Opinion
F079328
02-04-2020
THE PEOPLE, Plaintiff and Respondent, v. RACHEL RENEE KIPP, Defendant and Appellant.
Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCR017802)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Madera County. Ernest J. LiCalsi, Judge. Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Detjen, J. and Snauffer, J.
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Appointed counsel for defendant Rachel Renee Kipp asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of her right to file a supplemental brief within 30 days of the date of filing of the opening brief. She responded, raising various issues. We find no arguable errors that would result in a disposition more favorable to defendant. Thus, we affirm.
BACKGROUND
On July 30, 2018, an employee at EZ Mart reported that defendant hit a man on the back of the head with a steak knife. Surveillance video showed the man was trying to steal defendant's purse. She walked after him and hit him on the back of the head multiple times with her fist.
When deputies arrived, they encountered defendant, who appeared to be intoxicated. Madera County Sheriff's Deputy Hopper asked her to move away from the road because she was unsteady. She started walking, stumbled, and fell to the ground. Hopper asked if defendant wanted her to call an ambulance, and she answered that she did.
While seated on the ground, defendant asked Hopper what she was staring at and said she was going to "kick her ass." She asked Hopper if she wanted to fight and defendant tried to stand up. Hopper pushed her back down and handcuffed her. Defendant said, "Stupid bitch, I'm going to take you out." She spit at Hopper and yelled more profanities at her.
When medical personnel arrived, defendant spit on a paramedic. The deputies pushed defendant to the ground and told her to stop resisting. She pulled on Hopper's vest, spit at her, and grabbed her radio. The struggle continued until Hopper was able to place her knee on defendant's shoulder, but defendant continued to yell profanities and spit at the deputies.
On September 28, 2018, defendant pled guilty to felony resisting an officer (Pen. Code, § 69; count 1), misdemeanor use of force and violence against an emergency medical responder (§ 243, subd. (b); count 2), misdemeanor resisting an officer (§ 148, subd. (a)(1); count 3), and misdemeanor use of force and violence (§ 242; count 4), in exchange for formal probation.
All statutory references are to the Penal Code. --------
On November 26, 2018, defendant was sentenced on seven cases. In this case, the trial court granted three years' probation with terms and conditions. The court imposed various fines and fees. Defendant accepted the terms and conditions.
On January 3, 2019, a petition for revocation of probation was filed, alleging defendant had been under the influence while in public (§ 647, subd. (f)).
On January 18, 2019, defendant admitted violating her probation.
On January 23, 2019, the trial court revoked and reinstated probation, granted credits, and ordered defendant to serve 60 days in jail and complete an inpatient substance abuse program. Defendant accepted the terms and conditions.
On February 11, 2019, a second petition for revocation of probation was filed, alleging defendant had resisted an officer (§ 69), committed vandalism causing $400 or more of damage (§ 594, subd. (b)(1)), committed theft (§ 484, subd. (a)), and failed to report to probation.
On March 1, 2019, defendant admitted violating her probation.
At the sentencing hearing on April 2, 2019, defendant was sentenced on five cases. Relevant to this case, the following occurred:
"THE COURT: The Court is not going to follow the probation report .... The Court will note that there are separate victims in Counts One, Two, and Four, and the defendant's behavior was egregious, so I intend to impose consecutive sentences. [¶] ... [¶]
"[DEFENSE COUNSEL]: Understood.
"THE COURT: All right. Anything further on behalf of [defendant]?
"[DEFENSE COUNSEL]: Submitted.
"[PROSECUTOR]: People submit, Your Honor.
"THE COURT: In [this case], as to circumstances in aggravation, the crime involved a high degree of callousness as the defendant physically assaulted the victim hitting [him] in the back of the head, I would point out, with a knife. The defendant engaged in violent conduct that indicates a serious danger to society. The defendant's prior convictions are endless. The defendant has served a prior prison term. The defendant was on probation at the time the crime was committed. The defendant's prior performance on probation and parole is unsatisfactory. Court finds no circumstances in mitigation. Probation is revoked and not reinstated."
On count 1, the trial court imposed the upper term of three years to be served in county jail consecutively to all other cases; on count 2, the court imposed 364 consecutive days; on count 3, the court imposed 364 concurrent days; and on count 4, the court imposed 180 consecutive days. The court also imposed various fines and fees.
On May 13, 2019, defendant filed a notice of appeal.
DISCUSSION
Defendant contends the trial court erred in imposing consecutive terms because it relied on the mistaken belief that defendant used a knife when she hit the man on the back of the head. She attaches the sheriff deputy's incident report in which the deputy stated he did not observe a knife when he watched the surveillance video, and he also did not recover one.
Assuming for the sake of argument the trial court erred in relying on the use of a knife as an improper factor, we would nevertheless conclude the error was harmless. " 'In order to determine whether error by the trial court in relying upon improper factors in aggravation [or in imposing consecutive sentences] requires remanding for resentencing[,] "the reviewing court must determine if 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' " ' " (People v. Sperling (2017) 12 Cal.App.5th 1094, 1104; see People v. Osband (1996) 13 Cal.4th 622, 728). Only a single aggravating factor is required to impose a consecutive sentence. (People v. Osband, at pp. 728-729.) Where a trial court has stated both proper and improper reasons for a sentencing 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.)
Here, the trial court relied on several other factors in aggravation and thus we conclude the court would have imposed consecutive sentences even without considering use of a knife. In other words, it is not reasonably probable the court would have chosen a lesser sentence had it known that reason was improper.
We have also considered the other issues defendant has raised to the extent that we comprehend them. Having undertaken an examination of the entire record, we find no evidence of ineffective assistance of counsel or any other arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.