Opinion
D057408
01-04-2012
THE PEOPLE, Plaintiff and Respondent, v. EDUL JINNAH AZEEZ et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCD220467)
APPEAL from judgments of the Superior Court of San Diego County, Robert F. O'Neill, Judge. Affirmed.
Appellants Edul Azeez and Khoi Bruster each pled guilty to voluntary manslaughter (Pen. Code, § 192, subd. (a)), and the court sentenced each to the upper term of 11 years in prison. Appellants assert the court erred in imposing the upper term. We affirm.
OVERVIEW
In the early morning hours of November 14, 1995, David Hessler was shot and killed in front of his home in University City when he interrupted the burglary of his locked vehicle. Because of the lack of evidence, the case remained unsolved for more than 13 years. In July 2008, latent fingerprints found on the victim's vehicle were matched to those belonging to Buzie Weimer. When contacted by the police, Weimer admitted to participating in the burglary, cooperated with the authorities, and identified the four other individuals present at the scene the night of the shooting, including Azeez and Bruster.
The identified suspects were charged with first degree murder including special circumstances allegations. Appellants, Weimer, and Alvin Figuracion (a minor prosecuted as an adult) pled guilty to voluntary manslaughter. Alvin Timbol, who shot the victim, pled guilty to second degree murder and admitted a gun use enhancement.
In 2010, the trial court sentenced appellants to 11-year prison terms, the upper term for voluntary manslaughter. The court sentenced Timbol to prison for 15 years to life for murder, plus 10 years (the upper term for the gun enhancement). For Figuracion, the court stayed the six-year middle term for voluntary manslaughter and granted him five years' probation with 477 days of custody credits. For Weimer, the court stayed the three-year lower term for voluntary manslaughter and granted him three years' probation with 521 days of custody credits.
On appeal, appellants assert the court erred in imposing the upper term, arguing that certain aggravating factors the court relied on were improper or inaccurate and the court disregarded many of the mitigating factors present in the case. We conclude the court did not abuse its discretion in sentencing appellants.
FACTUAL AND PROCEDURAL BACKGROUND
In November 1995 victim Hessler, age 30, was living with his fiancee Kimberly Kuney at a house on a very "quiet" residential street in the University City neighborhood of San Diego. Hessler worked for the University of California San Diego in the Department of Neuroscience as a computer programmer. The night before he was killed, he parked his Nissan Pathfinder in his driveway, with the rear of the car facing the garage. He did this for security reasons as his vehicle was loaded with expensive computer equipment he intended to use the next morning at a presentation to a group of neuroscientists.
About 2:00 a.m., Kuney awoke when she heard the front door open and saw the porch light go on. She then heard footsteps on the front walkway. Within seconds of the door opening, she heard a "pop" and knew it was a gunshot. Kuney then heard the sound of a car speeding away with tires squealing. Upon hearing Hessler calling for help, she went outside. There she saw Hessler, unable to talk and moaning, lying between a tree in front of their house and a hedge that separated their driveway from the neighbor's property. Kuney called 911 and returned to comfort her fiance. Hessler, who was wearing only a bathrobe, died shortly thereafter.
The initial investigation found several fingerprints on Hessler's Nissan but no other leads. In 2004 the prints were entered into a statewide database, but no matches were found. At Kuney's request in 2008, the investigation was reopened and the fingerprints were entered into state and nationwide databases. This time, a fingerprint collected next to the " 'popped' " door lock on Hessler's vehicle was matched to fingerprints belonging to Weimer.
Weimer, who cooperated fully with the authorities, identified Azeez as the driver and Bruster as a participant. Weimer explained that in 1995, he and "his usual crew," which included Azeez, Bruster and Timbol, had been breaking into cars. They targeted Nissans because they were easy to break into. Concerning the shooting itself, Weimer told an investigator that they all ran back to their car when the burglary was interrupted. As they were pulling away from the curb, the victim ran towards their car; Timbol then extended his body out of the car, and "turned back towards the victim and fired . . . ."
When contacted by the police, Azeez admitted being present the night Hessler was murdered. He indicated that he drove his car and four companions to the scene. Initially, he stayed in the car and left the task of breaking into the Nissan to the others, who "knew how to do it." Later, he went to the Nissan and looked inside. While standing next to the car, " 'things kind of got crazy . . . somebody freaked out'" and they ran back to his car. As he was " 'peeling out,'" he heard gunshots. According to Azeez, he and his companions were yelling at Timbol not to shoot. Azeez also told investigators that prior to this incident, he had been involved in a number of vehicle burglaries and that he, Timbol, Bruster and Weimer " 'did stuff [that was] bad'" during that time period. Normally, he was the driver as " 'that was [his] job back in the day.'" Latent fingerprints found on the victim's car matched Azeez's fingerprints.
According to the probation report Azeez also stated that he recalled being involved in two other incidents where a person had a gun. At sentencing Azeez strongly disputed the accuracy of this statement.
In a written statement submitted as the factual basis for his change of plea on February 19, 2010, Azeez admitted that prior to the night of the incident he, Bruster, Weimer and Timbol had participated in the burglary of other vehicles. On the night of November 14, 1995, he and his companions' "plan and intent was to find a vehicle, burglarize it, and steal property from the vehicle." They ended up in a neighborhood near University Towne Centre, saw Hessler's car and decided to burglarize it. After gaining entry to the locked Nissan and removing computer equipment, they heard a sound and returned to Azeez's car. "As [they] were driving away, [Timbol] drew a gun, leaned out a window, and fired." The victim, who was in the street, fell to the pavement. Azeez stated that prior to that moment, he did not know Timbol had a gun.
Bruster, who the authorities first contacted in December 2008, said he could not remember "one way or the other" if he had been at the scene of the burglary. He admitted that he had done "bad things" in 1995 and agreed that he "could have been there." He even indicated that he "could have been the shooter." Bruster later acknowledged that during this time he was friends with Azeez, Timbol and Weimer and maintained that he was " 'loaded for about two years straight.'" In a phone call monitored by the police between Bruster and Weimer, Bruster encouraged Weimer to be uncooperative, stating " 'whatever you can remember or whatever you want to forget. Do you hear what I'm saying?'" The authorities never found any physical evidence tying Bruster to the scene of the crime.
At Bruster's change of plea hearing on January 22, 2010, he submitted a signed written statement nearly identical to the statement Azeez submitted, except to note that he was a passenger, not the driver.
The sentencing hearings for Azeez and Bruster took place on March 26 and April 23, 2010. The District Attorney presented a sentencing statement which set forth details about the crime and outlined factors it considered supported an aggravated sentence of 11 years. It also included 19 letters written by the victim's father, fiancee, relatives, friends and work colleagues who provided moving accounts commenting on the victim's life; his many accomplishments; the devastating impact the crime had on their lives (including the accelerated death of the victim's mother and his fiancee's grandfather following the victim's death); the emotional toll the delay in prosecution had caused; and some thoughts on sentencing. Five of these individuals, including the victim's father and fiancee, addressed the court in person.
Azeez filed a lengthy sentencing memorandum and statement in mitigation arguing that probation, or in the alternative a three-year lower term, was the appropriate sentencing disposition. The memorandum concentrated on his background and accomplishments as an adult, including the facts that he had led a productive life since the incident in 1995, was married, had a child, and was employed full-time; had no prior criminal record; was 21 at the time of the crime; participated in numerous volunteer activities; was actively involved in his church; had obtained a real estate license; as a youth, he held several part-time jobs and attended college; and was truly remorseful. Azeez submitted 20 letters of support from family members, longtime friends and work colleagues who attested to his kindness, strong work ethic, religious faith, maturity and commitment to family and friends. Azeez's wife, sister and mother addressed the court in person; Azeez presented a letter of apology to the victim's family. The probation department filed a detailed report and recommended the low term of three years in prison.
Bruster filed a statement in mitigation, arguing that probation, or in the alternative a three-year lower term, was the appropriate sentencing disposition. The statement focused on Bruster's youthful age (19) at the time of the crime and his commitment to turning his life around following a period of drug experimentation and car burglaries. Since his early twenties, Bruster noted he has led a productive life, working as a firefighter; assisting the homeless at Thanksgiving; and consistently working in the audio-visual field where he trained and mentored colleagues. At the time of his arrest, he was a manager with Protech, and lived with his common-law wife and two daughters, ages six and 10. Bruster submitted 17 letters of support from family members, friends, and coworkers who stressed Bruster's devotion to his family, his willingness to assist others, and his work ethic. The probation department filed a detailed report and recommended a six-year middle term. In part, the recommendation was based on the probation officer's view that Bruster "has yet to demonstrate a believable level of remorse."
On April 23, 2010, the court sentenced Azeez to the upper term of 11 years. In selecting this term, the court noted its discretion to grant probation and outlined the factors that could support such a grant. Ultimately, the court concluded probation was unwarranted and found aggravating factors justified the imposition of the upper term. The court cited several reasons for this decision, including that the crime involved a high degree of cruelty, viciousness and callousness; the victim was particularly vulnerable; the crime involved sophistication and planning; and arguably Azeez, as the oldest of the participants, contributed to the delinquency of Figuracion, who was 16. During the sentencing hearing the court also referenced other criteria related to the crime that it found aggravating: the emotional devastation caused to the victim's family from the defendant's failure to come forward; the crime was part of ongoing criminal behavior arising from the car burglary activity; a gun was discharged in the course of the crime where there was no provocation; and Azeez was an active participant.
On the same day, the court sentenced Bruster to the upper term of 11 years. In selecting this term, the court acknowledged Bruster was eligible for probation but found it unwarranted, relying heavily on appellant's "flippant" attitude during the investigation and failure to come forward and take responsibility for the crime. The court found the crime was aggravated, citing to several reasons, including the crime evidenced sophistication and planning; the victim was particularly vulnerable; the crime involved a high degree of cruelty, viciousness and callousness; a gun was discharged; and four adult defendants induced a minor to assist in the crime. The court also noted that Bruster had committed prior crimes with the three older co-defendants, and he never reported the murder to the authorities and it was unsolved for 14 years. The court also noted that Bruster had committed prior crimes with the three older codefendants and he never reported the murder to the authorities and it was unsolved for 14 years.
DISCUSSION
We find unavailing the Attorney General's suggestion that appellants' challenge to their upper terms constitutes a challenge to their culpability for the crime, and thus do not address the prosecution's assertion a certificate of probable cause is required.
In 2007, in response to the United States Supreme Court's decision in Cunningham v. California (2007) 549 U.S. 270, the California Legislature amended our state's determinate sentencing laws and the Judicial Council amended the sentencing rules to conform to these amendments. As amended, the sentencing scheme continues to provide lower, middle and upper terms for specified crimes, but gives sentencing courts discretion to impose any of the three terms. With this change, the upper term is now the statutory maximum. The court is still required to state the reasons it selected a particular term, but it is no longer required to " 'include a concise statement of the ultimate facts that the court deemed to constitute circumstances in aggravation or mitigation.'" (People v. Sandoval (2007) 41 Cal.4th 825, 847.)
The trial court is "free to base an upper term sentence upon any aggravating circumstance the court deems significant, subject to specific prohibitions." (People v. Sandoval, 41 Cal.4th at p. 848.) Additionally, the aggravating circumstance need not be one that is specifically enumerated in the Rules of Court, so long as the application of the additional criteria is "reasonably related to the decision being made." (Cal. Rules of Court, rule 4.408(a).) Only a single aggravating factor is necessary to support the trial court's decision. (People v. Osband (1996) 13 Cal.4th 622, 728-729.) The court need not weigh aggravating and mitigating factors, nor state a reason for rejecting a mitigating factor. (People v. Sandoval, supra, 41 Cal.4th at p. 847; People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) Moreover, the court is deemed to have considered all relevant criteria unless the record affirmatively indicates otherwise. (Rule 4.409.) The reasons stated by the court in support of its sentencing choice must be established by a preponderance of the evidence. (People v. Weaver (2007) 149 Cal.App.4th 1301, 1313.)
All rule references are to the California Rules of Court.
"The trial court's sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.'" (People v. Sandoval, 41 Cal.4th at p. 847.) The court's sentencing decision is reviewed for an abuse of discretion. " 'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives . . . .' [Citation.] Concomitantly, '[a] decision will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.(People v. Superior Court (Alvarez) 14 Cal.4th 968, 977-978.) Even if a trial court has stated "both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper." (People v. Price (1991) 1 Cal.4th 324, 492.)
In exercising its sentencing discretion and selecting the upper term for both appellants, the trial court relied heavily on the facts of the crime itself: the crime reflected planning and sophistication (Rule 4.421(a)(8)); the victim was particularly vulnerable (Rule 4.421(a)(3)); a gun was used (Rule 4.408(a)); and the crime disclosed a high degree of cruelty, viciousness, or callousness (Rule 4.421(a)(1)). These are proper aggravating factors and were supported by substantial evidence.
As the trial court observed, in 1995, Azeez, Bruster, and their "usual" companions, Timbol and Weimer, regularly burglarized cars and stole property from the cars. On the night in question, they set out with this task in mind and drove around looking for a car, preferably a Nissan which they knew from prior experience were easy to break into. They found the victim's Nissan Pathfinder in a quiet residential neighborhood (with scant street lighting); parked partially obstructed by a tall hedge next to the victim's home; and quickly "popped" the lock with tools they brought with them. The victim, who apparently heard something, left the safety of his home in the dark of night (around 2:00 a.m.) to investigate, clad only in a bathrobe. As the victim walked into the street evidencing no provocative conduct, the appellants and their companions fled, hoping to avoid detection. Instead of simply driving away, Timbol leaned out of the car, looked back at the victim and fired, killing the victim. Because appellants had participated in burglary activity on multiple occasions with Timbol, the trial court could reasonably conclude they had to bear significant responsibility for the murderous conduct ultimately engaged in by Timbol on the night of the shooting. This evidence supports the trial court's finding the crime reflected planning and sophistication; the victim was particularly vulnerable; and an accomplice's use of a gun created a high danger of death warranting aggravated punishment for appellants.
From the sentencing hearings it is evident that the court was also influenced by the tremendous negative impact this crime had on the victim's family and loved ones. The court recognized that individuals touched by violent crime suffer emotionally, but noted that the delay in prosecution associated with the appellants' failure to come forward was particularly compelling in this case. Kuney's detailed impact statement outlining her own grief and that of her grandfather (who the family reported as giving up on life after the victim died) and the victim's mother (who was confined to a rest home, died shortly after the incident and took great comfort in her son's regular visits) fully support the trial court's conclusion. Indeed, at sentencing Azeez and his counsel acknowledged that the time delay had aggravated the emotional toll the family experienced in this case. Appellants' assertion that this evidence does not show the crime itself was aggravated misses the point. The impact associated with the appellants' failure to come forward was aggravating and a proper consideration under Rule 4.408(a).
With respect to Bruster, the court also took into account Bruster's lack of cooperation and "flippant" attitude during the investigation as supported by his comments to police investigators and his monitored phone call with Weimer.
Appellants argue the court relied on improper factors to aggravate the sentence, including using an element of the voluntary manslaughter offense (i.e., the victim's death); referring to the fact that a defendant was armed (even though appellants were not personally armed); and noting that appellants had received a substantial benefit from their plea bargains. To the extent the court may have considered an improper factor to aggravate these sentences, there was no prejudice because one aggravating factor is sufficient to support the selection of an upper term, and there is no reasonable probability the court would have selected a lesser sentence had it known that some of its reasons were improper. The record makes clear the court was convinced an upper term was warranted based on its careful evaluation of such factors as sophistication, victim vulnerability, cruelty, gun use by an accomplice, and the elevated emotional impact on the victim's family from appellants' failure to come forward.
Both appellants entered Harvey waivers (People v. Harvey (1979) 25 Cal.3d. 754) when they entered their guilty pleas. Accordingly, the court could properly consider the underlying facts of the crime itself and any dismissed enhancements.
Likewise, appellants' assertion the court failed to consider mitigating factors fails as the trial court is no longer required to weigh mitigating and aggravating factors. In any event, the record reveals the trial court was fully aware of its discretion and in selecting the upper term carefully considered the law, argument of both counsel, the probation reports, the letters of support filed on behalf of appellants, and Azeez's statement to the court and statements by his family. The fact that another judge may have selected a different term for either or both appellants does not advance appellants' position. Appellants have failed to meet their burden of showing the trial court's conclusion was irrational and arbitrary and we find no abuse of discretion.
Azeez argues that if the matter is remanded, he should be sentenced by a different judge because of a statement the trial judge made at sentencing noting that the judge and Azeez's counsel "are a minority, white males who have served in the military." He contends the statement is insensitive and asserts the court selected an upper term because Azeez and Bruster are African-American. Because we have affirmed the sentence, we need not address the argument concerning the court's statement. Moreover, having thoroughly reviewed the record, there is nothing remotely supporting the contention ethnicity was a factor in the court's sentencing decision.
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DISPOSITION
Judgments affirmed.
HALLER, J. WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.