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People v. Baillie

California Court of Appeals, Fourth District, Second Division
Feb 25, 2011
No. E050832 (Cal. Ct. App. Feb. 25, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. RIF131366. Robert E. Law, Judge. (Retired Judge of the former Mun. Ct. for the Orange Jud. Dist. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

Richard L. Fitzer, 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, and Kevin Vienna, Deputy Attorney General, for Plaintiff and Respondent.


OPINION

RAMIREZ P. J.

A jury convicted defendant and appellant Robert Cole Baillie of voluntary manslaughter (Pen. Code, § 192, subd. (a)) and found that he had personally used a firearm (Pen. Code, § 12022.5, subd. (a)). The trial court imposed a six-year midterm sentence for the manslaughter conviction and an upper term of 10 years for the personal firearm use enhancement. Defendant contends the trial court abused its discretion by imposing the upper term for the personal firearm use enhancement. We affirm.

BACKGROUND

A. Trial

We recite only the evidence relevant to the trial court’s term selection for the personal firearm use enhancement.

On July 1, 2006, defendant and the victim argued about their finances. The argument had started while they were in the swimming pool; defendant came into the master bedroom and bathroom area to change, and so did the victim who continued the argument. Defendant grabbed his loaded.50-caliber handgun, chambered a round, and fired. The victim made a noise; defendant jerked, swung to the left, pulled the trigger, and shot the victim.

Defendant kept the loaded, large-caliber semiautomatic handgun between the bed mattress and box spring. Defendant owned many firearms, including shotguns, rifles, and several smaller caliber handguns. He kept the.50-caliber handgun out of his gun safe for home protection because it was so large that it would be difficult for a child or someone who was not “fairly strong” to chamber a round.

The police department’s range master testified about defendant’s.50-caliber handgun. The handgun was gas operated, a feature mostly found on military grade assault rifles. The recoil from firing.50-caliber bullets causes the muzzle to move “quite a bit” even for an experienced shooter like the range master. The range master opined that the.50-caliber handgun was a poor choice for home defense as smaller caliber handguns had cheaper ammunition and greater control, and the larger and faster ammunition creates a tendency to over penetrate. “[Y]ou may not want something that will go through multiple walls, or even one wall, if you are firing at a suspect who may be inside your house.” However, .357- and.44-caliber weapons also have potential for over penetration. The firearm was loaded with hollow point ammunition, which upon contact would expand and become wider than the original projectile “and actually have little sharp edges on it.” This mushroom like expansion is meant to cause tearing, ripping, and a bigger wound. If a hollow point projectile “mushroom[ed] out, ” it might slow down enough to stop inside a person. Thus, it would not over penetrate.

B. Probation Officer’s Report

As to the firearm use enhancement, the probation officer’s report stated: “In the instant matter, the defendant and victim, who were husband and wife, were in the midst of an argument with one another. As the argument continued, the defendant armed himself with a.50-caliber semiautomatic pistol. The defendant chambered a round and discharged one shot in the direction of the victim. The first bullet pierced a bathroom wall. Shortly thereafter, the defendant discharged a second round which hit the victim. [¶] The defendant’s action involved great violence and great bodily harm which indicated a great deal of willfulness and callousness. The defendant’s willingness to engage in an act of wanton violence involving the firing of a firearm at another human being indicates a serious danger to the community. In contrast, the defendant has no prior record of criminal activity or crimes of violence. The middle term of four years in state prison is therefore recommended.”

C. Sentencing

Defendant was sentenced on October 22, 2009. The trial court commenced the hearing by noting it had the case printout and probation officer’s report, but the report was not timely. Defendant’s trial counsel declined the opportunity to request a continuance, but inquired as to whether the trial court had reviewed the report as defendant’s trial counsel was planning “for the most part” to submit on the probation officer’s recommendation. The trial court confirmed it had read the report, but stated that it “didn’t need to read most of it” because it had heard the case.

The trial court recited the age of the case, and stated that it was aware from the minutes and the probation report that the conviction was after “the third trial on the charge of homicide, first-degree murder, and that on two occasions the matter was unresolved as a murder or manslaughter by the jury with a virtual equal split by the votes recorded, as [it] could see them in the minutes.” It then recited the jury’s determinations, and opined that the testimony of the children of the victim and defendant showed that defendant had “done something good in his life” and this probably swayed the jury toward the lesser included offense of manslaughter. The trial court continued, “I thought that the jury well could have convicted the defendant of murder based upon the evidence that I heard. When you have two shots of a.50 caliber handgun, one hits and strikes, one doesn’t, let’s just say the Court is skeptical. However, the jury did what the jury did.”

The trial court then provided its tentative decision. “There’s nothing either aggravating or mitigating about this as a manslaughter. It’s just a flat killing. They decided it’s manslaughter, not murder. We have an enhancement of the use pursuant to [Penal Code section] 12022.5. It’s my feeling about the case, and what I intend to do, is impose [the] middle term on the manslaughter and impose the aggravated term on the enhancement.”

The trial court then listened to letters and statements recited into the record on behalf of the defendant, and listened to a statement from defendant himself. The trial court also listened to a statement from the daughter of the victim and defendant: “I’m not going to lie. My dad was a really good guy. But taking somebody’s life is something that is wrong. I lost the best thing that I ever had in my life. My mom raised me. She was my mom. She was the sole provider for our household. And my dad can’t amount to that for me. And what he did, I forgave him. But I don’t think that six years for manslaughter for killing somebody’s whole family is worth that. I think that my dad should get a high time. No offense, but he took my mom’s life. [¶] My little brother is more depressed than I’ve ever seen in my life. And now I have to stand up and be his mom. Nobody else is here to help us. They all act like they do, but when it comes down to it, I’m the one taking care of him. And it sucks because I don’t know how to do it properly. [¶] I love my dad and I think the six-year minimum for manslaughter is all right. When it comes to the gun charge, I think he should do the 10 years because of the fact that he didn’t just pull that trigger once. He pulled it twice. [¶] And how did you not figure that out the first time after shooting it? How did you not notice you were shooting your wife or shooting at her? How did you not think about your kids and what you were going to do to our lives and what you have already? You ruined your son’s life. You ruined my life. And I’ll never have something back. I’ll never, ever have my mother back. And to think that somebody might get 10 years for taking somebody’s life? It’s not enough. Especially when that person would believe in the death penalty before this. [¶] It’s not fair. I just miss my mom. I wish I could have her. She was t[ak]en away from me.”

Defendant’s trial counsel argued in favor of the probation officer’s recommendation for the midterm for the personal firearm use enhancement. After reciting the thoroughness of the report, counsel noted that the recommendation was based upon only the single mitigating factor that defendant had no prior record. Counsel asserted that there were other factors in mitigation, and only some of those were reflected in the jury’s verdict of manslaughter rather than murder. These factors were: the victim was an initiator and provoker (Cal. Rules of Court, rule 4.423(a)(2)); the crime was committed due to an unlikely to recur great provocation (rule 4.423(a)(3)); defendant suffered from repeated or continuous psychological abuse from the victim not amounting to a defense (rule 4.423(a)(9)); and defendant voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process (rule 4.423(b)(3)). Counsel also asserted that the quickness in which the jury reached its verdict indicated that the case was not as close as the trial court believed.

Undesignated rule references are to the California Rules of Court.

The People challenged defendant’s assertion that he was provoked or had been abused by characterizing defendant’s defense as the victim “was a bitch” who “deserved killing.” The People stated that defendant being provoked by the victim’s comments were a factor in mitigation, as the comments “broke the camel’s back, ” but the weakness of the provocation (a husband being blamed by his wife for losing a large investment) was also a factor in aggravation, and that reducing “this killing down to a mid term” would be applying the provocation factor. Yet, the People also asked the trial court to send a message that “being mean... is not a basis for killing [the victim].” The People then submitted on the tentative, “simply because [the daughter] has indicated that’s what she feels would be fair.”

The trial court then announced its sentence: “Interestingly enough, the variety of prison sentences are as follows: 6, 7, 9, 10, 13, 15, 16, and 21 years. Those are all choices that the Court has available to it in this case. And those are the only choices. [¶] Interestingly, there were three trials... 23 [votes] for murder and the balance for manslaughter. Fortunately for the defendant, he got 12 of them in one trial. [¶] Of course, I read the probation report. And it’s always interesting to see what someone who has a minimal amount of experience in the criminal justice system thinks is appropriate. I am acquainted with the various aggravating and mitigating factors. Been dealing with those for quite a period of time. None of those things are mandated anymore for the Court to consider. They are now things that the Court—and I think the Court should consider. It is an attempt by those who feel that they have wisdom in the justice system to assist us neophytes to resolve in our minds what is important and not important to consider in appropriate sentencing. [¶] So I looked at what the probation report suggested, and I concluded that the things in aggravation that they talked about... fundamentally exist in the crime and the findings that the jury made. And I’ll tell you why. [¶] There is no greater violence or bodily harm than death. So manslaughter encompasses the death of the human. Therefore... that aggravating fact is something the Court is not really considering in this case. [¶] The defendant was armed with a weapon. The enhancement the jury found to be true is the use of a weapon. [¶] I do find that the victim was particularly vulnerable in these circumstances because of the location and what had occurred on that particular day and how the day was ending. [¶]... No prior criminal activity is... the case. And that is a mitigating factor. [¶] And the Court thinks it’s unlikely the defendant will reoffend. However, when you kill your only wife and you don’t have another one, that is not a big factor. You have accomplished what you set out to do. I would suspect that [defendant], when he returns to society, is not likely to find another wife. And I hope someone mentions to any prospective brides what happened to the last wife just as a matter of courtesy. [¶]... The conduct of the victim... has been considered in the verdict of manslaughter for murder. Not going to use it in mitigation. [¶]... [¶]... the... provocative conduct is weak. I do not think arguments about financial matters should ever give rise to killing someone, your spouse. But there were more underpinnings to it in this case. And that’s what the jury did. So I’m accepting this jury’s understanding of human frailties and the things that people do to others under the circumstances, and that’s why we got 12 of them. But I don’t think it’s strong. And I’m not going to mitigate my judgment based upon the fact that there are arguments about money and the fact she caused some of the arguments. [¶] I don’t think that the early recognition of criminal conduct exists in this case. Early recognition that he just shot his wife, yes. But from my perspective, it did not appear that there was an early admission of criminal conduct. It was just an admission of the act with an explanation that it was an accident. [¶] I read carefully the transcript of his statement and all of the statements that were made. He came very close to adopting the officer’s statement that he fired one round, she moved, and he reacquired the target and fired another round. Well, he didn’t adopt that as what had happened. He said it was a second accidental, unintentional firing of a.50 caliber. Okay. He intended, but he was aggravated. [¶] Therefore, I arrived at where I arrived at before, for the manslaughter, which is killing someone with reduced heat of passion the jury found. It’s not an unusual husband-wife shooting. Most people are killed by their spouses. There’s nothing about this killing that makes it substantially different from any other. Not mitigated, not aggravated, just straight old killing your spouse. And that’s worth the middle term. [¶]... [¶] The enhancement. In considering how to deal with the enhancement, I arrived at the aggravated term for the facts and circumstances over a weak provocation, two shots, the weapon of choice, the vulnerability. I take those and applied it to my consideration of the enhancement. Therefore, I arrived at the aggravating term for the enhancement of 10 years, making the total commitment 16 years in State prison.”

DISCUSSION

Defendant contends the trial court abused its discretion because the factors in aggravation relied upon by the trial court were invalid or illogical, the trial court failed to properly consider the probation report, and the trial court failed to consider factors in mitigation. The People contend the imposition of the upper term for the enhancement was proper. We agree with the People.

“If an enhancement is punishable by one of three terms, the court shall, in its discretion, impose the term that best serves the interest of justice, and state the reasons for its sentence choice on the record at the time of sentencing.” (Pen. Code, § 1170.1, subd. (d).) Any criteria reasonably related to a discretionary sentencing choice may be relied upon by a trial court. (Rule 4.408(a).)

Sentencing decisions are reviewed for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) An abuse occurs if a trial court “relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.” (Ibid.) 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.) In reviewing for abuse of discretion, we may not substitute our judgment for that of the trial court. (People v. Carmony (2004) 33 Cal.4th 367, 377.) Even if we might have ruled differently in the first instance, we will affirm the trial court’s ruling as long as the record shows the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law. (Id. at p. 378.) A single aggravating circumstance is sufficient for the trial court to impose an upper term sentence. (People v. Black (2007) 41 Cal.4th 799, 812-814.)

A. Stated Reasons

The trial court cited four reasons for selecting the upper term: “weak provocation, two shots, the weapon of choice, the vulnerability.” We reject defendant’s challenges to all four.

Defendant did not directly challenge the weak provocation reason in his opening brief, but contends he was challenging the reason by asserting that the trial court imposed the upper term because it believed defendant should have been convicted of murder.

While the trial court opined that it thought the evidence could have supported a murder conviction and that it was skeptical of the manslaughter conviction, it expressly accepted that the jury necessarily found that defendant had been provoked into a heat of passion. There is nothing improper or irrelevant about considering that defendant was provoked, but the basis for the provocation was weak and therefore warranting increased punishment for personally using a firearm based upon such objectively weak provocation. There is nothing improper or irrelevant about the trial court’s consideration of the manner in which defendant personally used his firearm to commit manslaughter as the use of the firearm is not an element of manslaughter but “merely the means by which the offense was committed.” (People v. Hansen (1994) 9 Cal.4th 300, 317, overruled on other grounds by People v. Chun (2009) 45 Cal.4th 1172, 1199.) Similarly, even if defendant selected his weapon due to its proximity, the trial court did not abuse its discretion by considering that defendant was wielding a particularly destructive large-caliber handgun that was loaded with ammunition intended to cause additional harm on impact. Lastly, we agree that the victim was particularly vulnerable as she was in her own home, with her spouse, carrying on an argument that had occurred many times before without the defendant resorting to his.50-caliber handgun.

B. Consideration of Mitigating Factors and the Probation Officer’s Report

Even though the trial court made statements that may be interpreted as being disparaging of the probation officer’s report or the sentencing factors recited in the rules, it agreed that the factors were important for it to consider, and it was aware of the factors recited in the probation officer’s report and asserted by defendant’s trial counsel. Thus, there is no indication that the trial court failed to consider any relevant factor. Furthermore, while defendant contends the trial court should have accorded his asserted mitigating factors more weight, we note that we do not reweigh factors. (People v. Carmony, supra, 33 Cal.4th at p. 378.) Accordingly, we find no abuse of discretion.

DISPOSITION

The judgment is affirmed.

We concur: HOLLENHORST J., CODRINGTON J.


Summaries of

People v. Baillie

California Court of Appeals, Fourth District, Second Division
Feb 25, 2011
No. E050832 (Cal. Ct. App. Feb. 25, 2011)
Case details for

People v. Baillie

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ROBERT COLE BAILLIE, Defendant…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Feb 25, 2011

Citations

No. E050832 (Cal. Ct. App. Feb. 25, 2011)