Opinion
C081691
01-31-2017
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW RUSSELL ALFONSO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 62129989D )
Defendant Matthew Russell Alfonso and three codefendants were originally charged in April 2014 with murder, assault by means of force likely to produce great bodily injury, and personally inflicting great bodily injury. The charges stemmed from their respective participation in kicking their victim to death after a dispute over an alleged attempt to steal a bicycle the previous day.
In December 2015 defendant entered into a negotiated plea of no contest to an added charge of voluntary manslaughter (Pen. Code, § 192, subd. (a)) in exchange for a prison term of either the midterm of six years--as the lowest possible sentence--or the upper term of 11 years as the lid. Ultimately, the trial court sentenced defendant to the upper term. Defendant filed a timely notice of appeal.
Defendant now contends the trial court abused its discretion in imposing the upper term because it found no mitigating circumstances despite "clear evidence" to the contrary. He adds that his counsel rendered ineffective assistance in failing to object after imposition of sentence.
As we explain, we reach defendant's claim on the merits and it fails to persuade. Accordingly, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The morning of April 24, 2014, defendant and three others assaulted the victim at a park in Roseville after accusing the victim of taking the bicycle of one of the codefendants. During the assault, the victim managed to stab one of the codefendants. Another codefendant punched the victim, knocking him down, and kicked him repeatedly in the head while he was on the ground. Defendant and the remaining two codefendants then joined in repeatedly kicking the victim in the head. The four then attempted to leave the park, but were caught by responding officers. There were multiple witnesses to the assault.
Defendant takes issue with the Attorney General's recitation of facts from the probation report recounting the police report, but recognizes that the trial court was permitted to consider these materials at sentencing. (People v. Trujillo (2006) 40 Cal.4th 165, 179; People v. Tran (2015) 242 Cal.App.4th 877, 890.) Because we review the trial court's decision based on the materials before it, we do the same.
When officers arrived, the victim was unresponsive with serious facial injuries. He died four days later of blunt force trauma to the head. When interviewed by detectives, defendant claimed the victim tried to steal a bicycle from one of the codefendants the previous day. The morning of the assault, the bicycle was gone. Defendant and the others went to the park "to obtain a free breakfast" and saw the victim there. Defendant claimed the victim started the physical fight by stabbing one codefendant, at which point another codefendant "reengaged." Defendant "stated he pushed [the codefendant] and the victim away to distance himself from the fight." He told the officers that another of his companions "joined in the fight once the victim was down and kicked him" but denied that he (defendant) himself had personally participated in the beating.
The factual basis for defendant's plea stated in relevant part that the victim died due to injuries caused by the four defendants, that multiple witnesses observed defendant kicking the victim in the head, and that the whole incident was provoked by a sudden quarrel over a bicycle and the victim's stabbing of the codefendant. Defense counsel accepted the factual basis "for purposes of entering a plea." As part of his plea agreement, defendant agreed to provide a truthful statement to probation. Sentencing was originally set for February 9, 2016.
On January 29, 2016, defendant filed two letters with the court; the first was addressed to the victims' family and friends and the second to the "community." Both letters sought forgiveness; his second letter described the assault as "a tragic and heartbreaking incident."
In its report prepared on February 2, 2016 (filed on February 22), the probation department recommended the upper term of 11 years in prison as "there are numerous aggravating factors in this [c]ase." The report first set out a short recorded statement by defendant which did not mention his personal participation in the assault, and then described a detailed interview with defendant by the probation officer. When questioned about his participation, defendant admitted that at some point after the fight started he "kinda pushed" the victim down to the ground as the victim tried to get to his feet during the beating. He added that the pushing down had been "to tell him not to get up." He then said that after the victim was unconscious he had kicked him: " 'I'm not gonna lie. I kicked him in the side. I didn't kick him in the head.' " He told the probation officer he participated (to this limited degree) because: "I really just didn't know what was going on and I just thought [the victim] had a knife. I was scared for my life, really, is what was, what was happened. He already stabbed one person and he's swinging this knife around while he lies on the ground." Defendant told the probation officer that the witnesses (who had described him as actively involved in the assault) were "bias[ed] . . . for sure" and insisted that he "didn't do anything to harm [the victim]." He admitted not calling for help after the assault stating: "Why should I call the cops? The way I was raised, my mother told me that if it's not your business, you don't call the cops."
The probation officer concluded that "although the defendant acknowledged some wrongdoing in the instant offense, it appears he minimized his role. [He] stated his motivation for kicking this victim was due to him being scared." Further, he "stated his actions did not do anything to harm this victim." He had the opportunity to decline to participate and leave the scene but did not, and did not report the assault but instead left the unconscious victim and fled the park with the other codefendants.
The reporting officer noted the following factors in aggravation: "the manner in which the crime was carried out indicates planning, sophistication, or professionalism" (Cal. Rules of Court, rule 4.421(a)(8)); defendant's "violent conduct" indicates "a serious danger to society" (rule 4.421(b)(1)); defendant's convictions (2009 battery and 2010 vandalism, both misdemeanors) were increasingly serious when combined with the instant offense (rule 4.421(b)(2)); and defendant's prior performance on probation or parole was unsatisfactory (rule 4.421(b)(5)). The probation officer noted no circumstances in mitigation under rule 4.423. The report briefly discussed a psychological evaluation of defendant conducted in May 2015, in which defendant denied directly participating in the assault and reported treatment for depression several years before the evaluation. The evaluating doctor noted defendant's low self-esteem and passive nature, and recommended psychotherapy.
Further rule references are to the California Rules of Court. --------
On February 4, 2016, defense counsel filed a sentencing memorandum/statement in mitigation arguing for the midterm of six years. As relevant here, counsel cited defendant's "minor misdemeanor convictions," claimed defendant suffered from dyslexia and major depression, and argued his statements to police were truthful and that he did not plan or encourage the attack on the victim.
At the sentencing hearing held on February 9, 2016, the trial court indicated that it had read and considered the plea transcript, the probation report, and defendant's sentencing memorandum, and had received the two letters written by defendant and would read them before ruling. The People argued that defendant had minimized his involvement to the police as well as to the probation officer, that his statements were "all over the place," and that he was "in denial about what his actual involvement actually was." They agreed with the probation report and its recommendation of 11 years in prison. Defense counsel discussed the mitigating factors listed in his written filing, and claimed defendant had expressed remorse and given a "complete statement" to the probation officer. Counsel emphasized that although defendant had committed other offenses while on probation, he was not on probation at the time of the instant offense--a point with which the court agreed. Citing the psychological evaluation, counsel argued that defendant was "easily swayed" and "easily [led]." The court took the matter under submission and continued the sentencing to February 22.
On February 22, 2016, the parties again appeared for sentencing. After noting that it had now read defendant's letter of January 29, the trial court noted that it had considered the facts in "aggravation and mitigation as set forth in [rules] 4.421 and 4.423." In aggravation, the court found that the crime involved great violence and a high degree of cruelty, viciousness, and callousness (rule 4.421(a)(10)); the victim was particularly vulnerable (rule 4.421(a)(3)); defendant induced others (rule 4.421(a)(4)); and there was planning involved in the offense (rule 4.421(a)(8)). The court opined that the group went to the park specifically to find the victim and also that all participants had "egged each other on." The court noted that although defendant did not have any felony convictions, he had convictions for violence--battery--and misdemeanor vandalism. The court then stated: "I don't find there were any factors in mitigation in this senseless crime. [¶] Therefore, the Court has carefully evaluated all these factors and I am going to select the upper term." Defense counsel then asked whether the court had reviewed his filed statement in mitigation, to which the court responded: "I did review that. As I indicated at the sentencing hearing, I read that at the time of the sentencing hearing and I read it again."
DISCUSSION
Defendant argues that the trial court abused its discretion by declining to find any factors in mitigation--a finding which counsel couches as contrary to the evidence. The People briefly argue forfeiture based on trial counsel's failure to specifically object to the disputed findings and corresponding imposition of the upper term, then address the merits.
Although defendant also argues counsel's performance was deficient in failing to object to the court's finding that there were no mitigating factors, we need not address this alternative argument because it is clear that any objection would have been futile. Counsel had filed a written statement of mitigation seeking the middle term which the trial court had twice reviewed. Counsel had appeared twice and argued extensively (orally as well as in writing) for the middle term, and had presented numerous purportedly mitigating factors to the court. Additional quarrel with imposition of the upper term sentence and the specific findings cited by the trial court in its support would have been futile. (See People v. Anderson (2001) 25 Cal.4th 543, 587 ["[c]ounsel is not required to proffer futile objections"].)
Further, the trial court is not required to explain its reasons for finding the absence of mitigating factors. (People v. Lai (2006) 138 Cal.App.4th 1227, 1258.) And, although defendant claims repeatedly that many mitigating factors were "undisputed," the record does not support this reading.
Defendant first argues he cooperated with the police and "acknowledged wrongdoing early on." (See rule 4.423(b)(2), (3).) However, as we have explained at length ante, the probation report disputed this claim by setting forth defendant's minimization of his role in the offense and contradictory statements regarding it. Defendant next claims remorse; however, whether defendant's expressed remorse was genuine was called into question by the fact that his letter purporting to express remorse was written nearly two years after the victim's death, as well as his minimization of his role.
Defendant also argues provocation by the victim and inducement by his codefendants (see rules 4.423(a)(2), (3), (5)), but the application of these factors to defendant is far from undisputed. As the trial court noted, the record also supports a conclusion contrary to defendant's--that he and his companions went to the park in search of the victim and the victim stabbed the codefendant in self-defense. Lastly, as the trial court found, defendant's criminal history was recent, suggested violence, and included the commission of other offenses while on probation. Certainly it was disputed that rule 4.423(b)(1) could possibly be stretched to classify defendant's prior record as insignificant, despite defendant's unsupported assertion to the contrary.
As to each of these purportedly mitigating factors advanced by the defense, the trial court was well within its discretion to discount their application to defendant's case given that the evidence supported reasonable inferences that countered defendant's arguments for leniency. Hence the trial court's conclusion: "I don't find there were any factors in mitigation in this senseless crime."
Finally, regardless of the presence or absence of mitigating factors, the trial court found multiple aggravating factors which are supported by the record and unchallenged on appeal; a single aggravating factor warrants imposition of the upper term. (People v. Sandoval (2007) 41 Cal.4th 825, 848; People v. Lamb (1988) 206 Cal.App.3d 397, 401.) We see no abuse of discretion.
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Nicholson, Acting P. J. /s/_________
Murray, J.