Opinion
F078573
09-04-2019
THE PEOPLE, Plaintiff and Respondent, v. ROSS MURDOCK COX, Defendant and Appellant.
Kahn, Soares & Conway, Jennifer E. Dunne, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or reiving on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14CM-5742)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kings County. Steven D. Barnes, Judge. Kahn, Soares & Conway, Jennifer E. Dunne, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Meehan, J. and Snauffer, J.
-ooOoo-
Appellant Ross Murdock Cox appeals from the sentence imposed on his conviction in case No. 14CM-5742 for assault by force likely to produce great bodily injury (Pen Code, § 245, subd. (a)(4)) after the court found he violated his probation in that case and an unrelated case (case No. 15CM-0727) in which he pled guilty to driving under the influence of alcohol (Veh. Code, § 23152, subd. (b)) with a prior conviction.
All further statutory references are to the Penal Code, unless otherwise indicated.
On appeal, Cox contends the court erred in imposing the aggravated term on his assault conviction. We affirm.
FACTS
On September 13, 2014, at approximately 12:45 a.m., two men were in a truck at a drive-through line at a fast food restaurant in Lemoore when a female passenger fell out of the vehicle ahead of them and they got out to help her. As the men walked back to their truck, Cox began yelling at them from two vehicles back. Cox kept yelling at the men, walked over to them and pushed one man. The man got Cox in a headlock and spun away. The man stepped back, but Cox headbutted him on the nose, breaking it. Cox fled but early the following morning a police officer contacted him at a bar. Cox told the officer he was only in town for the evening having a few beers and that he did not know anything about a fight at the fast food restaurant the previous night.
On March 18, 2015, during a traffic stop, the officer noticed that Cox's speech was slurred, and his eyes were watery and bloodshot. He was subsequently determined to have a 0.14 percent blood-alcohol content. Cox was arrested for driving under the influence and on an outstanding warrant for assault.
On July 27, 2015, the Kings County District Attorney filed a first amended complaint in case No. 14CM-5742 charging Cox with battery with serious injury (§ 243, subd. (d)/count 1), assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4)/count 2) and misdemeanor battery (§ 242/count 3). Counts 1 and 2 also alleged a great bodily injury enhancement (§ 12022.7, subd. (a)).
On the same date, in case No. 14CM-5742, Cox pled guilty to the assault charge in count 2 in exchange for the dismissal of the remaining counts and enhancements in that case and a grant of probation with a referral to the Kings County Collaborative Justice Treatment Court (Collaborative Court). In case No. 15CM-0727, Cox pled guilty to driving under the influence of alcohol.
On September 29, 2015, in accord with his negotiated plea in case No. 14CM-5742, the court placed Cox on felony probation for three years on condition he serve two days in jail, with credit for time served, and complete the Veteran's Treatment Program as directed by the Collaborative Court. In case No. 15CM-0727, the court placed Cox on misdemeanor probation for three years.
On August 29, 2017, during a probation search, two firearms and ammunition were found at Cox's residence (case No. 17CMS-6257.)
On April 2, 2018, the probation department issue a notice of probation violation alleging Cox violated his probation in case No. 14CM-5742 by possessing two firearms and ammunition.
On July 19, 2018, Cox sent a text to C.M., a witness in his upcoming preliminary hearing in case No. 17CMS-6257, warning her not to testify at the hearing (case No. 18CM3666). He was subsequently charged with misdemeanor dissuading a witness.
After the preliminary hearing in case No. 17CMS-6257, the court held Cox to answer on the charges in that case, including a charge of being a felon in possession of a firearm (§ 29800, subd. (a)(1)) and it found him in violation of his probation in case Nos. 14CM-5742 and 15CM-0727.
On October 2, 2018, Cox pled guilty to possession of a firearm by a felon in case No. 17CM-6257 and to misdemeanor dissuading a witness (§ 136.1, subd. (a)(1)) in case No. 18CM-3666.
Cox's probation report indicated that in an interview with a probation officer, Cox did not appear remorseful and blamed the incident on the victim and his friend. According to the report, Cox told the officer, " '[t]his whole thing is a joke. Two drunk guys in the drive-thru and I'm the one that gets in trouble for assaulting them.' " Cox also stated, " 'Him and his friends were drunk in the drive-thru and sitting there for 15 minutes. They were sitting in the drive-thru and the guy shoved me[,] and it escalated from there. They called the police and the video shows they were in the drive-thru running around and somehow[,] I get pinned with a felony assault charge.' ... 'I lost my job because of this ....' "
On October 31, 2018, at Cox's sentencing hearing, defense counsel advised the court that Cox wanted to make a statement. The court replied it would not allow him and it stated it intended to impose an aggregate term of three years eight months, the middle term of three years on Cox's assault conviction, a consecutive eight months on his possession of a firearm conviction and concurrent terms on each of his two misdemeanor convictions. Defense counsel then argued at length regarding the mitigating circumstances of Cox's offenses, except for his assault offense. At the end of her argument, she again asked the court to allow Cox to read his statement, which she characterized as "telling and important to consider."
The court responded:
"Tell you what I'll do, [defense counsel]. I've given you my indicated sentence. He could do 4 years 8 months in state prison. My indicated sentence is an indicated sentence. There's no legal requirement that I hear from your client today at sentencing; however, if you think I need to hear from him, I'm happy to do that, but you face the probability
that I may deviate from my indicated sentence. [¶] Do you understand what that means?"
The court then told defense counsel that one thing she "suspiciously" did not address was Cox's conviction for assault, which was the reason he was going to prison. The court also stated the assault offense was an "extremely serious offense," that Cox received a tremendous break by being sent to the Collaborative Court, and while "that's going on," Cox possessed a firearm and ammunition, which caused the court grave concern for the safety of the public. The court stated that to its knowledge, the victim of his assault was totally innocent and Cox did not know him. After a few more comments, the court agreed to hear Cox's statement. However, after consulting with Cox, defense counsel announced that Cox would not read his statement after all.
The district attorney argued the court should impose the upper term on Cox's assault conviction because Cox lacked remorse and his assault could have been a strike conviction based on Cox having broken the victim's nose. After a statement by C.M., the victim of his dissuading a witness offense, the court granted Cox's renewed request to read his statement.
During the reading of the statement, the court sustained an objection the district attorney interposed when Cox began to attack C.M.'s character. After the court got Cox to focus on the circumstances of his assault offense, Cox stated that all the facts of the case were never presented to the court because he took the plea deal so he could be referred to the Collaborative Court. He also claimed that although he complied with the program, he was told the only reason he was let go was because he was not a "good fit." With respect to the assault, Cox asserted the victim and his friend were out of their truck for 15 minutes and he repeatedly had to honk his horn and tell them to "please" get in the truck. He was about to call the police when he saw one man walk around the "car" again. Cox got out of his vehicle and walked the man to his truck. The man shoved Cox and swung at him. Cox pushed him away. When the other man got in his face, Cox's first instinct was to create space between them because the man surprised him. Cox became scared, did not know what was happening, and left. After stating that he had to live with the incident for the past four or five years, Cox began talking about irrelevant matters and the court again sustained an objection by the district attorney.
The court and Cox then exchanged a few comments before the court stated,
" ... After the Court's initial review of the probation report and all of the matters in the Court's file, the only mitigating factor the Court can find in this case is that in 17CMS6257, the defendant entered a plea at an early stage in the proceedings; however, it didn't change the facts of the underlying probation case which was a case, and I said it before, it was a serious felony, and what I mean by that, it's not that it's a serious felony listed in 1192.7, even if it is or isn't, it's a serious felony in nature as the event.
"In and of itself, the defendant entered a guilty plea to that and he apparently denied it even occurred. Apparently[,] he told the officers he was never there when that happened.
"He shows absolutely no remorse. The Court finds the defendant to be without any credibility whatsoever. He does nothing but blame everybody else for everything in his life. He completely refuses to obey the law in any way, shape, or form. Since that offense occurred, he's committed these other three offenses.
"With respect to the Court's indicated, I'm going to deviate from that. In case 14CM5742 as it's within my discretion to pick the triad to be imposed in this case, for violations alleged in Count 2, [section] 245[, subd.] (a)(4) ..., the defendant is denied reinstatement on probation, sentenced to the California State Prison for the upper term of four years ...."
The court also imposed a consecutive eight-month term on his felon in possession of a firearm conviction in case No. 17CM-6257 and sentenced him to time served on each of his misdemeanor convictions.
DISCUSSION
California Rules of Court, rule 4.435(b)(1) in pertinent part provides:
All further rules references are to the California Rules of Court. --------
"On revocation and termination of probation ... when the sentencing judge determines that the defendant will be committed to prison ...: [¶] ... [¶] The length of the sentence must be based on circumstances existing at the time supervision was granted, and subsequent events may not be considered in selecting the base term."
Cox contends the court erred in imposing the upper term on his assault conviction because it relied on events that occurred after it granted him probation. He cites to the following statements in support of this contention: (1) the court's statement that if Cox made a statement there was a " 'probability' " the court would deviate from its indicated sentence; (2) its statement that Cox had " 'absolutely no remorse;' " (3) its statement that Cox " 'does nothing but blame everybody else for everything in his life;' " and (4) its statements that Cox " 'completely refuses to obey the law in any way, shape, or form' and 'since [the assault] offense occurred, [Cox] committed these other three offenses.' " He cites People v. Colley (1980) 113 Cal.App.3d 870 (Colley) in support of this contention.
In People v. Scott (1994) 9 Cal.4th 331, the Supreme Court held the failure to object in the trial court forfeits on appeal "claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons." (Id. at p. 353.) "[C]laims deemed [forfeited] on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner." (Id. at p. 354.) However, "there must be a meaningful opportunity to object to the kinds of claims otherwise deemed [forfeited]." (Id. at p. 356.)
When the court sentenced him on his assault conviction, Cox did not object to the court considering any of the events he contends occurred after the court granted him probation. Further, after the court sentenced him on that conviction, defense counsel had the opportunity to interpose an appropriate objection during the time the court methodically sentenced Cox on each of his convictions in the other three cases. Therefore, since Cox had a meaningful opportunity to object, he forfeited his challenge to the sentence imposed on his assault conviction. (Cf. People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1223-1224 [prosecutor not given meaningful opportunity to object to grant of probation where court announced its decision to place defendant on probation, defendant accepted probation terms, and court immediately declared a recess].) However, even if Cox's challenge to his sentence were properly before us, we would reject it.
It is unclear what the court meant when it stated that if Cox gave a statement there was a "probability" the court might deviate from its indicated sentence. The court may have meant that Cox risked disclosing circumstances about his assault offense that might impact the term the court imposed, which it was entitled to consider. (Rule 4.409 [relevant circumstances must be considered by the sentencing judge].) The court may have meant that the statement might affect its tentative decision to impose concurrent sentences on his misdemeanor convictions. In any case, the court did not allude to Cox's reading of his statement as a reason for imposing the aggravated term on his assault conviction. Further, although Cox's statement showed he continued to lack remorse and not take responsibility for his conduct, the court properly relied on these circumstances and the seriousness of Cox's offense in imposing the aggravated term because all three circumstances were amply supported by information in Cox's probation report. Although not entirely clear on this record, to the extent the court relied on Cox's convictions for dissuading a witness and being a felon in possession of a firearm to impose the aggravated term on Cox's assault conviction, there was a violation of rule 4.435(b)(1).
" 'When a trial court has given 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. Weaver (2007) 149 Cal.App.4th 1301, 1325.) Only a single aggravating factor is required to impose the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.)
The court's comments indicate its main concern in imposing the aggravated term was the seriousness of Cox's offense, which he exacerbated by his lack of remorse and failure to take responsibility for his conduct, which, as noted above, are supported by the record. Since the court did not find any mitigating circumstances, it is not reasonably probable the court would have imposed the middle term if it had not considered the two convictions that occurred while he was on probation. (Cf. People v. Castellano (1983) 140 Cal.App.3d 608, 614-615 [alleged sentencing error not prejudicial where trial court found four aggravating circumstances and no mitigating circumstances].)
In Colley, supra, 113 Cal.App.3d 870, the defendant was convicted of first degree burglary and placed on probation. After he violated his probation, the trial court sentenced him to prison for the middle term of three years. The court, however, recalled the sentence and again placed him on probation. (Id. at pp. 871-872.)
The defendant subsequently violated his probation again by committing petty theft. In imposing the aggravated term, the trial court cited the defendant's rejection of the court's leniency and his extensive criminal background and record. (Id. at p. 872.) The Colley court found the trial court violated rule 4.435(b)(1) by relying on the defendant's conduct that occurred after the defendant was placed on probation. (Id. at p. 873.) In finding the error was not harmless, the Colley court stated: "By its interim selection of the middle term, the court had necessarily determined that [the defendant's] record was not then sufficient to warrant imposition of the upper term." (Id. at 874.)
Colley is easily distinguishable because the trial court here had not previously determined that Cox's record when it placed him on probation was not then sufficient to warrant imposition of the aggravated term. Thus, we conclude that if sentencing error occurred, it was harmless.
DISPOSITION
The judgment is affirmed.