Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA293937.
Michael K. Kellogg, Judge. Affirmed.
Robert H. Pourvali, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P.J.
Appellant Jose Ramos was convicted by a jury of second degree robbery. (Pen. Code, § 211.) Subsequently, the trial court found true the allegations that appellant had two three-strikes prior serious felony convictions for robbery (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), another prior serious felony conviction (§ 667, subd. (a)(1)), and two prior prison terms (§ 667.5, subd. (b)). The court struck one of appellant’s prior strikes, stayed two prior prison term enhancements, and then sentenced him to a total prison term of 15 years, consisting of the upper term of five years (doubled pursuant to the Three Strikes Law), plus five years for the prior serious felony enhancement.
All further statutory references are to the Penal Code, unless otherwise indicated.
Appellant contends: (1) that we should review the trial court’s in camera Pitchess ruling (see Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)) that there were no discoverable documents regarding complaints about the police officer; and (2) that the trial court’s imposition of the upper term violated appellant’s constitutional right to a jury trial and was an abuse of discretion. We find the contentions unavailing and affirm.
FACTUAL AND PROCEDURAL SUMMARY
The Pitchess motion
Appellant filed a Pitchess motion, seeking discovery of all complaints relating to the arresting officer, Officer Derek Sledge. The trial court granted the motion, and then conducted an in camera inspection of relevant files to determine whether any documented complaints existed showing fabrication, preparation of false reports, or dishonesty by the officer. Thereafter, the court found that “no discoverable materials” exist “as more fully reflected in the sealed transcript.”
The trial
During the early evening of November 23, 2005, Joel S. waited at a bus stop for a bus to take him home after work. Appellant came up behind Joel S. on a bicycle and stopped several feet ahead of him.
Appellant put down his bicycle and then walked up to Joel S. and asked, “Where you from?”, which was an inquiry as to his gang affiliation. Joel S. replied, “I’m from nowhere.” Appellant then asked, “Are you a paison?”, which meant a “regular” person and nongang member. Joel S. responded, “Yes, I am.” Appellant then told him, “Pull up your shirt. Let me see.” Joel S. complied and pulled up his shirt. Meanwhile, appellant had one of his hands under his own shirt, and Joel S. was afraid he had a gun or other weapon.
When Joel S. lifted up his shirt, appellant saw his cell phone, which protruded from the coin pocket of his pants. Appellant asked him if it was his phone. When Joel S. replied that it was, appellant grabbed the phone from his pocket and declared, “Now it’s mine.” Appellant put the phone in his front pants pocket.
Next, appellant demanded that Joel S. give him “all your money.” Joel S. replied that he did not have any money. Then, appellant “socked” him once on the cheek, “send[ing] him back a couple of steps” and later resulting in a purple bruise on his face. After appellant struck him, Joel S. saw appellant’s other hand and realized that he did not have a weapon under his shirt. Joel S. then struggled with appellant and took him to the ground. While holding appellant on the ground, he saw a police car and yelled for help.
When the police car came by, Los Angeles Police Department Officer Derek Sledge saw Joel S. on top of appellant, holding him down on the ground. The officer got out of his vehicle and separated the two men. Joel S. pointed to appellant and said, “He robbed me. He took my phone.” Officer Sledge then looked at appellant, whom he saw remove a cell phone from his front pants pocket and drop it next to himself on the ground. Joel S. identified the cell phone as his.
Officer Sledge asked appellant where and how he got the phone. Appellant asserted that while he and Joel S. were fighting, the phone “somehow” came out of Joel S.’s pocket and “landed” in appellant’s pocket. The officer then gave the phone back to Joel S. and asked him if he needed any medical treatment, which he declined. Soon thereafter, other police officers arrived and Officer Sledge, who was assigned to the traffic division, turned the case over to them.
In appellant’s defense at trial, he claimed that as he rode his bicycle Joel S. confronted him, cursed at him, and caused him to fall off the bicycle. Appellant denied taking Joel S.’s cell phone, and asserted that he had seen Joel S. earlier that day at a party where Joel S. was “staring [appellant] down” and gave him a “bad look” while appellant was talking to a girl. According to appellant, Joel S. struck him, and then they punched each other. They wrestled on the ground until the officer arrived.
Appellant admitted at trial that he had previously been convicted of two “theft-related” felonies in 1997 and the felony of receiving stolen property in 2003. He had pled guilty in those cases, and he admitted he was guilty of those offenses.
The sentencing
As indicated in the probation officer’s report, which the trial court read and considered prior to sentencing, appellant had a significant juvenile and adult criminal record. As a juvenile, in 1993 at age 14, appellant was arrested for criminal conspiracy (§ 182) and vandalism (§ 594), but those charges were later “closed” with “no further action.” In 1995 at age 16, appellant had a sustained juvenile petition for “transport/sell marijuana” (Health & Saf. Code, § 11360, subd. (a)), and he received four years of camp community placement. Also in 1995, appellant was arrested for robbery, and was counseled and released.
As an adult, in 1997 appellant was arrested and charged with two counts of possession of marijuana (Health & Saf. Code, § 11357, subd. (b)), and one count of possession of controlled substance paraphernalia (Health & Saf. Code, § 11364); apparently, another count charging vandalism was added. Appellant was found not fit for juvenile court, but no further information regarding these charges was noted in the probation officer’s report. Also, in 1997 appellant was convicted of two counts of second degree robbery, and was sentenced to a term of five years in state prison. In December of 1999, deportation proceedings ensued.
In 2001, appellant was detained again for robbery, but released. In 2002, appellant was convicted of “DUI alcohol/0.08” (Veh. Code, § 23152, subd. (b)), and was granted a term of probation for three years which included “144 hour[s] jail, 13 days jail or fine, work, $390 fine.” In July of 2003, following his arrest for another robbery, appellant’s probation was modified and he was required to serve 53 days in jail.
In October of 2003, after having been originally charged with robbery, appellant was convicted of receiving stolen property (§ 496, subd. (a)). He was sentenced to 32 months in state prison. Also in October of 2003, appellant was again convicted of driving while under the influence of alcohol, as well as driving without a license, and received three years of summary probation and a fine.
In December of 2005, the probation officer spoke with appellant’s parole agent, who indicated that a violation report had recently been submitted and he recommended appellant be returned to custody. The parole agent revealed that when appellant was released from prison custody in September of 2005--less than three months before the present offense--appellant had an INS hold and thus had been deported. Appellant then illegally reentered the country, failed to report to his parole agent, and then committed the present offense.
According to the probation officer, appellant “constitutes a danger to any community in which he resides and the only alternative left for the criminal justice system is to separate [him] for as long a time as possible from law-abiding citizens.” The probation officer found eight circumstances in aggravation and none in mitigation. The probation officer recommended imposing “the high-base term” and that “[a]ny and all special allegations that are . . . found to be true would appropriately enhance the high-base term for a maximum sentence.”
At appellant’s sentencing hearing in September of 2006, in the context of his motion to strike a strike (see People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504), the trial court summarized appellant’s above noted criminal history. The court then remarked, in pertinent part, “You could have ridden your bike down the street not bothered that person who was just trying to catch a ride home from doing work. And instead, you decide[d] to take the only item that that person had of value, and that was a cell phone. If he had money, you would have taken money. [¶] So it just happened to be a crime of opportunity. The opportunity was that of taking a cell phone. [¶] I don’t like sending folks away for long periods of time. It is not an easy job to do. But society would be a lot safer . . . and the citizens deserve to be protected as well. . . . . [¶] You’ve got a history of contact with the criminal justice system. I don’t know whether or not [the offenses] are escalating. Because of the printout that I had on the probation report, I think you are staying on a par. [¶] . . . [¶] And the only thing I am weighing is the fact [of] the nature of the 211 [robbery] in itself because 211’s come in a variety of form[s] . . . . [¶] [A]nd I don’t find that to be a factor in mitigation, that you are a kind robber. And he wasn’t. [He was] a vicious robber.”
The court indicated that “the only factor that weighs heavily on [appellant’s] side” was that he did not use a weapon. The court then exercised its discretion to strike one of appellant’s prior strikes, finding that based on the nature of this robbery, 32 years to life would have been “greater punishment than this particular case deserves.”
Then, without objection, the court imposed the high term of five years, doubled pursuant to the Three Strikes Law, plus five years for the prior serious felony conviction, for a total prison term of 15 years. The court specifically stated that the high term was “justified based on the defendant’s record and also his conduct.”
DISCUSSION
I. The Pitchess motion.
Trial courts are granted wide discretion when ruling on motions to discover police officer personnel records. (People v. Mooc (2001) 26 Cal.4th 1216, 1232.) When requested to do so by an appellant, an appellate court may independently review the transcript of the trial court’s in camera Pitchess hearing to determine whether the trial court disclosed all relevant complaints against the officer. (Mooc, at p. 1229.)
Pursuant to appellant’s request, to which respondent has not objected, we have reviewed the sealed transcript of the trial court’s Pitchess hearing. We conclude that there is nothing in the materials that would lead us to find an abuse of discretion by the trial court. (Mooc, supra,26 Cal.4th at p. 1228.)
II. The trial court’s imposition of the upper term did not violate appellant’s constitutional right to a jury or constitute any abuse of the court’s broad sentencing discretion.
No constitutional violation
Appellant maintains that under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296, the trial court’s imposition of the upper term violated his federal constitutional right to trial by jury. The contention is without merit.
In interpreting Cunningham, our Supreme Court held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black (2007) 41 Cal.4th 799, 816 (Black II).) “[A]ny additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to a jury trial.” (Id. at p. 812.)
Black II identified two aggravating circumstances, each of which was sufficient to support the upper term. One was the jury’s finding that the defendant used force, which was made in the context of a finding that the defendant was ineligible for probation due to the use of force. The other was the defendant’s criminal history. (Black II, supra, 41 Cal.4th at pp. 816-818.)
In the present case, the trial court specifically stated that the upper term was justified based not only on appellant’s conduct, but on appellant’s “record.” Additionally, appellant admitted during his trial testimony that he had previously been convicted of two “theft-related” felonies in 1997 and the felony of receiving stolen property in 2003. He acknowledged that he pled guilty in those cases, and he admitted that he was in fact guilty of those offenses. Thus, appellant’s record of convictions before the court at sentencing, as well as appellant’s own admission of three prior felonies, supported the imposition of the upper term under Cunningham.
Appellant maintains that the recidivism exception of Almendarez-Torres v. United States (1998) 523 U.S. 224, 235, 247, allowing use in aggravation of a prior conviction found by the trial court, does not permit findings that involve more than the “fact” of a prior conviction. However, Black II, supra, 41 Cal.4th at pages 819-820, rejected that very argument. As Black II interpreted Cunningham, only one valid aggravating factor is necessary, and a defendant’s prior criminal history is a valid aggravating factor. We, of course, are bound by the decisions of our Supreme Court and must follow Black II. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Accordingly, appellant’s Sixth Amendment right to trial by jury was not violated by the court’s imposition of the upper term.
No abuse of discretion
Apart from the lack of any specific objection at trial based on abuse of discretion in imposing the upper term and thus waiver of that issue on appeal (see People v. Scott (1994) 9 Cal.4th 331, 353), the contention is without merit. A sentencing court has “wide discretion” in weighing aggravating and mitigating factors, and may “‘minimize or even entirely disregard mitigating factors without stating its reasons.’” (People v. Lai (2006) 138 Cal.App.4th 1227, 1258.) On appeal, we “‘must affirm unless there is a clear showing the sentence choice was arbitrary or irrational.’” (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.)
Appellant contends that imposition of the upper term was an abuse of discretion because appellant only took a cell phone, he used no weapon, and the victim was purportedly not significantly injured. However, appellant led the victim to believe that he did have a weapon, appellant did not stop at taking the cell phone but also demanded money (which the victim did not have), and then gratuitously punched the victim in the face. The blow by appellant was sufficient to send the victim back a couple of steps and to leave a purple mark on his face the next day.
Appellant also noted that he was supporting his young daughter while holding two jobs (as a worker in the warehouse and stock room of a department store, and as a busboy in a restaurant). However, according to the probation officer’s supplemental report, appellant indicated “the girls’ mothers support” his two children.
Moreover, appellant had numerous prior criminal convictions and one sustained juvenile petition, and had served two prior prison terms. Appellant was on both probation and parole when he committed the present offense, and his performance on probation was unsatisfactory because of his probation violation and the probation modification resulting in a jail term.
Accordingly, appellant’s criminal conduct in the present case involved great bodily harm, viciousness or callousness (Cal. Rules of Court, rule 4.421(a)(1)), and violent conduct indicating he was a serious danger to society (rule 4.421(b)(1)). Appellant’s prior convictions were numerous (rule 4.421(b)(2)), and at the time of the current robbery he was on both probation and parole and had unsatisfactorily performed on probation. (Rule 4.421(b)(4), (5).)
All further references to rules are to the California Rules of Court.
In view of such recognized aggravating factors, the trial court did not abuse its broad discretion in imposing the upper term for the robbery conviction.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, J., ASHMANN-GERST, J.