Opinion
C081356
01-24-2017
THE PEOPLE, Plaintiff and Respondent, v. GREGORY SCOTT ASHMAN et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F01339)
In this consolidated case, defendants Gregory Scott Ashman and Frank Vincent Sierras appeal from their respective convictions stemming from an assault with a semiautomatic firearm on Gregory Jacobs.
On appeal, Sierras contends the trial court erred in imposing the upper term for the firearm enhancement. (Pen. Code, § 12022.5, subd. (a).) We disagree.
Undesignated statutory references are to the Penal Code.
Appointed counsel for Ashman has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Ashman filed a supplemental brief, contending the trial court abused its discretion by imposing the midterm sentence, failing to grant probation, and failing to impose a split sentence. Ashman also contends he should "have a sentence at [less than] 85%," presumably challenging the calculation of credits. We disagree.
With respect to both Sierras and Ashman, the trial court failed to orally dismiss the remaining charges and enhancements as had been agreed between the parties, and, in the interests of judicial economy, we will do so. The judgments against Ashman and Sierras are otherwise affirmed.
I. BACKGROUND
In the early morning of April 5, 2015, Sierras and two of his friends were involved in a fight at a bar. Ashman, who was Sierras' roommate, had been at the bar but had already left. The police arrived and spoke with Sierras and the two friends, who all appeared intoxicated. That day, both Sierras and Ashman drank "heavily," took Xanax, and smoked marijuana. Sierras' friends promised to get him home and the police let them go.
After the police left, Ashman returned to the bar to pick up Sierras and the two friends. Although they initially left the bar, Sierras insisted they return so he could confront the man he fought with. Ashman parked nearby and all four men returned to the bar, with Sierras leading the way. Ashman was armed with a .40-caliber semiautomatic handgun. The bouncers refused to let the men in, and a shoving match broke out. Ashman drew his gun, "racked a round into the chamber," and pointed it at the bouncers. A friend of the bouncers knocked the gun away from Ashman and punched him. The gun fell to the ground and Sierras picked it up, racked the slide back, and fired. Jacobs, who was trying to assist the bouncers, was hit in the back by the bullet. Jacobs was hospitalized for two months after the shooting and suffered two collapsed lungs and permanent paralysis from the chest down. Jacobs had been an avid outdoorsman whose injuries caused him to lose his career in the boating industry and his ability to participate in bass fishing tournaments.
Both Ashman and Sierras were charged with attempted murder (count 1) and assault with a semiautomatic firearm (count 2). With respect to count one, multiple firearm enhancements were further alleged against Ashman and against Sierras. With respect to count two, a semiautomatic firearm use enhancement was also alleged against Ashman and Sierras. Also with respect to count two, it was alleged Sierras personally inflicted great bodily injury. A. Sierras' Plea Agreement and Sentencing
Sierras reached a plea agreement with the People under which he pleaded no contest to count two and admitted a firearm use enhancement and great bodily injury enhancement. (§§ 245, subd. (b), 12022.5, subd. (a), 12022.7, subd. (b).) The agreement did not stipulate a sentence, but noted a maximum potential term of 24 years in prison.
The probation report recommended Sierras be sentenced to an aggregate term of 24 years, with the high term of nine years for count two, the high term of 10 years for the firearm use enhancement, and five years for the great bodily injury enhancement. The report identified mitigating circumstances, including Sierras' youth and minimal prior criminal record. (Cal. Rules of Court, rules 4.423(b)(1), 4.408.) The report also identified aggravating circumstances, including that the crime involved great violence and great bodily harm, Sierras had engaged in violent conduct which indicated a serious danger to society, and Sierras was on probation when the crime was committed. (Rules 4.421(a)(1), (b)(1) & (b)(4).)
All further rules references are to the California Rules of Court. --------
During the joint sentencing hearing, Sierras' counsel requested a lower sentence, arguing Sierras was remorseful, had a minimal criminal history, was young, and had accepted responsibility early in the proceedings. In addition, there were unusual circumstances in the commission of the offense, including Sierras' intoxication. Also, Ashman started the fight with the bouncers by brandishing the gun, and Sierras was arguably defending himself when he picked up the gun and fired it. Sierras' counsel also argued the trial court could not consider as an aggravating circumstance the crime's violence and resulting bodily harm because Sierras' punishment already included a sentence enhancement for great bodily injury under section 12022.7. Sierras and his aunt read statements to Jacobs expressing their regret and asking for forgiveness. The People argued for the upper term, due to Sierras' lack of remorse and his role of instigating the incident by going back into the bar to confront people and picking up the gun when it fell to the ground.
The trial court sentenced Sierras to prison for 21 years, as follows: the midterm of six years for count two, the upper term of 10 years for the firearm use enhancement, and five years for the great bodily injury enhancement. The trial court noted "the gravity of the crime as expressed through the injuries of the victim, and that colors everything in this case." The trial court was "mindful" that neither Ashman nor Sierras were career criminals and that there were "situational aspects to this horrible crime." Still, the court continued, "it was [Sierras'] finger on the trigger and [Sierras'] conduct that directly and irrevocably resulted in the life that [Jacobs] must lead . . . . [¶] . . . [A]ll of the mitigating and aggravating circumstances that have been referenced by [the parties' counsel] have to be evaluated through a lens of what happened to the victim. They're all in play, but they have to be evaluated though the lens of what happened to [Jacobs]." B. Ashman's Plea Agreement and Sentencing
Ashman and the People reached a plea agreement under which he pleaded no contest to count two and admitted the firearm use enhancement. (§§ 245, subd. (b), 12022.5, subd. (a).) In exchange, the parties agreed (a) all remaining counts and enhancement allegations would be dismissed and (b) the aggregate sentence would not exceed 10 years, with no more than the midterm of six years for count two and no more than the midterm of four years for the firearm use enhancement.
The probation report recommended Ashman be sentenced to an aggregate term of 10 years, with the midterm of six years for count two and the midterm of four years for the firearm use enhancement. The report identified mitigating circumstances, including that Ashman had no prior criminal record, had voluntarily acknowledged wrongdoing at an early stage of the criminal process, and had led a productive life. (Rules 4.423(b)(1) & (b)(3), 4.408.) Still, the crime involved great violence and great bodily harm, and Ashman had engaged in violent conduct which indicated a serious danger to society. (Rule 4.421(a)(1) & (b)(1).) The report further noted Ashman was ineligible for probation and did not recommend probation because of the nature and seriousness of the offense.
A court-appointed psychologist recommended probation, concluding Ashman "is a man who is not criminally oriented [¶] . . . [¶] [and] does not present as a person who, when left to his own devices, would be presenting as a danger in the community." According to the psychologist, Ashman suffered from depression and anxiety, and was a "dependent and insecure young man who is inclined to allow others to exploit him even if it is against his better judgment." The psychologist noted Ashman acknowledged his role in the assault and expressed remorse.
During the joint sentencing hearing, Ashman's counsel requested probation or a lesser sentence, arguing Ashman was remorseful, had no criminal history, and accepted responsibility early on. Although Ashman was an active participant in the assault, according to counsel, Ashman never fired the gun and only pulled it out when he saw his friend, Sierras, involved in a fight. In addition, Ashman's intoxication contributed to his poor judgment. A letter from Ashman to Jacobs was read during the hearing, expressing his regret and asking for forgiveness.
Agreeing with the probation report, the trial court denied probation and sentenced Ashman to an aggregate 10 years in prison, six years for count two and four years for the firearm use enhancement. C. Motion to Dismiss Remaining Allegations Against Ashman and Sierras
Although the trial court noted during the joint sentencing hearing there was an outstanding motion to dismiss the remaining allegations and enhancements against Ashman and Sierras, it failed to rule orally on this issue. A minute order states the remaining charge and enhancements were dismissed against Ashman at judgment and sentencing. A separate minute order states count one was dismissed against Sierras at judgment and sentencing.
Neither Ashman nor Sierras sought a certificate of probable cause on appeal.
II. DISCUSSION
A. Sierras
Sierras contends the trial court abused its discretion in imposing the upper term on the firearm use enhancement. According to Sierras, the factors in mitigation outweighed the factors in aggravation due to his extreme intoxication during the assault, minimal criminal record, model inmate behavior, expressed desire to make victim restitution, and admission of wrongdoing by pleading no contest. Sierras also contends the trial court erred by considering Jacobs' permanent paralysis as an aggravating factor because the court already relied on that fact to prove the great bodily injury enhancement.
A trial court's decision to impose the upper term is subject to review for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) A trial court abuses its discretion only if it "relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision." (Ibid.) An upper term sentence may be based upon "any aggravating circumstance that the court deems significant . . . [and] 'reasonably related to the decision being made.' " (Id. at p. 848, quoting rule 4.408(a).) " 'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] 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.' " (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978; accord, People v. Lai (2006) 138 Cal.App.4th 1227, 1258-1259.)
To the extent the trial court erred by evaluating the aggravating and mitigating circumstances in light of Jacobs' injuries when it imposed both the upper term for the firearm use and great bodily injury enhancements, any such error was harmless. (See People v. Osband (1996) 13 Cal.4th 622, 728-729 [improper dual use of same fact for imposition of both an upper term and a consecutive term was harmless where "the court could have selected disparate facts from among those it recited to justify the imposition of both a consecutive sentence and the upper term"]; People v. Coleman (1989) 48 Cal.3d 112, 166 ["[i]mproper dual use of the same fact for imposition of both an upper term and a consecutive term or other enhancement does not necessitate resentencing if '[it] is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error' "].) The record supports the additional aggravating factors considered by the trial court, namely that Sierras (1) induced others to participate in the assault by demanding they return to the bar so he could confront the person he fought with initially, (2) engaged in violent conduct constituting a serious danger to society, and (3) was on probation when the crime was committed. (Rule 4.421(a)(4), (b)(1) & (b)(4).) Each of these factors was individually sufficient to justify imposition of the upper term. (People v. Osband, supra, at pp. 728-729 [a single aggravating factor is sufficient to impose an upper term].) We reject Sierras' challenge to the sentence. B. Ashman
We appointed counsel to represent Ashman on appeal. Counsel filed an opening brief that sets forth the facts of the case and asks us to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Counsel advised Ashman of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. We received a timely supplemental brief from Ashman. He contends the trial court abused its discretion in imposing a 10-year sentence because he has no criminal history and he was heavily intoxicated during the assault. He also contends he did not assault Jacobs with a semiautomatic firearm or personally use a firearm on Jacobs. Additionally, he contends he should "have a sentence at [less than] 85%." Finally, he contends the trial court erroneously refused to grant probation or a split sentence. (§§ 1170, subd. (h)(5), 1203, subd. (e)(2).) We find no merit in Ashman's contentions.
1. Midterm sentence
As previously discussed, we review a trial court's sentencing decision for abuse of discretion. (People v. Sandoval, supra, 41 Cal.4th at p. 847.) A single factor in aggravation may support a sentencing choice (People v. Quintanilla (2009) 170 Cal.App.4th 406, 413) and here, Ashman engaged in violent conduct, which indicates a serious danger to society, and the crime involved great violence and great bodily harm. (Rule 4.421(a)(1) & (b)(1).) In addition, despite Ashman's contentions, he admitted during his plea that he personally used a firearm and assaulted Jacobs with a loaded operable .40-caliber semiautomatic handgun. The trial court was aware of and considered Ashman's intoxication that evening. We find no abuse of discretion.
2. Probation and split sentence
Despite Ashman's contentions, he is ineligible for local custody or a split sentence because his current crime, assault with a semiautomatic firearm with a firearm use enhancement under section 12022.5, is a serious and violent felony. (§§ 667.5, subd. (c)(8), 1170, subd. (h)(3), 1192.7, subd. (c)(31).)
With respect to whether the trial court erred in refusing to grant probation, a defendant who uses a deadly weapon while committing a crime is statutorily ineligible for probation "[e]xcept in unusual cases where the interests of justice would best be served if the person is granted probation . . . ." (§ 1203, subd. (e)(2).) Courts narrowly construe "unusual cases" and "interests of justice," and limit such grants of probation "to those matters in which the crime is either atypical or the offender's moral blameworthiness is reduced." (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1229; see rule 4.413(c) [setting out criteria which "may" indicate the existence of an unusual case].)
We review for abuse of discretion a trial court's finding as to whether a case is unusual. (People v. Stuart (2007) 156 Cal.App.4th 165, 178.) A trial court has broad discretion to determine whether to grant probation, and that decision will not be reversed unless it is " 'so irrational or arbitrary that no reasonable person could agree with it.' " (Id. at p. 179.) Although mitigating factors existed, including Ashman's lack of a criminal record, it was reasonable for the trial court to conclude these did not outweigh the serious and violent nature of Ashman's crime. (See id. at p. 178 [rule 4.413's provisions are " 'permissive, not mandatory,' " and the court " 'may but is not required to find the case unusual if the relevant criterion is met under each of the subdivisions' "].) We find no error.
3. Ashman's remaining contentions
We understand Ashman's contention that he should not "have a sentence at 85%," as challenging the trial court's presentence custody credit calculation. Under section 2933.1, subdivision (c), a defendant only receives 15 percent presentence conduct credit if he or she is convicted of a violent felony such as a felony with a section 12022.5 enhancement. (See People v. Brewer (2011) 192 Cal.App.4th 457, 462; § 667.5, subd. (c)(8).) In line with the probation report, the trial court cited section 29331, subdivision (c) when it awarded Ashman a total of 246 days of credit, based on 214 days of actual time and 32 days of custody credit. We find no error.
To the extent Ashman is challenging postsentence custody credit, we note the record before us does not indicate how such credit is being calculated. Accordingly, we are unable to address the issue.
We have undertaken an examination of the entire record and find no arguable error that would result in a disposition more favorable to Ashman. C. Dismissal of Remaining Charge and Enhancements Against Ashman and Sierras
Our review of the record reveals the trial court failed to dismiss the remaining charges and enhancements at sentencing as had been agreed between the parties in both Ashman and Sierras' plea agreements. " ' "When a guilty [or nolo contendere] plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement." ' [Citations.]" (People v. Segura (2008) 44 Cal.4th 921, 930-931.) In the interests of judicial economy, we will order the remaining counts and enhancements dismissed.
III. DISPOSITION
The conviction of Sierras for assault with a semiautomatic firearm with a firearm use enhancement and great bodily injury enhancement is affirmed. The additional charge of attempted murder and the firearm use enhancements on that charge are dismissed.
The conviction of Ashman for assault with a semiautomatic firearm with a firearm use enhancement is affirmed. The additional charge of attempted murder and the firearm use enhancements on that charge are dismissed.
The judgments are otherwise affirmed.
/S/_________
RENNER, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
NICHOLSON, J.