Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Marin County Super. Ct. No. SC142203A
Parrilli, Acting P. J.
Christopher Killebrew appeals the sentence imposed after he entered a guilty-plea to the charge of second degree robbery, in violation of Penal Code section 211, and admitted allegations he personally used a firearm (§§ 12022.53, subd. (b), 1203.06, subd. (a)(1)(B)) and inflicted great bodily injury (§§ 12022.7, subd. (a), 1203.075, subd. (a)(2).) Appellant contends: (1) the trial court abused its discretion by failing to impose the mitigated term; (2) the trial court improperly based the upper term on factors also used to justify sentencing enhancements; and (3) the trial court abused its discretion by failing to strike the enhancement for inflicting great bodily injury, pursuant to section 1385. We affirm.
Further statutory references are to the Penal Code unless otherwise noted.
FACTS & PROCEDURAL BACKGROUND
The probation report describes the events of the crime as follows: On June 20, 2005, officers responded to reports of a shooting at a homeless encampment deep in San Rafael’s Gerstle Park. After the shooting, the victim, Barry Smith, walked down a trail and out of the park assisted by witness Schrader. Schrader also lived in the homeless encampment with his girlfriend, Liane Lundberg. Smith received emergency treatment at the scene and was then taken to hospital to undergo surgery. Smith and Schrader described the perpetrators to police. An officer recognized appellant by a sketch developed from the descriptions provided. Lundberg also identified appellant and said she had known him for a few years. Appellant’s co-defendant Frost was identified later.
Smith stated he sells small amounts of methamphetamine to “people that he knows.” Appellant and Frost went to Smith’s encampment to ask if he would trade methamphetamine for a CD player they had in their possession. Smith declined, and asked appellant and Frost to leave. Smith said they returned ten minutes later as he lay under his tarp. Smith again refused to trade. Appellant produced a handgun and demanded Smith give them money and drugs. Smith gave them fifteen dollars and told them he had no drugs. Frost told appellant to shoot Smith. Appellant fired a shot that grazed Smith’s hand. Smith then gave them his glass methamphetamine pipe. Frost again urged appellant to shoot Smith. According to Smith, appellant pointed the gun at him and shot him once at close range (3-4 feet). The bullet entered the lower left chest area and exited near the left hip. Appellant and Frost were seen running from the scene by Schrader, who had been in his tent till he heard the shots. Lundberg told police she had seen appellant and Frost hanging around near Smith’s campsite. She went into her tent, and then heard Smith say, “No, I don’t have any. I don’t have any!” followed by two shots. Appellant later surrendered to police at his brother’s house in Novato.
A fourth amended complaint filed on March 20, 2006, charged appellant on the single count of robbery, in violation of section 211. The complaint also alleged: the offense is a serious felony under section 1192.7(c)(19); the offense is a violent felony under sections 667.5(c)(9) and 1170.12(a)-(c); appellant intentionally and personally used a firearm in the commission of the offense under sections 12022.53(b) and 1203.06(a)(1)(B); and, appellant inflicted great bodily injury in the commission of the offense under sections 12022.7(a) and 1203.075(a)(2). On the same day, appellant entered a plea of guilty as charged. The People agreed to dismiss with Harvey waivers two petitions to revoke probation in appellant’s two older cases and not to pursue an attempted murder charge in relation to the current offense. Appellant acknowledged he faced a maximum exposure of 18 years: 2, 3, or 5 years on the robbery count, a 10-year firearm enhancement under section 12022.53(b), and a 3-year enhancement for infliction of great bodily injury under 12022.7. Appellant also orally and in writing waived his Blakely rights to a jury trial on sentencing factors in aggravation.
People v. Harvey (1979) 25 Cal.3d 754.
Blakely v. Washington (2004) 542 U.S. 296.
Before sentencing, appellant filed a statement in mitigation (“statement”) requesting the court impose a 2-year sentence on the robbery conviction, 10-years for the gun-use enhancement, and stay the 3-year great bodily injury enhancement, for a total term of 12 years. Appellant’s statement attached a report by a crime scene analyst opining it was possible the victim’s chest wound was due to a ricochet and not caused by a direct gunshot. The statement described appellant’s “horrific childhood” and his history of mental health problems. The statement also attached a psychological assessment by Dr. Jules Burstein. Dr. Burstein reported appellant tested in the 19th percentile on a full scale IQ test, indicating a low IQ in areas correlating “with decision-making, deliberation, and weighing alternatives as prerequisites to engaging in any particular action.” Dr. Burstein described appellant as a “very troubled young man” and a “ ‘throw-away child’ who was cheated of a normal childhood.” Burstein found appellant satisfies the criteria for an array of mental disorders, including Bipolar Affective Disorder or Substance-Induced Psychosis, and Chronic Drug Dependence.
The statement argued the following factors in mitigation concerning the crime: the crime was committed due to an unusual circumstance which is unlikely to recur [failure to take psychotropic medication, coupled with lack of sleep, overuse of drugs, and the influence of co-defendant Frost]; the crime was committed under duress [appellant was under the influence of drugs and his mental health problems meant he could be easily manipulated]; the defendant was influenced by others to participate in the crime [appellant had no history of either robbery or gun use, the gun belonged to co-defendant Frost, and Frost urged appellant to shoot the victim; and there was no intent to harm the victim [appellant only meant to scare the victim, not shoot him in the chest].
The statement also argued the following factors in mitigation concerning the defendant: the defendant has an insignificant criminal history [one felony conviction for possession of drugs and two misdemeanor convictions as an adult, as well as two sustained petitions as a minor]; the defendant suffered a mental condition that significantly reduced his culpability [as outlined by Dr. Burstein]; the defendant voluntarily acknowledged wrongdoing prior to arrest [appellant surrendered to police and pled guilty before the conclusion of the preliminary hearing]; defendant would have been granted probation but for his statutory ineligibility; and, defendant’s prior performance on probation was satisfactory. Also, the statement argued the trial court should strike the enhancement for great bodily injury pursuant to section 1385.
The probation report listed two factors in aggravation with respect to the crime: the crime involved an unusual degree of cruelty and callousness because the victim surrendered his crack pipe without a struggle, and the defendants planned the crime before they went to the victim’s campsite. Also, the probation report lists four factors in aggravation relating to defendant: the defendant has engaged in conduct which indicates a serious danger to society, including gang involvement; the defendant has numerous prior convictions (as an adult, two prior misdemeanors and one prior felony conviction, plus a sustained juvenile petition for misdemeanor second degree burglary); the defendant was on probation when the crime was committed; and, defendant’s prior performance on probation was unsatisfactory. In addition, the probation report stated appellant’s claim the victim was hit by a bullet fragment from a ricochet was speculative and gave it little weight in mitigation. However, the probation report listed appellant’s drug-induced mental condition as a factor in mitigation, as well as the fact he surrendered to police and was cooperative when arrested. Nonetheless, the probation report concluded the factors in aggravation were decisive and recommended imposition of the upper term plus all enhancements.
At the sentencing hearing on June 28, 2006, the trial court stated it had read and considered the probation report, the defense statement in mitigation, a ballistics report, Dr. Burstein’s and other medical reports, and a statement from appellant. Regarding sentencing, the prosecutor argued “[t]his is not a mitigated case” and disputed appellant’s factors in mitigation. The prosecutor stated appellant shot the victim twice; she stated appellant claimed to act under the influence of Frost, yet he produced the gun and demanded money and drugs. The prosecutor also disputed the plea was entered early in the proceedings and stated appellant’s performance on probation has not been satisfactory. Defense counsel reiterated the factors in mitigation set forth in his settlement statement and also emphasized the issue of sentencing fairness between appellant and his co-defendant Frost, who faced a maximum of 8 years.
Before imposing sentence, the trial court stated: “There are multiple provisions of the law that absolutely prohibit this Court from granting probation. Probation is denied. [¶] The real issue in this sentencing is not that, but whether this is a midterm, aggravated term, or mitigated term case. And in that connection, I have very carefully read and considered the factors that the law requires the Court to consider, I’ve heard the arguments of counsel, and read the statement in mitigation, and placing the greatest reliance on [appellant’s] history of violent and threatening behavior, and the viciousness of this crime, that is Mr. Smith apparently had complied with the robbery demands and he got shot anyway, I think this is an aggravated case, and I’m going to treat it that way.” The court then imposed the aggravated term of 5 years on the section 211, enhanced by 10-years for gun use pursuant to section 12022.53(b) and by 3-years for great bodily injury pursuant to section 12022.7(a), for a total term of 18 years. Appellant filed a timely notice of appeal on July 28, 2006.
DISCUSSION
A. Imposition of Upper Term
Appellant contends the trial court abused its discretion by imposing the upper term of five years for robbery. Essentially, he contends the factors presented in mitigation were predominant and so the trial court should have imposed the mitigated two-year term.
Determination of the appropriate term is within the trial court’s broad discretion and must be affirmed unless there is a “showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316; People v. Welch (1993) 5 Cal.4th 228, 234.) “Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citation], and may balance them against each other in qualitative as well as quantitative terms. [Citation.]” (People v. Roe (1983) 148 Cal.App.3d 112, 119.) One factor alone may warrant imposition of the upper term, (People v. Osband (1996) 13 Cal.4th 622, 728-729; People v. Kellett (1982) 134 Cal.App.3d 949, 963), and the trial court need not state reasons for minimizing or disregarding circumstances in mitigation, (People v. Salazar (1983) 144 Cal.App.3d 799, 813). Under applicable law at the time of appellant’s sentencing, the trial court was obliged to weigh both mitigating and aggravating factors in determining which term to impose. (Former California Rules of Court, rule 4.420; § 1170, subd. (b).) “The middle term must be selected unless imposition of the upper or lower term is justified by circumstances in aggravation or mitigation.” (Former California Rules of Court, rule 4.420, subd. (a).) “Selection of the lower term is justified only if, considering the [relevant] facts, the circumstances in mitigation outweigh the circumstances in aggravation.” (Id. at subd. (b).)
Effective March 30, 2007, the Legislature passed SB 40 in response to the United States Supreme Court’s decision in Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 868] [holding California’s sentencing scheme violates the Sixth Amendment].) Under SB 40, imposition of the appropriate term rests within the sound discretion of the court, and the middle term is no longer mandated unless a judge finds factors in mitigation or aggravation. (2007 Cal ALS 3.)
Here, the trial court indicated it had read and considered all materials submitted by appellant in request of mitigation. The court also indicated it had read the probation report, which identified two factors in aggravation relating to the crime—the crime involved an unusual degree of cruelty and callousness because the victim surrendered his crack pipe without a struggle, and the defendants planned the crime before they went to the victim’s campsite—and four factors in aggravation relating to the defendant. The trial court also stated appellant’s “history of violent and threatening behavior, ” as well as the “viciousness of this crime, ” featured heavily in its decision to impose the upper term. Appellant disputes he had a “history of violent and threatening behavior.” However, there is sufficient basis for the trial court’s finding in the violent or aggressive incidents described under appellant’s juvenile and adult criminal history outlined in the probation report. Also substantiating the trial court’s finding is appellant’s admitted propensity for violence, his gang affiliation, and his acceptance of the sometimes violent behavior associated with such affiliation, as reported in clinical evaluations regarding appellant’s suitability for drug treatment. In sum, in the absence of a clear showing that the trial court’s finding was arbitrary or irrational, we decline to set it aside on review. (People v. Welch, supra, 5 Cal.4th at p. 234.) We thus uphold its imposition of the 5-year aggravated sentence.
The fact “[t]he defendant has engaged in violent conduct that indicates a serious danger to society” is a factor in aggravation under California Rules of Court, rule 4.421(b)(1). (Id.)
B. Dual-Use Prohibition
Pursuant to section 1170, “[t]he court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.” (§ 1170, subd. (b).) Appellant contends the trial court violated section 1170’s dual-use prohibition by imposing the upper-term based on aggravated factors that were also used to impose the two sentencing enhancements for gun use and grievous bodily injury. (See Cal. Rules of Court, rule 4.420(c) [“To comply with section 1170(b), a fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so.”].) Appellant asserts two of the six factors in aggravation listed in the probation report violate the dual-use prohibition—(1) the crime involved an unusual degree of cruelty and callousness; (2) the crime involved planning. According to appellant, the first factor violates the dual-use prohibition because it directly relates to his use of the gun and his infliction of bodily injury, and the second because it was based on a gun being taken to the campsite.
We do not concur in appellant’s characterization of the first factor as based on his use of the gun and his infliction of great bodily injury. California Rules of Court, rule 4.421(a)(1) states this factor in aggravation in full as follows: “The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness.” With respect to this factor, the trial court emphasized it was primarily concerned with the “viciousness” of the crime. The facts of the offense bear this out. Appellant used the gun in the course of the robbery to threaten the victim into complying with his demands for money and drugs. When appellant produced the gun the victim surrendered fifteen dollars, but denied he had any drugs. Escalating the threat, appellant shot at the victim and grazed his hand. The victim then gave up his methamphetamine pipe. At that point, the robbery was complete. Nevertheless, appellant then shot the victim in the chest at close range.
Appellant’s action goes beyond mere use of the gun or infliction of bodily injury: rather, it was a gratuitous act of extreme violence exhibiting unusual cruelty, viciousness or callousness. Under these circumstances, the trial court did not violate the dual-use prohibition by basing the upper term for robbery in part on the viciousness or callousness of the crime, while at the same time imposing gun-use and great-bodily-injury enhancements. (People v. Collins (1981) 123 Cal.App.3d 535, 538-539 [court imposed aggravated term for kidnapping based on viciousness and callousness of crime as well as an enhancement for gun use—no dual use where appellant held cocked gun to his victim’s head over period of several hours during stand-off with police]; cf. People v. Harvey (1984) 163 Cal.App.3d 90 116-117 [viciousness and callousness as aggravating factor in imposing upper term of nine years was proper where victim was attacked under circumstances where he had no opportunity to defend himself, there was no provocation of any sort, and where victim was shot without any explanation, because such qualities are not inherent to the charged offense of attempted murder by use of a firearm].)
The cases cited by appellant where courts applied the dual-use prohibition to the use of a weapon are all inapposite because none involved use of a firearm in such a way that the court found the crime to be unusually vicious or callous. (People v. Roberson (1978) 81 Cal.App.3d 890, 893-894 [where defendant was convicted of robbery of a Jolly Roger Restaurant, court must decide whether armed allegation is to be used “to aggravate or to enhance, one or the other, but not both as was done here”]; People v. Young (1983) 146 Cal.App.3d 729, 734 [in sentencing on conviction for assault with a deadly weapon on a peace officer, the trial court’s reliance on fact defendant fired on a police officer thereby threatening great bodily harm as aggravating factors was dual use of facts where the trial court had included a two-year enhancement for firearm use]; People v. Calhoun (1981) 125 Cal.App.3d 731, 734 [dual use of facts where court imposed aggravated term for threatening victim with great bodily injury while enhancing his term for using a gun and only threat to the victim referred to use of the gun]; People v. Bennett (1981) 128 Cal.App.3d 354, 359 [dual use of facts where court imposed aggravated sentence based on threat of great bodily harm during robbery, where only evidence of threat was the gun use itself]; People v. Smith (1980) 101 Cal.App.3d 964, 967 [trial court improperly used fact of appellant’s firearm use both to impose the upper term for robbery and as a basis for a firearm enhancement].)
Nor do we accept appellant’s assertion that the trial court’s reliance on the aggravating factor of “planning” was necessarily based on a gun being taken to the campsite. However, even if the trial court did rely on planning as an aggravating factor based on the fact appellant took a firearm to the robbery, any error was harmless. “ ‘Improper dual use of the same fact for imposition of both an upper term and a consecutive term or other enhancement does not necessitate resentencing if “[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error.” ’ [Citation.] Only a single aggravating factor is required to impose the upper term[.] [Citation.]” (People v. Osband, supra, 13 Cal.4th at p.728.) Here, the trial court properly relied on appellant’s history of violent conduct in order to impose the aggravated term. The court also relied on the viciousness and callousness of the crime, which, as discussed above, does not violate the dual use prohibition. In addition the probation report stated other aggravating factors—defendant committed the crime while on probation and his prior performance on probation was unsatisfactory. On this record, therefore, we discern no reasonable probability the trial court would have imposed a more favorable sentence absent the aggravating factor of “planning.”
C. Penal Code Section 1385
Appellant asserts remand is warranted “to allow the trial court to consider exercise of its power to dismiss the bodily injury enhancement pursuant to Penal Code section 1385, ” which empowers a trial court with discretion to strike an enhancement “in furtherance of justice.” (People v. Meloney (2003) 30 Cal.4th 1145, 1155.) In his sentencing statement in mitigation, appellant requested the trial court exercise its discretion and strike the bodily injury enhancement. At sentencing, the court stated it had read and considered his sentencing statement and, contrary to appellant’s request, imposed the enhancement. Appellant fails to show how this was an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 377 [no abuse of discretion “unless [the trial court’s] decision is so irrational or arbitrary that no reasonable person could agree with it”].)
DISPOSITION
The judgment is affirmed.
We concur: Pollak, J., Siggins, J.