Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of the County of Los Angeles No. YA067861, Brad M. Fox, Judge.
Robert H. Pourvali, under appointment by the Court of the Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Beverly K. Falk, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
Defendant and appellant LaFlemiko Thomas (defendant) was convicted of one count of second degree robbery and sentenced to the upper term of five years. On appeal, defendant contends the trial court abused its discretion in imposing the upper term sentence because she had no prior criminal record, no weapon was used during the robbery, and the victim’s injuries were not serious. Defendant also requests that we review the sealed reporter’s transcript of the trial court’s in camera inspection of certain personnel records of two investigating detectives to determine whether the trial court abused its discretion in ruling on defendant’s Pitchess motion.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
We hold that the trial court did not abuse its discretion in imposing the upper term sentence because there is sufficient evidence in the record to support the trial court’s conclusion that the factors in aggravation outweighed the factors in mitigation. We have also reviewed the transcript of the trial court’s in camera review of the detectives’ personnel records, as well as the documents provided as a result of the record correction proceedings ordered by this court, and conclude that the trial court did not abuse its discretion in ruling on the Pitchess motion. We therefore affirm the judgment.
FACTUAL BACKGROUND
A. Prosecution’s Case
McGlerkin
On April 3, 2007, defendant picked up Larry McGlerkin at his house and they went to a Starbucks in El Segundo. It was defendant’s idea to go to the El Segundo Starbucks location. McGlerkin was in the back seat of defendant’s car with “a guy named Mark” and “this boy named Crip.” Defendant was driving a white Toyota Corolla with “a pink Greed sticker” in the rear window, and there was also a male front seat passenger who was a Starbucks employee. They “were supposed to be scoping [the Starbucks] out” for a robbery of a person who worked there. When defendant and her companions arrived at the El Segundo Starbucks, they saw the car “of the person that was supposed to make the deposit” parked in front.
McGlerkin and defendant were members of a car club. The club’s name—Greed—was printed on stickers that members displayed in the rear windows of their cars.
They left the Starbucks and proceeded to the Bank of America located in the Manhattan Beach Village mall. They were waiting for “whoever was going to make” the cash deposit for Starbucks. The group waited for about two hours. During that time, they discussed which of them would take the deposit from the Starbucks employee, and it was decided that “Little Crip” would. McGlerkin and Mark were to act as lookouts. The male front seat passenger, the Starbucks employee, “wasn’t supposed to do nothing.” From the driver’s seat, defendant heard the plan and knew the men were going to commit a robbery.
The group moved “a couple of times” when other cars blocked their view of the entrance to the bank. The Starbucks employee in the front passenger seat was watching for the car of the person they were going to rob. He told McGlerkin the person would be carrying approximately $5,000. During the entire time the group waited for the victim, defendant remained in the driver’s seat.
The Starbucks employee in the front passenger seat pointed out the victim’s car as it arrived, and McGlerkin, Mark, and Little Crip exited defendant’s Corolla. They stood by the front door of the bank and waited for the female Starbucks employee making the deposit. As the woman walked by the men, Little Crip grabbed the bag, and the woman began to scream. The woman held the bag and, as Little Crip pulled on the bag, she fell to the ground. When the woman eventually released the bag to Little Crip, the three men ran. While running, Little Crip attempted to throw the bag to McGlerkin, but McGlerkin allowed the bag to fall to the ground as the three men ran to defendant’s Corolla. The plan was for the three men to return to the Corolla, but when Little Crip entered the car, defendant drove away leaving McGlerkin and Mark behind. McGlerkin and Mark ran away in opposite directions. Both were eventually apprehended by the police and McGlerkin was identified by several witnesses to the robbery.
Following his arrest, McGlerkin was interviewed in jail by Manhattan Beach Police Detective Matt Sabosky. Initially, McGlerkin told Detective Sabosky that he was walking with Little Crip, and then Little Crip “just ran over there and snatched the bag from somebody and started running.” But McGlerkin eventually told Detective Sabosky what happened, including that Little Crip took the bag, that McGlerkin was a lookout, and that defendant planned the robbery. McGlerkin also told Detective Sabosky that defendant pointed out the victim for the others to rob.
McGlerkin pleaded guilty to charges against him arising from the robbery. Although no one promised McGlerkin a lighter sentence if he cooperated, he was hoping he would receive a lighter sentence in return for his cooperation. McGlerkin admitted that he had been convicted and punished for making terrorist threats and for driving someone else’s vehicle.
Walker
Lisa Walker worked for Starbucks for approximately three years prior to trial, and, in April 2007, she was the store manager for the Starbucks location on Rosecrans Avenue is El Segundo. Making daily cash deposits at the Bank of America in the Manhattan Beach Village mall was among her duties as manager. The daily cash deposits were usually made between 11:00 a.m. and 12:00 p.m.
Defendant had been employed at Starbucks, and Walker had been her manager for the prior six months. Defendant, a shift supervisor, had made cash deposits in the past, so she knew when and where those deposits were made. She also knew the amount of those deposits, which typically was around $1800 to $1900 a day.
Walker knew that defendant drove a white four door Toyota Corolla. The Corolla had a large, pink sticker displaying the word Greed. On April 2, 2007, the day before the robbery, defendant terminated her employment with Starbucks. Defendant called in sick the Saturday before, and did not appear for work or call on Sunday. On Monday, April 2, 2007, she again failed to appear for work. Later that Monday, defendant approached Walker at work and told Walker she had heard Walker no longer wanted defendant to work there. Walker told defendant that was not accurate, but informed defendant that her employment was under review because of two cash shortages. When Walker told defendant she could continue working her shifts while the investigation was ongoing, defendant handed Walker her keys and said, “I quit. I’m tired of this crap.”
The next day, April 3, 2007, Walker left work at approximately 11:45 a.m. to make a cash deposit. She had $1839 to deposit and an additional $834 to purchase change from the bank. She placed the cash in a deposit bag and placed the deposit bag in a black unmarked “handle bag.”
After Walker arrived at the bank, she parked and noticed “a lot of people there that day and so [she] took a moment... in [her] car and prayed.” When she looked up, she noticed some of the people were “still kind of hanging out.” As she exited her car, she saw three men lined up across the stairs leading to the bank entrance. Because she did not want to “jump to conclusions or anything,” she assumed they were waiting for a ride. As she walked up the stairs, she turned to see what the men were doing and the man closest to her grabbed the bag with the cash and said, “Give me your money.” She was carrying the bag with the strap over her shoulder and across her body. Walker knew she was being robbed and was afraid. She screamed, “no,” held the bag with both hands, planted her feet, and attempted to hold her ground. Her assailant grabbed the strap, which was still around Walker’s head and shoulders, and threw her against a wall. Walker held the bag, screamed, and her assailant threw her to the ground dragging her two or three feet. The assailant then hit Walker in the back of the head once or twice, hard enough to cause her head to strike the ground. Walker released the bag and her assailant ran away with it. The men ran straight toward “Macy’s and Coffee Bean.”
Walker saw a male witness chase the three men, and a woman helped her while someone else called 911. Walker sustained a bruise or laceration on her neck from the bag, badly “scratched up” knuckles and elbows, and a skinned knee. Prior to being taken to the hospital by ambulance, Walker identified at the scene two of the men who were involved in the robbery. The cash bag was returned to Walker at the scene by one of the witnesses. She did not see defendant at the Bank of America or at the Manhattan Beach Village mall that day.
Huhn
On April 3, 2007, at approximately 11:45 a.m., Matthew Huhn was near the Coffee Bean at the Manhattan Beach Village mall. He heard yelling and whistling coming from the Bank of America nearby. He saw three men running in his direction and a woman on the ground. Two of the men continued running toward Huhn while the third went in another direction. When one of the two men running toward Huhn changed direction, Huhn ran after him. The man ran between two cars and entered a Toyota Corolla with “a large sticker in the [back] window with the word ‘Greed’ in pink letters.” Huhn was an “arm’s length” from the Corolla and had a “good look” at the license plate number which he wrote on his hand. The Corolla was double parked in a no parking zone with its engine running. The Corolla drove away erratically. Huhn returned to the Bank of America, spoke with Officer Kristie Colombo, and gave her the license plate number of the Corolla.
Fader
On April 3, 2007, at approximately 11:50 a.m., Kenneth Fader was “doing some banking” at the Bank of America in the Manhattan Beach Village mall. After he completed his transaction, he went to his car. While entering his car, he saw two males standing on the curb close to the automated teller machine. As he drove through the parking lot, a female walked in front of his vehicle. He allowed her to pass and then proceeded to the exit of the lot where he waited for traffic to clear. He heard screams, looked behind him, and saw the two men grab the woman and try to grab her purse or bag. They threw her to the ground, hit her, and she released the bag. Fader identified the victim as Walker. The men ran toward Macy’s, and Fader observed people chasing after them. Fader then noticed a third man standing on an island outside the bank. He observed that man “kind of scurrying in the other direction [through] the parking lot.” Fader called 911 to report the incident. He read a transcript of the tape recording of that call and confirmed it was accurate.
Officer Colombo
On April 3, 2007, at approximately 12:00 p.m., Manhattan Beach Police Officer Kristie Colombo received a call about a robbery at the Bank of America in the Manhattan Beach Village mall. At least 12 other officers and detectives responded to the scene along with Officer Colombo. Officer Colombo interviewed seven witnesses. Other officers interviewed an additional six or seven witnesses. Witness Peter Hamilton gave Officer Colombo a piece of paper with a license plate number written on it. Hamilton described the suspects’ vehicle, including the pink Greed sticker in the rear window. Officer Colombo also spoke to Huhn who showed her the license plate number written on his palm and provided a description of the suspects’ vehicle that was similar to the description provided by Hamilton.
Detective Sabosky
Manhattan Beach Police Detective Matthew Sabosky responded to the Manhattan Beach Village mall on April 3, 2007, to assist the patrol officers and conduct an investigation of the robbery of Walker. He interviewed McGlerkin who told him that defendant recently worked for Starbucks and that McGlerkin and defendant devised a plan to intercept the money drop from Starbucks outside the Bank of America. McGlerkin said it was defendant who pointed out Walker as the person to rob.
Detective Sabosky obtained defendant’s telephone number from one of the suspects detained at the scene and left a message for her to contact him. He wanted to speak to her because he entered the license plate number provided by witnesses into the DMV database, which showed defendant as the registered owner of the vehicle assigned that license number.
Defendant arrived at the Manhattan Beach Police Department about 7:00 p.m. on the day of the robbery and Detective Sabosky inspected her car. It was a white Toyota Corolla with the same license plate number provided by the witnesses. Detective Sabosky did not see any sticker in the rear window, but did notice that the windows appeared to have been recently washed, although the rest of the car had not been. After Detective Sabosky advised defendant of her Miranda rights, she agreed to speak with him and signed a written waiver form.
Miranda v. Arizona (1966) 384 U.S. 436.
Defendant informed Detective Sabosky that she had been fired from her job at the Starbucks in El Segundo. She told him that part of her job responsibilities at Starbucks was to make daily cash deposits. She made deposits approximately once a week in the amount of $2,000.
Detective Sabosky asked defendant what happened to the sticker on the rear window of her car and she replied that the president of the car club was angry with her and removed the sticker the day before the robbery. Detective Sabosky believed defendant was lying because witnesses had seen the sticker on the rear window of her car the day of the robbery.
When Detective Sabosky asked defendant why she drove to the Manhattan Beach Village mall on April 3, 2007, she gave different explanations. Initially, she said there were four occupants in her car and she dropped them off at the mall and left them there because they would not pay for gas. She identified the front seat passenger as Starbucks employee Antoine Yarbrough, a minor. She identified two of the three rear seat passengers as Mark and Little Crip, but may not have named the third passenger.
When Detective Sabosky told defendant that witnesses identified her license plate at the mall and there were videos of her at the mall, defendant immediately changed her story. Defendant said she and the four men first parked in an Apple One parking lot adjacent to the El Segundo Starbucks. Although she admitted parking at that location for five minutes, she could not provide a reason for going there. She mentioned that Yarbrough was going to work at Starbucks that day, but gave no reason why they went to that location, parked for five minutes, and then left.
This latter statement was not true.
After defendant arrived at the Manhattan Beach Village mall, she said the group first parked at the California Pizza Kitchen, but could not explain why they went there. No one exited the car at that location. Defendant explained that the group then left the first location, but did not say why they moved. They next parked north of the Coffee Bean. At first defendant said that the three rear seat passengers did not exit the vehicle until it arrived at a third location, but later she told Detective Sabosky that the three rear seat passengers exited the vehicle at the second location north of the Coffee Bean. Defendant told Detective Sabosky that she moved her car to a third location east of the Coffee Bean and that it was the other occupants who told her to move to the different locations.
During the interview, defendant claimed that she did not know a robbery was going to occur. She said about a minute after the three men exited her vehicle, she heard a scream and one of the men jumped in the backseat and she drove away. Defendant confirmed that none of the three men in the rear seat worked at Starbucks. Detective Sabosky taped the interview with defendant.
B. Defense Case
Sowell
Defendant’s mother, Shenan Sowell, testified that defendant lived with her. She saw defendant leave home on April 3, 2007, at about 11:00 a.m. That afternoon, Sowell received a call from a police officer who wanted to speak to defendant. When Sowell told the officer defendant was not home, he told Sowell that defendant needed to speak to him. Sowell took down the officer’s name and phone number and told him that she would have defendant call him. Later that day, as Sowell and defendant were on their way to the police station, the officer called Sowell’s house and harassed her children, telling them “he was going to send a squad down there to kick the door in, [and] that they [were] lying because [defendant] wasn’t in the office.”
Sowell and defendant’s grandmother accompanied defendant to the police station. The officer who had telephoned Sowell came out and asked to see defendant’s car. He took pictures of the car and asked who owned it. He asked defendant what happened to her that day and she explained she had been fired from her job at Starbucks. Then he asked defendant questions about the incident.
On February 14, 2007, at about 3:30 p.m, the same officer and a partner were driving in a grey unmarked vehicle when they cut in front of Sowell’s car without signaling. Sowell almost collided with their car. Sowell had two children and one of her daughters in her car at the time.
Defendant
Defendant testified that she “graduated from Morningside High School with above average [grades] and then [she] did one semester in community college....” Prior to her termination, defendant had worked at the Starbucks in El Segundo for two years and four months. She was promoted to a shift supervisor. During her employment at Starbucks, she received numerous awards recognizing various aspects of her job performance. She was the opening supervisor and worked from 3:30 a.m. to 12:00 p.m. In her experience, it was not usual to have cash shortages.
On Monday, April 2, 2007, she received a call from another shift supervisor, Jennifer, who told defendant that Walker wanted defendant to come into work to turn in her keys. Defendant asked when Walker would be working because defendant wanted to turn her keys into a manager. Defendant went to work, asked Walker to “step to the side in front of the cameras and audio,” and asked Walker “what was going on.” Walker told defendant that “it wasn’t working out anymore. She didn’t want [defendant] at the store and [asked defendant to] turn the keys in.” After her employment at Starbucks terminated, defendant obtained a cashier position at a Target store.
On April 3, 2007, defendant and her boyfriend Curtis went to her mother’s house to use her mother’s telephone to turn on the gas and electricity at Curtis’s new residence. While there, defendant received a telephone call from Yarbrough’s mother who told defendant she would give defendant $100 to take Yarbrough to work. Defendant then received another telephone call from Little Crip who asked her to take him and his girlfriend to Planned Parenthood.
Defendant implied the $100 was also compensation for other occasions defendant had taken Yarbrough to work and in recognition of the fact that defendant “got [Yarbrough] a job at Starbucks.”
Defendant and Yarbrough proceeded to Little Crip’s house where Little Crip told them that his girlfriend no longer wanted to go to Planned Parenthood. But Little Crip stated that he and his friends wanted to be “dropped off” somewhere, without specifying a location.
Defendant did not drive to Manhattan Beach Village mall to rob anyone and did not discuss robbing anyone with any of the occupants of her car that morning. She went to the El Segundo Starbucks to drop off Yarbrough, but he said it was too early. She then considered going into the Apple One temporary employment agency adjacent to Starbucks, but one of the occupants of her car, who seemed to be in a rush, asked her to drop off Little Crip and his friends. She pulled out of the Apple One parking lot and was told to proceed down Rosecrans Avenue and turn into the Manhattan Beach Village mall.
Once at the mall, defendant parked near the California Pizza Kitchen. After about five minutes, the “bigger guy” sitting behind defendant told her to move south of their location, closer to the Coffee Bean. She parked near the Coffee Bean, but then the “same guy” asked her to move again. When she finally parked, she was not double parked. The back seat occupants exited the car while defendant was parked in the Coffee Bean parking lot from where she could not see the Bank of America. She did not know why the three men left her car. She did not agree that her car would be their “get away vehicle.”
One of the three men came back to defendant’s car. Her doors were locked, but Yarbrough unlocked them and Little Crip jumped in, but did not say anything. Defendant did not think something had gone wrong and did not think it was strange that the other two men did not come back with Little Crip.
That day at the mall, defendant’s car had a pink sticker displaying the word Greed in the rear window. After defendant dropped off Yarbrough at work, she dropped off Little Crip at work and then went to the house of the car club president. She had recently joined the club, but two of the male members both “liked” her, causing the president to say “it was too much in the car club anymore and [to snatch defendant’s] sticker off.” According to defendant, after her arrest, she took a job at Target and Little Crip and his brother harassed her in an effort to coerce her into accepting a plea bargain. Yarbrough also harassed her.
Defendant claimed that she did not sign the Miranda waiver form until after Detective Sabosky had questioned her. She also claimed that she did not tell Detective Sabosky that the Greed sticker had been removed the day before the robbery.
According to defendant, she was not angry with Walker for terminating her employment at Starbucks. She also denied that Walker ever “wrote her up” for cash shortages. Defendant denied telling Detective Sabosky that she went to the Manhattan Beach Village mall on April 3 to rob Walker. She also denied telling him that she went to the mall on April 3 at about 11:00 a.m., telling him that she saw a “white guy” chasing Little Crip, and telling him that she aided Little Crip in “getting away” from the mall.
After excerpts from Detective Sabosky’s tape recorded interview of defendant were played for the jury, defendant denied that the voice on the tape was her voice. But when defendant’s mother subsequently testified, she stated that the voice on the tape was “positively” her daughter’s.
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney charged defendant in an information with second degree robbery in violation of Penal Code section 211. The District Attorney alleged that the offense was a violent felony within the meaning of section 667.5, subdivision (c). The District attorney also alleged that defendant induced others to participate in the commission of the crime and assumed a position of leadership; induced a minor to commit and assist in the commission of a crime; carried out the crime in a manner that indicated planning, sophistication and professionalism; and took advantage of a position of trust and confidence to commit the offense.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant pleaded not guilty. Thereafter, she filed a Pitchess motion that the City of Manhattan Beach opposed. The trial court granted the motion as to complaints about two investigating detectives over the last five years involving false police reports, dishonesty, and racial animosity. After conducting an in camera hearing, the trial court ordered the City to turn over information on one complaint about one of the detectives.
Following a jury trial, defendant was found guilty as charged. At the sentencing hearing, the trial court imposed the upper term sentence of five years. Defendant appealed from the judgment of conviction.
DISCUSSION
A. Standard of Review
Defendant’s challenge to the trial court’s imposition of the upper term sentence is governed by an abuse of discretion standard of review. “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. (See People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 976–977 [60 Cal.Rptr.2d 93, 928 P.2d 1171] [trial court’s decision whether to reduce a ‘wobbler’ offense to a misdemeanor under § 17, subd. (b) is reviewable for abuse of discretion]; People v. Russel (1968) 69 Cal.2d 187, 195 [70 Cal.Rptr. 210, 443 P.2d 794] [‘all exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue’].) 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.’ (Alvarez, supra, 14 Cal.4th at p. 978.) As under the former scheme, a trial court will abuse its discretion under the amended scheme if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision. (See, e.g., People v. Colds (1981) 125 Cal.App.3d 860, 863 [178 Cal.Rptr. 430] [it is improper to consider a waiver of jury trial in mitigation, or an exercise of the right to jury trial as aggravation]; People v. Johnson (1988) 205 Cal.App.3d 755, 758 [252 Cal.Rptr. 302] [‘defendant's alienage is not a proper factor when considering the length of his term’].) A failure to exercise discretion also may constitute an abuse of discretion. (See, e.g., People v. Crandell (1988) 46 Cal.3d 833, 861 [251 Cal.Rptr. 227, 760 P.2d 423]; People v. Benn (1972) 7 Cal.3d 530, 535 [102 Cal.Rptr. 593, 498 P.2d 433].)” (People v. Sandoval (2007) 41 Cal.4th 825, 847-848.)
Our review of the trial court’s ruling on defendant’s Pitchess motion is also governed by an abuse of discretion standard. “A trial court’s decision on the discoverability of material in police personnel files is reviewable under an abuse of discretion standard. (People v. Breaux (1991) 1 Cal.4th 281, 311-312 [3 Cal.Rptr.2d 81, 821 P.2d 585].)” (People v. Jackson (1966) 13 Cal.4th 1164, 1220-1221.)
B. Upper Term Sentence
Defendant contends that the trial court abused its discretion in imposing an upper term five year sentence on her second degree robbery conviction. According to defendant, the upper term was not warranted because she had no prior criminal history, no weapon was used in the robbery, and Walker’s injuries consisted of only bruises and scrapes.
Penal Code section 1170, subdivision (b) provides: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.... In determining the appropriate term, the court may consider the record in the case, the probation officer’s report, other reports including reports received pursuant to Section 1203.03 and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing. The court shall select the term which, in the court’s discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected and the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law. A term of imprisonment shall not be specified if imposition of sentence is suspended.”
A trial court may impose an upper term sentence when circumstances in aggravation outweigh those in mitigation. (Cal. Rules of Court, rule 4.420(b); People v. Nevill (1985) 167 Cal.App.3d 198, 202.) “Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728 [55 Cal.Rptr.2d 26, 919 P.2d 640].)” (People v. Black (2007) 41 Cal.4th 799, 813.) California Rules of Court, rule 4.421 provides that circumstances in aggravation include factors relating to the crime and factors relating to the defendant. The rule enumerates twelve factors relating to the crime that may be considered in determining circumstances in aggravation.
California Rules of Court, rule 4.421(a) provides: “(a) Factors relating to the crime [¶] Factors relating to the crime, whether or not charged or chargeable as enhancements include that: [¶] (1) 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; [¶] (2) The defendant was armed with or used a weapon at the time of the commission of the crime; [¶] (3) The victim was particularly vulnerable; [¶] (4) The defendant induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in its commission; [¶] (5) The defendant induced a minor to commit or assist in the commission of the crime; [¶] (6) The defendant threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way illegally interfered with the judicial process; [¶] (7) The defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed; [¶] (8) The manner in which the crime was carried out indicates planning, sophistication, or professionalism; [¶] (9) The crime involved an attempted or actual taking or damage of great monetary value; [¶] (10) The crime involved a large quantity of contraband; and [¶] (11) The defendant took advantage of a position of trust or confidence to commit the offense. [¶] (12) The crime constitutes a hate crime under section 422.55 and: [¶] (A) No hate crime enhancements under section 422.75 are imposed; and [¶] (B) The crime is not subject to sentencing under section 1170.8. ‘
Here, the trial court found several factors relating to the crime to be circumstances in aggravation. According to the trial court, “This was a planned, premeditated, orchestrated robbery as the court heard the evidence, with the use of physical force, in which the victim was particularly vulnerable. She sustained physical and emotional injuries. It was a violent crime. [¶] And in addition, there has, that I’ve seen, been no showing of any remorse by the defendant. The testimony, even denying making the statements to the police that was shown to be her on the tape is clear. The defendant still in a supplemental report maintains that she knew nothing about this crime. [¶] The only mitigating factor I can see is that the defendant has no record, and she raise [sic] some stability issues currently regarding her mental health. But as the probation report indicates, the crime involved aggravating facts that included great violence, the threat of great bodily harm, cruelty, viciousness in this crime. The victim was particularly vulnerable. [¶] Others were, according to the testimony, induced to participate in this crime, including a minor. [¶] The way that the crime was committed by staking out the victim in the shopping center where it was known when and where the victim would be going, and there was a recent professional relationship between the defendant and the victim, and taking advantage of a position of trust with the knowledge that the defendant knew about the victim clearly show a number of aggravating circumstances.”
The trial court’s findings concerning the circumstances in aggravation are supported by the record of the trial. As the record showed, the victim, Walker, was particularly vulnerable. (Cal. Rules of Court, rule 4.421(a)(3).) She was a woman, alone, with over $2,000 in cash in her possession who was identified to her assailants by defendant as they waited for her to arrive at the bank to make the daily cash deposit. Because the time and location of the daily deposits were well known to defendant, Walker was subject to an ambush by three men recruited by defendant as Walker went from her car to the bank.
The record also contained evidence that defendant induced others to participate in the robbery and assumed a position of leadership over the group. (Cal. Rules of Court, rule 4.421(a)(4).) McGlerkin testified that defendant planned the robbery and pointed out the victim to the others as the intended target of the robbery. That evidence supports an inference that defendant was the leader, or at least one of the leaders, of the group that assaulted and robbed Walker.
Similarly, the evidence supported a finding that defendant induced a minor to participate in the robbery. (Cal. Rules of Court, rule 4.421(a)(5).) Yarbrough and Little Crip were both minors and the evidence supports a reasonable inference that defendant recruited them to assist in the robbery. Little Crip was selected to take the bag containing the cash from Walker and Yarbrough kept watch for Walker’s arrival at the bank along with defendant.
In addition, there was substantial evidence showing that the crime involved planning, sophistication, or professionalism. (Cal. Rules of Court, rule 4.421(a)(8).) The group staked out Starbucks on the day of the robbery to confirm that Walker was working that day, making her the employee likely to deposit the cash. They then waited at the mall for two hours and watched for Walker to arrive at the bank, changing locations at least three times. Defendant and Yarbrough, the two members of the group that Walker knew and could identify, stayed in the car while the other three men, whom Walker did not know, took up positions at the front of the bank. Little Crip, a minor, was selected to assault and rob Walker while the two other men acted as lookouts and defendant waited in the get away car with the engine running.
Moreover, there was evidence that defendant took advantage of a position of trust and confidence to commit the robbery. (Cal. Rules of Court, rule 4.421(a)(11).) Defendant, through her shift supervisor position, knew when and where the cash deposits were made and knew the typical amount of such deposits. She also knew that Walker would be making the deposit the day of the robbery and that Walker would be alone as she went from her car in the parking lot to the entrance of the bank. That information—acquired by virtue of defendant’s shift supervisor status—allowed the group to stake out the bank and then take up positions in front of the entrance as Walker approached with the deposit. But for defendant’s employment at Starbucks, that plan could not have been devised.
Finally, as the trial court noted, defendant showed no remorse. To the contrary, when confronted with her own tape recorded admissions made during her interview by Detective Sabosky, defendant denied that the voice on the tape was hers. Her mother, however, stated that the voice on the tape was defendant’s voice.
Given the evidence in support of the foregoing factors relating to the robbery, it was not arbitrary or capricious for the trial court to find that the circumstances in aggravation outweighed the circumstances in mitigation. Although defendant did not have a criminal record and no weapon was used in the commission of the robbery, it was not unreasonable for the trial court nevertheless to conclude that those mitigating factors were outweighed by the other factors relating to the crime. Accordingly, it was not an abuse of discretion for the trial court to impose the upper term sentence under the circumstances of this case.
Defendant also suggests that the trial court, when assessing factors in mitigation, ignored evidence that defendant was mentally unstable at the time of sentencing. Defendant, however, made no such argument in her sentencing memorandum or at the sentencing hearing, and the prosecutor denied that there were any mental stability issues. Moreover, the trial court acknowledged the statement in the probation report about defendant’s mental health, but concluded that the circumstances in aggravation outweighed any such mitigating circumstance.
C. In Camera Review
Defendant contends that under People v. Mooc (2001) 26 Cal.4th 1216, we are authorized to review the record of the trial court’s in camera review of the personnel records of Detectives Trani and Sabosky that were produced in response to defendant’s Pitchess motion. According to defendant, if we review that record and determine that the trial court failed to order discoverable records produced, we should reverse the judgment.
“When a trial court concludes a defendant’s Pitchess motion shows good cause for discovery of relevant evidence contained in a law enforcement officer’s personnel files, the custodian of the records is obligated to bring to the trial court all ‘potentially relevant’ documents to permit the trial court to examine them for itself. ([City of]Santa Cruz [v. Municipal Court] 49 Cal.3d [74,] 84.) A law enforcement officer’s personnel record will commonly contain many documents that would, in the normal case, be irrelevant to a Pitchess motion, including those describing marital status and identifying family members, employment applications, letters of recommendation, promotion records, and health records. (See Pen. Code, § 832.8.) Documents clearly irrelevant to a defendant’s Pitchess request need not be presented to the trial court for in camera review. But if the custodian has any doubt whether a particular document is relevant, he or she should present it to the trial court. Such practice is consistent with the premise of Evidence Code sections 1043 and 1045 that the locus of decisionmaking is to be the trial court, not the prosecution or the custodian of records. The custodian should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive to the defendant’s Pitchess motion. A court reporter should be present to document the custodian’s statements, as well as any questions the trial court may wish to ask the custodian regarding the completeness of the record. (See People v. Jackson [(1996)] 13 Cal.4th [1164,] 1221, fn. 10 [explaining that this court ‘reviewed the sealed record of the in camera proceeding’].)” (People v. Mooc, supra, 26 Cal.4th at pp. 1228-1229.)
“The trial court should then make a record of what documents it examined before ruling on the Pitchess motion. Such a record will permit future appellate review. If the documents produced by the custodian are not voluminous, the court can photocopy them and place them in a confidential file. Alternatively, the court can prepare a list of the documents it considered, or simply state for the record what documents it examined. Without some record of the documents examined by the trial court, a party’s ability to obtain appellate review of the trial court’s decision, whether to disclose or not to disclose, would be nonexistent. Of course, to protect the officer’s privacy, the examination of documents and questioning of the custodian should be done in camera in accordance with the requirements of Evidence Code section 915, and the transcript of the in camera hearing and all copies of the documents should be sealed. (Footnote omitted.) (See People v. Samayoa (1997) 15 Cal.4th 795, 825 [64 Cal.Rptr.2d 400, 938 P.2d 2] [after ruling on the Pitchess motion, ‘[t]he magistrate ordered that all remaining materials be copied and sealed’].)” (People v. Mooc, supra, 26 Cal.4th at pp. 1229-1230.)
In response to defendant’s Pitchess motion, the trial court ordered the City to produce personnel records for the preceding five years relating to complaints against either Detective Trani or Detective Sabosky about falsifying police reports, dishonesty, or racial animosity. The custodian of records for the City responded and produced records that the trial court reviewed in camera. That review with the custodian was transcribed by the court reporter and the transcript was sealed. Following its in camera review, the trial court ordered the City to produce to defendant information about one complaint against Detective Trani. No records concerning Detective Sabosky were ordered produced.
Although the sealed transcript of the trial court’s in camera review was included in the record on appeal, copies of the documents reviewed by the trial court, but not disclosed to defendant, were not included. Based on defendant’s request and the foregoing principles set forth in People v. Mooc, supra, 26 Cal.4th 1216, we reviewed that transcript and concluded that the record should be augmented to include copies of the materials reviewed by the trial court that were not disclosed to defendant. We therefore appointed the trial court to act as referee to conduct record correction proceedings.
Pursuant to that appointment, the trial court conducted further in camera proceedings on May 1 and 8, 2009, and thereafter filed with this court a report and findings concerning those further proceedings. The sealed reporter’s transcripts of those proceedings were also lodged with this court, along with copies of the documents reviewed by the trial court at the record correction proceedings, along with the minute orders for those proceedings.
We have reviewed the report and findings of the trial court, the transcripts of the record correction proceedings, and all the documents filed under seal with this court that were reviewed by the trial court at the record correction proceedings. Based on that review, as well as our prior review of the original in camera proceeding, we conclude that the trial court did not abuse its discretion as no discoverable records—other than the records relating to Detective Trani that were produced pursuant to a trial court order—were contained in the records reviewed by the court.
One document had to be, in effect, recreated.
DISPOSITION
The judgment of conviction is affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.