Opinion
A129513
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. SCOTT C. THOMAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco City & County Super. Ct. No. 02321742/202166)
Defendant seriously wounded a teenage girl in an unprovoked knife attack. When a bystander intervened, defendant stabbed him as well. Defendant argues that the trial court declined to consider defendant's "mental status" as a mitigating factor when imposing sentence for the attempted murder of the intervener. Finding no abuse of discretion in this refusal, we affirm.
I. BACKGROUND
Defendant was charged in an indictment, filed June 21, 2007, with two counts of attempted murder (Pen. Code, §§ 187, 664) and one count each of aggravated mayhem (Pen. Code, § 205) and assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). Both attempted murders were alleged to have been willful and premeditated. (Pen. Code, §§ 664, subd. (a), 1192.7, subd. (c).) Each count alleged the use of a deadly weapon (Pen. Code, § 12022, subd. (b)(1)), and the attempted murder and assault counts alleged the infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)), as well as the infliction of paralysis in connection with one of the attempted murders (Pen. Code, § 12022.7, subd. (b)). It was also alleged defendant had served three prior prison terms. (Pen. Code, § 667.5, subd. (b).)
The evidence at trial demonstrated defendant entered a bakery and, without provocation, attacked a teenage girl with a six- or seven-inch hunting knife. When a bystander stopped the assault by grabbing defendant's arm and attempting to pull him through the doorway, defendant stabbed the intervener in the chest. Defendant then walked rapidly away. He was arrested soon after when a person who had trailed his escape located sheriff's deputies and alerted them. The young victim survived a deep and potentially fatal slashing wound to her neck, but the attack caused her to lose much of the use of her right arm.
Defendant was convicted of aggravated mayhem and the attempted murder of both victims. All enhancement allegations were found true, except the jury concluded the attack on the intervener was not premeditated. The jury failed to reach a verdict in a subsequent sanity trial, and defendant withdrew his plea of not guilty by reason of insanity before a new trial occurred.
Although the expert witnesses at the sanity trial differed on whether defendant suffered from a mental illness, there was abundant evidence he was seriously emotionally disturbed. In a post-arrest interview, defendant was absorbed by bizarre ideas. He explained to police he had thought about committing a murder throughout the prior four months, while he was incarcerated. He acknowledged he was not acquainted with the victims. He chose the girl as his victim because she appeared to be "the weakest link." Recollecting the crimes, defendant told police: "I felt good that I did that. I felt good." Yet defendant was not so disconnected from reality that he did not realize he would go back to prison if caught.
On the charge of attempted murder of the intervener, the court, finding several aggravating factors, imposed the upper term sentence of nine years, plus three years for inflicting great bodily injury and one year for use of a deadly weapon. Defense counsel urged the court to consider defendant's mental illness as a mitigating factor, but the court found there were no mitigating factors. On the two other charges, the court imposed life sentences with the possibility of parole plus enhancements, ordering one of the sentences to be served consecutively to the determinate sentence.
The indeterminate sentences are not challenged in this appeal.
II. DISCUSSION
Defendant contends the trial court abused its discretion in failing to consider his mental health as a mitigating factor in sentencing him to the upper term in connection with the attempted murder of the intervener.
We review a criminal sentence under the abuse of discretion standard (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 976-977 (Alvarez))and must affirm the trial court's sentence " 'unless there is a clear showing the sentence choice was arbitrary or irrational.' " (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) Defendant bears the burden of affirmatively establishing an abuse of discretion. (Alvarez, at pp. 977-978.)
Prior to 2007, a trial court was required to consider various factors in aggravation or mitigation in determining the appropriate sentence term and to articulate its reasoning on the record. Under statutory amendments enacted in response to Cunningham v. California (2007) 549 U.S. 270, the trial court is now "required to specify reasons for its sentencing decision, but will not be required to cite 'facts' that support its decision or to weigh aggravating and mitigating circumstances." (People v. Sandoval (2007) 41 Cal.4th 825, 846-847 (Sandoval).)The Supreme Court described a trial court's discretion under the amended law as follows: "Even with the broad discretion afforded a trial court under the amended sentencing scheme, its sentencing decision will be subject to review for abuse of discretion. [Citations.] The trial court's sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.' " (Id. at p. 847.) Even under prior law, the trial court was not required to "explain its reasons for rejecting mitigating factors." (People v. Avalos, supra, 47 Cal.App.4th at p. 1583.)
Defendant's primary basis for arguing the trial court failed to consider his mental health as a mitigating factor is that, while the court stated it found no mitigating factors under California Rules of Court, rule 4.423(a), which addresses crime-specific mitigating factors, the court did not expressly address the existence of mitigating factors under rule 4.423(b), which lists defendant-specific factors, such as mental health.
References to rules are to the California Rules of Court.
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We find no basis for concluding the trial court did not consider defendant's mental health as a mitigating factor merely because it did not specifically cite rule 4.423(b). The court was well aware of the nature of defendant's emotional disturbance, having presided over the sanity trial. In imposing sentence, the court noted it had reviewed the probation report and the sentencing memoranda filed by both parties. Defendant's memorandum raised his mental status as a mitigating factor. When a trial court says it has reviewed and considered documents addressing factors in mitigation, the court is deemed to have considered those factors, even if it does not otherwise refer to the factors in explaining its sentencing decision. (People v. Weaver (2007) 149 Cal.App.4th 1301, 1318.)
Further, and more significantly, in explaining its imposition of the upper term the court noted it had "considered and reviewed the record for mitigating factors relating to the crime as set out in Rule 4.423(a), and as articulated by defense counsel . . . at this hearing." (Italics added.) By stating that it had considered mitigating factors as argued by counsel in addition to mitigating factors under rule 4.423(a), the court was expressly acknowledging its consideration of defendant's mental health as a mitigating factor under rule 4.423(b), since this is the argument defense counsel articulated.
Defendant also argues the trial court failed to consider his emotional disturbance as a factor in mitigation because the court said it found no mitigating factors. This argument is based on pre-Sandoval decisions requiring the court to discuss mitigating factor matters listed in rule 4.423. (E.g., People v. Burney (1981) 115 Cal.App.3d 497, 505 [abuse of discretion for court to state there were no mitigating factors when the record contained evidence of mitigating factors under former rule 423].) Because trial courts are no longer required expressly to weigh mitigating factors, the precedential value of those decisions is uncertain.
Yet even if we were to apply pre-2007 law, we would find no abuse of discretion. The former rule was explained in In re Handa (1985) 166 Cal.App.3d 966: "A sentencing court errs in disregarding an undisputed factor in mitigation. [Citation.] However, many alleged factors in mitigation are disputable either because they may not be established by the evidence or because they may not be mitigating under the circumstances of a particular case. Where an alleged factor in mitigation is disputable, the court may find an absence of mitigating factors and need not explain the reason for its conclusion." (Id. at p. 973.) In its consideration of aggravating or mitigating factors, the trial court can assign such value to each factor as is appropriate under the facts of the case. (People v. Lamb (1988) 206 Cal.App.3d 397, 401.)
Because defendant's mental health was not an undisputed mitigating factor under these circumstances, the trial court did not abuse its discretion in "find[ing] an absence of mitigating factors." (In re Handa, supra, 166 Cal.App.3d at p. 973.) Under rule 4.423, a defendant's mental health may be considered as a mitigation factor only if it "significantly reduced culpability for the crime." (Rule 4.423(b)(2).) There was a ready basis for concluding defendant's impaired mental health did not reduce his culpability for the attempted murder of the intervener. As the jury's finding of no premeditation suggests, defendant's stabbing of the intervener appeared to be a reaction to the attempt to prevent him from continuing to assault the girl and escaping. While the stabbing of the girl may have been a product of a disordered mind, the second stabbing could be viewed as an ordinary attempt to prevent the thwarting of an ongoing crime or an escape, unmotivated by defendant's delusions. Because the trial court could have concluded defendant's mental health was not a mitigating factor for this crime, it did not abuse its discretion in failing to acknowledge it as such.
Other than contesting the trial court's failure to consider his mental health as a mitigating factor, defendant does not otherwise challenge imposition of the upper term.
III. DISPOSITION
The judgment of the trial court is affirmed.
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Margulies, J.
We concur: _____________
Marchiano, P.J.
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Dondero, J.