Opinion
E050449 Super.Ct.No. RIF145058
08-18-2011
THE PEOPLE, Plaintiff and Respondent, v. DAMIEN ALEXANDER SIMMONS, Defendant and Appellant.
Stephen S. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Christian F. Thierbach, Judge. Affirmed.
Stephen S. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Damien Alexander Simmons guilty of four counts of robbery (Pen. Code, § 211; counts 1, 2, 5 & 6); two counts of attempted robbery (Pen. Code, §§ 664/211; count 3 & 4); and one count of possession of cocaine (Health & Saf. Code, § 11350, subd. (a); count 7). The jury also found true that in the commission of count 1, defendant personally used a firearm within the meaning of Penal Code section 12022.53, subdivision (b). Defendant was sentenced to a total term of 17 years 4 months with credit for time served in state prison. On appeal, defendant contends the sentencing court erred in failing to continue the matter to allow him to be sentenced by the judge of his choice and by imposing consecutive terms. We reject these contentions and affirm the judgment.
Codefendants Christopher Boston and Shayna Moore were also charged in the information but are not parties to this appeal.
The remaining enhancement allegations were found not true.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. July 8, 2008, Incident (Counts 1, 2, 3 & 4)
About 1:00 a.m. on July 8, 2008, David Mendoza, Arrian Culjak, Priscilla Rivera, and Sarah Masacek were standing and talking behind Culjak's vehicle in the parking lot of an El Torrito restaurant in Riverside Plaza when a black sport utility vehicle (SUV) pulled up and parked behind Culjak's car. Defendant and Boston exited the SUV, and Boston approached the group and aggressively demanded their cash and wallets. Boston took Culjak's wallet and gave it to defendant. Boston then snatched Mendoza's wallet as Mendoza tried to remove his credit card. Boston and defendant thereafter ran back to the SUV.
As defendant got into the vehicle, Culjak ran up to him, grabbed his arm, and pleaded with defendant not to take her property. Defendant pulled out a gun and told her not to touch him or he would shoot her. Culjak backed up and put her hands in the air. A female was in the driver's seat of the SUV.
All four of the victims took out their cellular telephones, began repeating the license plate number of the SUV, and called 911.
Two 911 calls were played for the jury.
About a month later, Mendoza identified Boston in a photographic lineup as the person who took his wallet. He also identified photographs of the vehicle that was used in the robbery. Culjak identified Boston as the person who took her wallet but did not identify defendant during a photographic lineup. However, she identified defendant at the time of the preliminary hearing and trial. After the police returned Culjak's wallet, Culjak found a piece of paper in it with the name Shayna Moore.
B. July 20, 2008, Incident (Counts 5 & 6)
On July 20, 2008, about 12:00 a.m., Elizabeth Alcock and Amanda Butler were in the parking lot of the Riverside Plaza near Butler's car when an SUV pulled up behind them. Boston got out of the vehicle, held out a gun, and demanded their money. After Butler gave him a bag containing gifts Alcock had received as birthday presents, Boston looked into Butler's car and then got back into the SUV, which then drove off. The victims called 911, reported the incident, and gave the dispatcher the SUV's license plate number.
There were several people in the SUV: a driver, a front passenger, and one or two people in the back seat. The driver was a female, and the front passenger was a male. Alcock and Butler identified Boston in a photographic lineup as the robber.
Two friends who were riding in the SUV testified for the prosecution at trial. According to these two friends, Shayna Moore, Boston, and defendant talked about doing a robbery on July 20, 2008. They pulled into the parking lot of the Riverside Plaza, drove up to Alcock and Butler, and parked behind Butler's car. Boston then exited the SUV and returned with a Victoria's Secret bag. The group then drove away and went back to defendant's house. Boston was carrying a gun.
The SUV used in the commission of the robberies was registered to Shayna Moore. A search of Moore's residence revealed Culjak's wallet. The SUV was also found at Moore's residence. Paperwork in defendant's name was found under the driver's seat.
C. August 8, 2008, Incident (Count 7)
Defendant was arrested on August 8, 2008. A search incident to that arrest revealed a small clear baggie containing .14 grams of useable cocaine in defendant's pocket.
Defendant admitted that he had dated Shayna Moore and that he knew Boston but denied knowledge of the robberies. Later, defendant admitted to being present during the July 8 incident but claimed that he only exited the SUV because he believed Boston was going to fight someone. He denied having a gun or robbing anyone. Defendant also admitted being in the SUV during the July 20 incident but denied knowing a robbery had occurred.
II
DISCUSSION
Defendant contends that his sentence must be vacated and the matter remanded for a new sentencing hearing because the court erred when it imposed his sentence rather than continue the sentencing hearing until the judge of his choice was available. He further argues that the court erred in imposing consecutive terms, because it failed to properly exercise its discretion.
When defendant arrived for sentencing on March 1, 2010, Judge Paul Zellerbach,who had presided over his trial, was not present, and a probation report had not been completed. Defendant requested that he be sentenced by Judge Zellerbach and indicated his willingness to continue the case and waive time until Judge Zellerbach was available. Defense counsel acknowledged that any judge could sentence defendant because the convictions were a result of a trial rather than a plea and that no motion for new trial was pending. The matter was subsequently continued to March 10, 2010.
We note that as of January 3, 2011, Judge Zellerbach was no longer on the bench, having been elected District Attorney of Riverside County.
The court clerk indicated that Judge Zellerbach would not be available until after June 8, 2010, and stated, "Not guaranteed. We can set it on March 10th and I can give him a call and see if he wants to come in." After the court stated, "I would say any time after June the 8th," the clerk informed the court, "If this is the conviction after trial, any judge can sentence, can they not?" Defendant's counsel responded, "That's my understanding too, another judge can sentence even without a [People v. Arbuckle (1978) 22 Cal.3d 749] waiver, but I could be wrong."
At the continued March 10, 2010, sentencing hearing, the court recognized that Judge Zellerbach had presided over defendant's trial and that defendant wanted Judge Zellerbach to conduct the sentencing hearing. The court, however, stated, "Judge Zellerbach has taken a leave of absence from the court and at the earliest would not return to the court until probably sometime in mid-June. The matter was sent to me by the supervising criminal judge, and I was asked to preside over the sentencing." The court further asserted that under the law, a defendant does not have a right after trial to be sentenced by the judge who had presided over the trial and noted its intent to proceed to sentencing. Defendant thereafter made an oral motion for new trial based on ineffective assistance of counsel. The motion was heard and denied.
The court proceeded to sentence defendant as follows: the middle term of three years on count 1, plus 10 years for the gun use enhancement attached to that count; consecutive one-year terms on counts 2, 5, and 6; consecutive eight-month terms on counts 3 and 4; and a concurrent middle term of two years on count 7. The court imposed consecutive terms because the offenses involved separate victims and separate times (counts 3 and 4); the crimes involved the threat of great bodily harm or death; the victims were particularly vulnerable given the time of day and location of the crimes; and the crimes involved planning and sophistication.
A. Choice of Sentencing Judge
Initially, we note that defendant's request to remand the case so that he could be sentenced by Judge Zellerbach is moot, as Judge Zellerbach is no longer on the bench. Moreover, as noted by the sentencing court, and contrary to defendant's underlying premise, he was not entitled to have the trial judge sentence him. "It is settled that it is not error for a judge other than the one who tried a criminal case to pronounce judgment and sentence." (People v. Downer (1962) 57 Cal.2d 800, 816; accord People v. Jacobs (2007) 156 Cal.App.4th 728, 733 ["[u]nlike a defendant who enters into a plea bargain with an implied term that the same judge who accepts the plea will impose the sentence [citation], a defendant who has been convicted after trial has no such right"].)
Acknowledging that remanding the matter to Judge Zellerbach is "not a viable option," defendant nevertheless argues that his "request for resentencing should still be granted because his rights were substantially violated." In support, he argues that his request for continuance should have been granted, because the clerk had improperly intervened, and the court believed that a continuance was reasonable in light of the gravity of the convictions.
"Continuances shall be granted only upon a showing of good cause" (Pen. Code, § 1050, subd. (e)), and a trial court's denial of a motion for continuance is reviewed for abuse of discretion. (People v. Mungia (2008) 44 Cal.4th 1101, 1118.) A trial court abuses its discretion only when its ruling "'"falls 'outside the bounds of reason.'"' [Citation.]" (People v. Benavides (2005) 35 Cal.4th 69, 88.) The burden of establishing an abuse of discretion rests squarely on the defendant. (People v. Beeler (1995) 9 Cal.4th 953, 1003.)
In ruling on a motion to continue, the court must consider not only the benefit that the moving party anticipates, but also the likelihood that such benefit will result, the burden on the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion. (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) The trial court decision will not be disturbed on appeal in the absence of a clear abuse of discretion. (Ibid.)
Here, defendant sought a continuance so that he could possibly be sentenced by the trial judge. Even if the clerk improperly interfered with the date of the continuance, there was no indication that Judge Zellerbach would have been available on June 8 or any time after June 8, 2010. At that time, Judge Zellerbach's availability was speculative. Additionally, a guiding principle of law governing continuance motions is "whether a continuance would be useful." (People v. Beeler, supra, 9 Cal.4th at p. 1003.) It is mere speculation that even if the continuance would have been granted to sometime after June 8, that it would have been "useful" or beneficial to defendant, i.e., defendant would have received a lighter sentence. Moreover, there is no indication in the record to show that defendant's substantial rights were violated. Defendant had a sentencing hearing where he had an opportunity to be heard. No abuse of discretion appears here.
B. Imposition of Consecutive Terms
Defendant also claims that the sentencing court failed to properly exercise its sentencing discretion or relied on improper reasons when it imposed consecutive terms. We disagree.
Sentencing decisions are reviewed for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) Defendants bear a heavy burden when attempting to show an abuse of discretion. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) "'In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' [Citation.]" (People v. Superior Court (Alvarez)(1997) 14 Cal.4th 968, 977-978.)
A sentencing court has discretion to determine whether sentences are to run concurrently or consecutively unless the legislature has mandated consecutive terms. (Pen. Code, § 669; In re Sandel (1966) 64 Cal.2d 412, 416.) California Rules of Court, rule 4.425 lists a number of factors the court may consider in determining whether a sentence should be concurrent or consecutive, including whether the crimes involved separate acts of violence and whether they were committed at different times. (Cal. Rules of Court, rule 4.425(a)(2), (3).) "The enumeration in these rules of some criteria for the making of discretionary sentencing decisions does not prohibit the application of additional criteria reasonably related to the decision being made." (Cal. Rules of Court, rule 4.408(a).) Only one criterion or factor in aggravation is sufficient to support a consecutive sentence. (People v. Bravot (1986) 183 Cal.App.3d 93, 98.) In addition, "'[a] trial court may minimize or even entirely disregard mitigating factors without stating its reasons.'" (People v. Zamora (1991) 230 Cal.App.3d 1627, 1637.)
Here, contrary to defendant's contention, there is no evidence to suggest that the sentencing court relied on improper reasons or failed to exercise its sentencing discretion in sentencing defendant to consecutive terms. The court was aware of its sentencing discretion and properly imposed consecutive terms for the reasons it stated. The crimes involved six separate victims. In addition, counts 5 and 6 occurred on a different occasion than counts 1, 2, 3, and 4. Furthermore, there is evidence to suggest that defendant threatened to shoot one victim when she asked for her wallet back, and the victims were all particularly vulnerable. The evidence also shows that the crimes indicated planning and sophistication. Accordingly, the sentencing court properly imposed consecutive terms on counts 1 through 6.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
Acting P.J.
We concur:
MILLER
J.
CODRINGTON
J.