran’s
injuries. (People v. Sanchez (2001) 26 Cal.4th 834, 848-849; CALCRIM No. 240.)
Sirmons’s opinions concerning the collision’s primary and associated
factors were an impermissible legal conclusion that coincided with the ultimate issue in
the case. (Carlton v. Department of Motor Vehicles (1988) 203 Cal.App.3d 1428, 1432
[police officer’s opinion driver was “‘most responsible’” for accident was a legal
conclusion and not proper subject for expert opinion].) Although Irving’s trial counsel
assured the trial court it would not use the words fault or substantial factor, that is
precisely what counsel sought to elicit from Sirmons. In his second report, Sirmons
opined the primary factor of the collision was Cantoran violating the pedestrian
walk/don’t walk statute. The jury could rely on that expert opinion testimony to conclude
Irving’s conduct was not a substantial factor in causing Cantoran’s injuries. That was an
ultimate issue in the case, and thus Sirmons’s testimony was impermissibly too helpful to
the jury in performing its duty. (Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th
1155, 1183 [trial court excludes expert opinions that invade jury’s province because in
some cases they are “too helpful”].)
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Additionally, Sirmons’s opinion testimony concerning the collision’s
primary and associated factors were impermissible because they could be further
simplified. The parties presented expert testimony about Irving’s speed and intoxication.
The jury also heard evidence Cantoran was on his cell phone as he approached the
intersection, and he walked in the crosswalk in violation of the pedestrian do no walk
signal. It was from this further simplified evidence that the jury could determine who
caused the collision. The jury was as competent as Sirmons to weigh all the evidence and
draw a conclusion on the issue of Irving’s guilt. (People v. Coffman and Marlow (2004)
34 Cal.4th 1, 77.)
4
Irving cites to People v. Glass (1968) 266 Cal.App.2d 222 (Glass). In that
case, defendant, who was intoxicated, was driving between 60 and 65 miles per hour on a
road with a posted speed limit of 45 miles an hour. (Id. at pp. 223-224.) Repair crews
worked at an intersection and the road was significantly narrowed. (Id. at p. 224.)
Defendant collided with a repair truck and killed two workmen. (Ibid.) There was
evidence there was no flagman present to warn motorists of the repair crews, no speed
reduction signs, and no barricades nearby to direct traffic out of the danger zone. (Ibid.)
The trial court excluded a traffic engineer’s expert witness testimony concerning the
safety measures because it concerned the ultimate issue at trial. (Id. at pp. 224-225.) The
Court of Appeal concluded this was error because the evidence could have shown that the
unsafe condition of the road was the accident’s sole cause. (Id. at p. 227.)
Unlike Glass, here Irving’s trial counsel sought to question Sirmons about
the primary and associated factors of the collision. In other words, counsel wanted to
elicit testimony Cantoran caused the collision by violating the pedestrian do not walk
signal and walking in the crosswalk against a red flashing hand. What the Glass court
4
Disapproved on other grounds in People v. Superior Court (1972) 6 Cal.3d
757, 765-766, footnote 7.
11
held was that the trial court erred by excluding evidence of the underlying conditions of
the collision. The trial court here admitted evidence of the underlying conditions of the
collision—Irving’s intoxication, speeding, reckless driving, and Cantoran’s violating the
pedestrian do not walk signal—and left it to the jury to decide the ultimate issue of who
caused the collision. Glass does not hold an expert can offer an opinion on the ultimate
issue of guilt. Thus, the trial court did not abuse its discretion by denying Irving the right
to cross-examine Sirmons concerning the collision’s primary and associated factors.
Because the court did not err, Irving suffered no prejudice.
III. Probation Ineligibility
Irving asserts the trial court erred by denying him probation based on the
mistaken belief he was presumptively ineligible. Alternatively, Irving asserts he received
ineffective assistance of counsel. We discuss these contentions below.
A. Background
In the probation report, the probation officer stated Irving had “[l]imited
eligibility pursuant to” Penal Code section 1203, subdivision (e)(3)—a trial court must
not grant probation to any person who “willfully inflicted great bodily injury” except in
unusual cases in which it serves the interests of justice. She indicated that although he
had suffered no felony convictions, he had suffered two alcohol related misdemeanor
convictions, one of which was for driving under the influence of alcohol, and he was on
probation when he committed the current offense. The probation officer stated there
were no mitigating circumstances and four aggravating circumstances, which were the
following: the manner in which Irving conducted the crime indicates planning; the crime
involved the actual taking of great monetary value; Irving’s convictions were of
increasing seriousness; and Irving’s probation performance was poor. The probation
officer stated she considered the mitigated term but Cantoran’s severe injuries
12
outweighed such a sentence. She recommended the trial court impose the middle term of
two years on count 1 plus five years for the great bodily injury enhancement for a total of
seven years in prison.
Irving’s trial counsel submitted a sentencing brief that requested the trial
court impose probation on 26-year-old Irving. Counsel explained Irving was exposed to
alcohol and methamphetamine in utero and he has suffered from developmental,
psychological, and behavioral problems his entire life. However, counsel did not address
whether Irving was eligible for probation.
At the sentencing hearing, the trial court indicated it had read the written
submissions. The prosecutor requested the trial court not impose a sentence less than six
years and four months. The prosecutor added probation was inappropriate based on the
fact Irving was on probation for driving under the influence of alcohol when he drove
intoxicated and hit Cantoran leaving him with “the brain capacity of a five-year-old.”
Irving’s counsel requested the trial court sentence Irving to probation.
Counsel stated Irving “disagree[d] with the probation officer’s report in many respects,
and recommendation.” Counsel disagreed Irving’s prior convictions establish a pattern or
that he lacked remorse. However, counsel did not dispute Irving was presumptively
ineligible for probation.
The trial court explained it was very familiar with the facts and spent
considerable time reflecting on the case. The court said, “it is very difficult because I
understand how young . . . Irving is and how he didn’t have fly [sic] malicious intent to
hurt anyone.” The court added though it had to consider Cantoran’s and his family’s
damage, trauma, and loss. After stating it had to consider the facts, law, and aggravating
and mitigating factors, the court said, “With respect to sentencing, probation is denied.”
The court sentenced Irving to the low term of 16 months on count 1 and a consecutive
term of five years on the great bodily injury enhancement for a total of six years and four
months in prison.
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B. Law
“The decision whether to grant or deny probation is reviewed under the
abuse of discretion standard. [Citations.] ‘An order denying probation will not be
reversed in the absence of a clear abuse of discretion. [Citation.] In reviewing the matter
on appeal, a trial court is presumed to have acted to achieve legitimate sentencing
objectives in the absence of a clear showing the sentencing decision was irrational or
arbitrary. [Citations.]’ [Citation.]” (People v. Ferguson (2011) 194 Cal.App.4th 1070,
1091.)
“‘Defendants are entitled to sentencing decisions made in the exercise of
the “informed discretion” of the sentencing court. [Citations.] A court which is unaware
of the scope of its discretionary powers can no more exercise that “informed discretion”
than one whose sentence is or may have been based on misinformation regarding a
material aspect of a defendant’s record.’ [Citation.] In such circumstances, . . . the
appropriate remedy is to remand for resentencing unless the record ‘clearly indicate[s]’
that the trial court would have reached the same conclusion ‘even if it had been aware
that it had such discretion.’ [Citations.]” (People v. Gutierrez (2014) 58 Cal.4th 1354,
1391 (Gutierrez).) “Where . . . a sentence choice is based on an erroneous understanding
of the law, the matter must be remanded for an informed determination. [Citations.]”
(People v. Downey (2000) 82 Cal.App.4th 899, 912.)
“Remand for resentencing is not required, however, if the record
demonstrates the trial court was aware of its sentencing discretion. [Citations.] Further,
remand is unnecessary if the record is silent concerning whether the trial court
misunderstood its sentencing discretion. Error may not be presumed from a silent record.
[Citation.] ‘“[A] trial court is presumed to have been aware of and followed the
applicable law.” [Citations.]’ [Citation.]” (People v. Brown (2007) 147 Cal.App.4th
1213, 1228-1229; Gutierrez, supra, 58 Cal.4th at p. 1390.)
14
C. Analysis
Irving asserts the trial court mistakenly believed he was presumptively
ineligible for probation and he forfeited appellate review of this issue because his trial
counsel failed to dispute that proposition in his sentencing brief or at the hearing. As a
result of counsel’s failure, Irving argues he received effective assistance of counsel.
It is true the probation officer stated Irving was presumptively ineligible for
probation because he willfully inflicted great bodily injury. It is also true his trial counsel
did not dispute the probation officer’s conclusion.
But we cannot conclude the trial court mistakenly believed Irving was
presumptively ineligible for probation based on the record before us. During the
sentencing hearing, the trial court stated, “[Irving] didn’t have [any] malicious intent to
hurt anyone.” Based on the court’s statement, we can reasonably conclude it did not
proceed based on the conclusion Irving “willfully inflicted great bodily injury.” Because
we presume the trial court was aware of and followed the applicable law, we cannot
conclude the court denied Irving probation based on the mistaken belief he was
presumptively ineligible for probation. Moreover, the fact the court weighed the
circumstances for and against probation indicates it was aware it had a choice.
Additionally, we cannot presume from a silent record the court erred. This
was not a situation where the court made any comments demonstrating it believed Irving
was presumptively ineligible for probation. In fact, the court made a factual finding that
removed him from presumptive ineligibility. Based on this record, we conclude the trial
court did not deny Irving probation under the mistaken belief he was presumptively
ineligible.
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DISPOSITION
The judgment is affirmed.
O’LEARY, P. J.
WE CONCUR:
BEDSWORTH, J.
MOORE, J.
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