Opinion
C080632
02-02-2017
THE PEOPLE, Plaintiff and Respondent, v. AYLALIYA ASSEFA BIRRU, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 62135054)
Defendant Aylaliya Assefa Birru challenges the six-year state prison sentence imposed by the trial court following her plea of no contest to assault with a firearm and admission of an allegation that she personally inflicted great bodily injury under circumstances of domestic violence against her husband S.D. She claims the trial court abused its discretion by refusing to consider evidence of unusual circumstances allowing for a grant of probation or, in the alternative, a mitigated sentence. She further claims the trial court abused its discretion in imposing sentence by applying an improper dual use of facts. Alternatively, defendant claims her trial attorney's failure to object to the court's dual use of facts deprived her of her constitutional right to effective assistance of counsel.
Finding each of defendant's claims lack merit, we will affirm the judgment.
I. BACKGROUND
In light of defendant's no contest plea, the facts are taken from the probation report and the factual basis stipulated to by the parties at the time of entry of the plea.
At the time of the crime, defendant and S.D. had been married four years but had only been living together since defendant moved from Ethiopia to the United States eight months prior. On December 14, 2014, defendant confronted S.D. about S.D.'s alleged infidelity and the two began arguing. S.D. called defendant a "psycho" as defendant yelled at him. Defendant went into the bedroom, retrieved a semiautomatic handgun, and returned to the living room, where she pointed the gun at S.D. and asked if she was being "psycho." She told S.D. not to move and questioned him at gunpoint about his infidelity. At one point, defendant placed the gun on the counter while still maintaining control of it. She then directed S.D. to stand up and unbutton his pants and told him she was going to "shoot [his] balls off and kill [him]." S.D. stood up and attempted to flee through the patio door. Defendant shot S.D. in the back. S.D. jumped over the patio wall and ran to the neighbor's house for help before collapsing.
The bullet hit S.D.'s right upper lung, causing it to collapse. Bullet fragments fractured his rib and right shoulder blade. The injury required medical personnel to insert chest tubes to drain the blood from S.D.'s chest cavity, and to perform surgery to remove the bullet. One-fourth of S.D.'s lung had to be removed due to extensive damage caused by the bullet, leaving him with scar tissue and permanent decreased lung capacity. A. Procedural History
Defendant was charged by criminal complaint with assault with a firearm (Pen. Code, § 245, subd. (a)(2))—count one) and corporal injury to a spouse (§ 273.5, subd. (a)—count two). The complaint alleged that, in the commission of count one, defendant personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)) and personally used a firearm (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)(1)).
Unspecified statutory references are to the Penal Code.
Defendant entered a negotiated plea of no contest to count one and admitted the personal infliction of great bodily injury allegation in exchange for dismissal of the remaining count, a sentencing lid of six years in state prison, and the opportunity to argue for probation despite being presumptively ineligible pursuant to section 1203, subdivision (e).
1. Initial Sentencing Hearing (September 18, 2015)
At the initial sentencing hearing on September 18, 2015, the trial court stated it had read and considered, among other things, the July 21, 2015, probation report and attached letter written by the victim, the People's statement in aggravation, defendant's sentencing memorandum and statement of mitigation, the letter from defense expert Dr. Linda Barnard, defendant's lengthy handwritten letter, defendant's supplemental handwritten letter, and defendant's supplemental sentencing memorandum and attached letters from family members and a friend.
According to the probation report, when police officers arrived on the scene, defendant was taken into custody without incident. Defendant told police she learned S.D. had been unfaithful during their marriage and, when she confronted him, he "became 'aggressive' towards her and they would frequently argue." Defendant also told officers S.D. would go into her closet and cut up her clothing, only to buy her clothes and gifts after the verbal fight was over. She stated that "lately, he had been pushing her and hitting her during their arguments." Defendant told police S.D. had purchased a handgun and kept it in the bedroom closet, unloaded. He also kept loaded magazines. During arguments, defendant would unload the magazines because S.D. would go into the closet and look at the gun without picking it up.
Defendant told police that, on the night before the shooting, she and S.D. argued over S.D.'s infidelity. Defendant stated she unloaded the gun and slept alone in the bedroom. The following day, the day of the offense, she and S.D. argued again. During that argument, S.D. struck defendant in the face and pushed her into the corner of a wall. Defendant said she went into the bedroom, took the handgun out of the case, and inserted an empty magazine so that "it appeared loaded." She then confronted S.D. and questioned him at gunpoint about the infidelity. When S.D. turned away to pick up his laptop computer, she pulled the trigger "to make a 'sound.' " She stated, "the gun fired and the slide locked back." Not knowing what happened, she dropped the gun and called 911. Defendant told officers she believed the gun was unloaded and did not expect it to fire.
The probation report noted that police had photographed defendant, who had swelling on her forehead and cheek. The officers "observed a light colored contusion on the right and left side of [defendant's] cheek, a slight bump on her forehead above her eye, and a small amount of blood and a laceration on the interior of her lower lip." Defendant refused medical attention but stated she felt pain on her face and right torso "due to being struck and pushed into the wall."
The probation report described defendant's probation interview, wherein she described her relationship with S.D. as " 'perfect' " in the beginning while they were together in Ethiopia. But then, when she arrived in the United States to live with S.D., the relationship quickly began to sour. They began to argue, and then "the verbal abuse began," with S.D. calling defendant " 'horrible names' " and preventing her from working outside of the home. Defendant began to suspect S.D. was being unfaithful, something she eventually confirmed after reviewing a year's worth of S.D.'s cell phone records. But when defendant confronted S.D. he denied the accusation. Then, the verbal arguments became physical. Defendant stated S.D. once threw a remote control at her, hitting her in the face. She began recording S.D. during verbal altercations "because 'he was being so aggressive.' " After each argument, S.D. would buy her flowers, perfume, and cards.
The probation report set forth defendant's description of the events leading up to the shooting. Defendant stated it began the previous day with a verbal argument during which S.D. said "hurtful things about her body." She called S.D.'s grandfather and stepmother to talk but no one answered. The day of the shooting, S.D. called defendant an " 'f-ing whore,' " which started another argument that lasted for hours. Defendant told S.D. she was leaving him and asked him to purchase a plane ticket for her to Ethiopia. S.D. brought defendant's suitcase into the bedroom and said he had scheduled a flight. Defendant stated she "panicked" and told S.D. she was not leaving. According to defendant, S.D. " 'came at[her] really bad,' " struck her in the ribs with the palm of his hand and pushed her against a wall. Defendant stated she retrieved the gun from the bedroom closet and "inserted an empty magazine" because "she felt 'maybe [she] could gain respect and maybe he would be honest with [her] and tell [her] the truth.' " She also stated she wanted to "have a 'normal conversation without name calling.' " Defendant went into the living room with the gun and began questioning S.D. "as to why he physically assaulted her and if she was still the 'whore' he married." She said S.D.'s " 'reaction was weird, not as scared as [she] thought he would be.' " She stated S.D. was not paying attention to her and giving her sarcastic answers to her questions, so she pulled the trigger "so it would make a sound to 'say pay attention.' " When she pulled the trigger, the gun fired as S.D. was "bending down fixing his pants." Defendant denied racking the gun to load a live round of ammunition, stating she believed the gun was not loaded and " '[a]pparently [S.D.] placed a bullet in the chamber.' " Defendant stated she fell down after firing the gun and, when she got up, S.D. was no longer in the apartment. She then called 911.
The probation report also noted defendant denied having experience with firearms, but acknowledged she fired the gun once (the day S.D. purchased it), and she knew what the trigger was and how the magazine ejected from the gun. She stated she would remove all of the bullets from the magazines during verbal arguments with S.D. When asked why she did not call police when S.D. was in the living room and she was in the bedroom, defendant said, " 'I was very upset, very sad. Even though I said I wanted to leave, I kept telling myself to see if it could work out one more time. I was hanging on to the one last hope, that would be it.' " She stated her motivation for shooting S.D. was " '[s]elf-defense,' " and said, " 'If I could have respect like I had, to be treated like a human being, not an animal.' " She stated the fact that she did not have anyone to consult with contributed to her "poor decision making." Defendant also expressed her remorse for " 'everything that has happened.' "
The probation report set forth the circumstances in aggravation, including that the crime involved a high degree of callousness in that defendant armed herself with a loaded firearm and held S.D. at gunpoint while interrogating him about his alleged affair. Then, when S.D. did not react the way defendant thought he would, defendant pulled the trigger "to intimidate the victim," shooting him in the back. The report also noted the manner in which the shooting was carried out indicated some degree of planning in that defendant left the living room, retrieved the gun from the bedroom, inserted a magazine and returned to the living room, "racked the gun back, and pulled the trigger, shooting her husband." The list of circumstances in mitigation included that defendant reported having been physically abused by S.D. and Dr. Barnard's opinion that the shooting "was directly related to the history of intimate partner battering inflicted by the victim."
The probation report concluded there were no unusual circumstances and recommended the court deny probation and sentence defendant to six years in state prison. In so concluding, the report noted: "After reviewing the police reports and listening to the recorded verbal altercation, it appears the defendant had an opportunity to remove herself from the alleged physical abuse and call 9-1-1, however, she chose to access a firearm, and rack the gun, which inserted a live round. Although, the defendant reported 'self-defense' as her motivation, she used the firearm not out of protection, but to interrogate the victim about his alleged affair and to intimidate him. When she did not receive the response she was expecting, she shot the victim as he was attempting to flee."
At the hearing, S.D. addressed the court regarding his relationship with defendant, and the details of the shooting. S.D. stated he "brought [defendant] into the country and provided her everything she needed," including buying her a website and merchandise to conduct her business and "be successful." He stated he "motivated [defendant] to go to school." S.D. stated he began to learn "about [defendant's] lies of her history, she got more violent and started breaking stuff around the house." He claimed she threw a stool into the wall, broke other items, and started threatening that if he "wasn't home at certain times that she would break stuff around the house." S.D. stated he feared leaving the house because defendant would start breaking things and became "really violent." S.D. stated that, on the day of the shooting, he woke up to her yelling and screaming at him. Then she "grabbed the firearm" and held him at gunpoint for five to 10 minutes. He stated he could see the bullets and saw defendant had "both fingers on the trigger." Defendant told him to stand up and said she was going to "shoot [his] balls off and kill [him]." S.D. attempted to flee out the sliding glass door. Defendant shot him in the back. S.D. felt the bullet go through his body. He called 911 as he tried to get to his neighbors' house to get help. However, he collapsed onto the ground where he laid until emergency personnel arrived. S.D. described the pain and trauma he suffered as a result of the shooting, the significant medical treatment he received, and the impact the shooting had had on his life. He asked the court to impose the "maximum sentence" and said he thought defendant was "a risk to our society" and would "come after [him] again" if released into society.
The prosecution submitted photographs of injuries sustained by both S.D. and defendant. The prosecution also played an audio recording (accompanied by a written transcript) of the events leading up to the shooting, as recorded by defendant on her cell phone. The recording lasted nine and a half minutes. For the first seven minutes, defendant and S.D. argued about a plane ticket S.D. purchased for defendant, the money they would lose by not timely cancelling the flight, and each other's alleged infidelities. Each party repeatedly cursed at the other throughout and accused the other of being unfaithful. At one point, defendant said, "Listen. Shut the fuck up. Shut up. Shut up. Shut up. Shut up right now. Just shut up." When S.D. responded, "I need the other laptop," defendant again said, "Shut the fuck up." At another point, when discussing whether the laptop computer was working, S.D. remarked, "Well, maybe if you wouldn't take it and thrown [sic] it around and stuff." Defendant responded, "I didn't throw it around." Neither party referred to any past physical violence or abuse, nor did either party physically threaten the other. The final statement on the recording was made by defendant, who said, "I want to be the fuck alone. I fucking will." Thereafter, for the remaining two and a half minutes of the recording, there was no conversation between defendant and S.D., only the sound of, what the prosecution argued was, defendant racking the gun.
The prosecution argued, "What you can hear on the audio recording—at the end of the audio recording is the [d]efendant inserting a magazine into the gun and racking the gun causing a bullet to be placed into the chamber. After she racks the gun and places the bullet in the chamber, the audio recording is turned off. She does not continue to record the subsequent conversation where she again proceeds to question the victim at [gunpoint] about an alleged affair." The prosecution argued defendant committed the crime because she was angry with her husband and was "desperately attempting to force her husband to admit to an affair." The audio recording contained no evidence that defendant was afraid or had been the victim of an earlier attack by S.D., and was turned off after defendant "racks the gun and places the bullet in the chamber." The prosecution urged the court to follow the recommendation of the probation department to deny probation and sentence defendant to six years in state prison.
Defendant's counsel argued that the incident should be taken in the context of the entire relationship between defendant and S.D. Counsel argued defendant was "desperate" and "at a breaking point based on everything that had gone on for the last eight months, the continual, almost daily physical and verbal abuse that she endured." Counsel argued defendant was isolated and had no support from family or friends, and her "attempts to obtain any help from outside sources was [sic] thwarted by her husband." Counsel noted S.D., who was nearly twice the size of defendant, pushed defendant around and hit and punched her, causing physical injury in addition to the "mental and emotional abuse that he put her through, calling her a whore, calling her a slut, [and] making racial slurs." On the day of the shooting, defendant just wanted "to get his attention and have some respect . . . . [¶] . . . [I]t was only because of this abusive relationship with her husband . . . that we end up here."
After reading aloud an additional letter of support submitted by a longtime friend of defendant attesting to defendant's friendly, generous, and nonviolent temperament, defendant's counsel offered the testimony of Dr. Linda Barnard, an expert on the issue of intimate partner battering. Dr. Barnard testified that, in preparing her assessment report of defendant dated June 12, 2015, she reviewed the relevant police reports and transcripts, audio recordings, statements by defendant and the victim, and a psychological evaluation of defendant conducted by Dr. Deborah Schmidt. Based on her review of those documents, as well as a lengthy handwritten letter from defendant to the court, Dr. Barnard opined that defendant was "a victim of intimate partner battering, physical, psychological, and verbal abuse."
In particular, Dr. Barnard testified the statements in defendant's letters were consistent with other evidence suggesting defendant was a victim of intimate partner battering. For example, defendant's claims that S.D. hit her, knocked her into a corner, and pushed her head against the wall were consistent with defendant's injuries as noted in the police report. Dr. Barnard opined that defendant's statements regarding her relationship with S.D. were also consistent with the "cycle of violence" often seen in intimate partner battering where "there's an [sic] honeymoon period, increasing tension, there's some sort of conflict that occurs, there is a honeymoon that occurs, and there was, I believe—on the refrigerator was a card from [S.D.] that indicated that he wanted to be a better husband, and it was sort of an apology thing that's consistent with what we see in the cycle of [violence]." Dr. Barnard testified that police reports indicated S.D. "did things to harm [defendant]," such as cutting up her clothing, which she reported he had admitted to detectives. Dr. Barnard also testified defendant's statements evidenced physical battering by S.D., which began shortly after defendant came to the United States in early-2014 and "occurred periodically throughout their relationship." The doctor opined that the police reports and the audiotape demonstrated verbal and psychological abuse by S.D. when defendant confronted him about his alleged infidelities, stating, "When [defendant] confronted him about that, there was a lot of back and forth verbal abuse, name calling, calling her a bitch, a whore, slut, different kinds of names that were degrading. [Defendant] described [S.D.] degrading her in public in front of other people. [Defendant] described not only the kinds of mutual verbal confrontations that were evidence on that tape, but that he also rose to another level of the kinds of denigrating name calling and remarks that are consistent with verbal abuse and domestic violence." Dr. Barnard noted further that defendant reported S.D. would "make racial slurs toward her when he was angry."
Dr. Barnard also testified that the documents she reviewed evidenced that defendant felt isolated, a common aspect of intimate partner violence. "[Defendant] didn't have friends or family here. She came here from a foreign country. Her family—I think she may have had some family in [S]outhern California, but she did not have contact with them at that time. So she was very isolated with only a few people who, I think, she may have talked to over the internet." Dr. Barnard testified it was also evident from the documents she reviewed that defendant wanted to work but "was prevented from leaving the house to find a job, or go to school, or anything that would have furthered her professionally," and that she "had very limited means of transportation or ability to go anywhere." Dr. Barnard explained the meaning of the phrase "victim defendant," and opined that the shooting by defendant must be viewed in the context of the entire relationship between defendant and S.D. Dr. Barnard noted defendant never stated she "went in there to get the gun and shoot [S.D.]," but rather defendant "stated she got the gun in order for [S.D.] to tell her the truth, which was part of that whole pattern of behavior."
Dr. Barnard testified that defendant said she had "used the internet to find the number of a local battered woman shelter," but when she asked S.D. to take her, he refused, which, according to Dr. Barnard, was confirmed by S.D. in his statement to police. Dr. Barnard concluded that, with regard to whether or not defendant should be granted probation despite her presumptive ineligibility, the "extenuating circumstances of the intimate partner battering put [defendant's] case in an unusual context" within the meaning of California Rules of Court, rule 4.413(c).
Undesignated rule references are to the California Rules of Court.
On cross-examination, Dr. Barnard confirmed that she never spoken with or personally met with defendant.
Defendant's counsel argued defendant's case was unusual due to the extenuating circumstances of a history of domestic abuse by S.D. The court continued sentencing to review and consider additional materials provided by defendant.
2. Continued Sentencing Hearing (September 25, 2015)
At the continued sentencing hearing on September 25, 2015, the court concluded it could not find there were unusual circumstances and declined to grant defendant probation. In particular, the court stated, "Because of the infliction of great bodily injury and because of the use of a weapon, the—based on the information that the Court has received in this matter, the Court cannot find that there are unusual circumstances for a grant of probation."
In making its sentencing determination, the court stated in part as follows:
"[T]he parties have agreed that there would be a maximum of six years in this particular case. So the Court has carefully considered the low, middle, and upper terms, both with regard to the violation of [section] 245[, subdivision] (a)(2), and the enhancement pursuant to [section] 12022.7[, subdivision] (e).
"The Court . . . selects the middle term of three years. The Court finds that the callousness of this particular crime, the fact that a firearm was used, the fact that time was taken to load the firearm, interrogate the victim, [and] pull the trigger as he walked away, the Court finds those to be aggravating factors.
"The Court also finds that there is some evidence in the record of prior difficulty in the relationship: emotional abuse, verbal abuse, and perhaps other types of abuse. Much of the reporting of that the Court believes was—that was presented by the [d]efendant in this matter is not corroborated.
"The Court also believes that the [d]efendant did accept responsibility early in this matter. And also the Court finds that the [d]efendant is remorseful, along with having a minimal record.
"The Court finds that given the seriousness of this offense, the harm that was created to the [d]efendant along with the mitigating factors, the Court finds that the selection of three years for the violation of [section] 245[, subdivision] (a)(2) is appropriate.
"Further, for the enhancement, given the agreement that was reached by the parties for—to go forward in that matter, it's necessary for the Court to order three years because the Court believes that the agreement reached is appropriate, and it is the appropriate sentence.
"Also, the factors and mitigation for selection of the three-year term include the lack—or minimal record. The remorse that's demonstrated here and so forth.
"So the Court would select three years, not only to comport with the agreement that was reached by the parties, and it occurs to the Court that, having selected the three-year term, they would have to necessarily be in agreement that the mitigated term would be imposed; otherwise, we would not be able to go forward with the plea."
After confirming neither party had "any comment in that regard," the court sentenced defendant to the middle term of three years, plus a consecutive three-year term for the great bodily injury enhancement, for an aggregate term of six years in state prison consistent with the plea agreement.
Defendant filed a timely notice of appeal. The trial court granted her request for a certificate of probable cause.
II. DISCUSSION
A. Denial of Probation
Without disputing her statutory ineligibility for probation, defendant contends the trial court abused its discretion by refusing to consider evidence demonstrating unusual circumstances allowing for a grant of probation or, in the alternative, imposing a mitigated sentence. In particular, defendant claims the court erred by disregarding Dr. Barnard's testimony regarding domestic partner abuse and intimate partner battering and concluding much of the evidence of defendant's history of domestic violence by S.D. against defendant was "not corroborated." The claim is without merit.
Section 1203, subdivision (e) prohibits a grant of probation where the defendant "used . . . a deadly weapon upon a human being," (§ 1203, subd. (e)(2)) or "willfully inflicted great bodily injury" in committing the crime of conviction, "[e]xcept in unusual cases where the interests of justice would be best served" by a grant of probation (§ 1203, subd. (e)(3)). "Unusual cases" include where the defendant "participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence." (Rule 4.413(c)(2)(A).)
In granting or denying probation, the trial court may rely on facts relating to the crime and facts relating to the defendant.
Facts relating to the crime include: "(1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime; [¶] (2) Whether the defendant was armed with or used a weapon; [¶] (3) The vulnerability of the victim; [¶] (4) Whether the defendant inflicted physical or emotional injury; [¶] (5) The degree of monetary loss to the victim; [¶] (6) Whether the defendant was an active or a passive participant; [¶] (7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur; [¶] (8) Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant; and [¶] (9) Whether the defendant took advantage of a position of trust or confidence to commit the crime." (Rule 4.414(a)(1)-(9).)
Facts relating to the defendant include: "(1) Prior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct; [¶] (2) Prior performance and present status on probation . . . or parole; [¶] (3) Willingness to comply with the terms of probation; [¶] (4) Ability to comply with reasonable terms of probation as indicated by the defendant's age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors; [¶] (5) The likely effect of imprisonment on the defendant and his or her dependents; [¶] (6) The adverse collateral consequences on the defendant's life resulting from the felony conviction; [¶] (7) Whether the defendant is remorseful; and [¶] (8) The likelihood that if not imprisoned the defendant will be a danger to others." (Rule 4.414(b)(1)-(8).)
A trial court's denial of probation is reviewed for abuse of discretion. "As with any exercise of discretion, the sentencing court violates this standard when its determination is arbitrary or capricious or ' "exceeds the bounds of reason, all of the circumstances being considered." ' [Citations.]" (People v. Welch (1993) 5 Cal.4th 228, 234; accord, People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 825.)
Defendant's claim that the trial court refused to consider evidence such as the testimony and opinions of Dr. Barnard regarding S.D.'s history of domestic violence is contradicted by the trial court's statement at the September 18, 2015, sentencing hearing that it "read and considered," among other things, the July 21, 2015, probation report and attached letter written by the victim, the People's statement in aggravation, defendant's sentencing memorandum and statement of mitigation and attached letter from Dr. Barnard, defendant's lengthy handwritten letter, defendant's supplemental handwritten letter, and defendant's supplemental sentencing memorandum and attached letters from family members and a friend.
Thereafter, in declining to grant probation, the court reiterated it had "carefully considered all of the information presented" to it. (Italics added.) Nonetheless, the court stated that, "[b]ecause of the infliction of great bodily injury and because of the use of a weapon, the—based on the information that the Court has received in this matter, the Court cannot find that there are unusual circumstances for a grant of probation in this matter. . . . The presumption has not been overcome by any of the information received by the Court." (Italics added.)
On these facts, in order to overcome the presumption of ineligibility, a finding that defendant "participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense" was necessary. (Rule 4.413(c)(2)(A).) In light of the information before it at sentencing, the trial court did not abuse its discretion when it concluded it could not make such a finding.
One piece of information considered by the court was the probation report, which included a detailed recitation of defendant's statements to police, including her claims of physical abuse by S.D. just prior to the shooting, as well as responding officers' observations of bruises on defendant's face, a slight bump on her forehead, and some blood and a laceration on her lip. On the other hand, the report noted defendant stated she retrieved the gun from the bedroom closet to " 'gain respect' " and she wanted S.D. to tell her the truth about his infidelity. But, when S.D. failed to pay attention to her and spoke sarcastically to her, "she pulled the trigger to 'say pay attention.' " The report concluded that "it appears the defendant had an opportunity to remove herself from the alleged physical abuse and call 9-1-1, however, she chose to access a firearm, and rack the gun, which inserted a live round. Although[] the defendant reported 'self-defense' as her motivation, she used the firearm not out of protection, but to interrogate [S.D.] about his alleged affair and to intimidate him. When she did not receive the response she was expecting, she shot the victim as he was attempting to flee."
The court also considered the audio recording of the moments before the shooting. That recording revealed defendant and S.D. were mutually engaged in what could be construed as verbal abuse, with each calling the other names and using derogatory language and profanity. While it is clear the parties were involved in a heated argument, the recording itself does not appear to contain any evidence of physical abuse by S.D., either before or during the argument. Nor does it appear defendant was in fear for her safety or in need of protecting herself at any time prior to retrieving the gun and turning off the recording. Indeed, the recorded interaction ends with defendant saying, "I want to be the fuck alone. I fucking will," followed by two and a half minutes of silence, interrupted only by the sound of defendant inserting a magazine into the gun and racking the gun to load a bullet into the chamber. As defendant later acknowledged, once she stopped the recording, she proceeded to use the gun to "gain respect" and get the truth from S.D. about his infidelity, but then pulled the trigger when he did not respond the way she wanted him to. We note, also, the discrepancy between that statement and defendant's statement to police that she pulled the trigger when S.D. was reaching for his laptop, and her statement to the probation officer that she pulled the trigger when S.D. was bending down to fix his pants.
The court also saw photographs of injuries sustained by both defendant and S.D., and heard a statement from S.D., who described defendant's violent behaviors leading up to the shooting. S.D. also described how defendant retrieved the gun, held him at gunpoint for nearly 10 minutes, told him to stand up so she could "shoot [his] balls off and kill [him]," and shot him in the back when he attempted to flee.
Finally, the court considered the testimony and written statement of Dr. Barnard, who opined that defendant was a victim of intimate partner battering at the hands of S.D. Dr. Barnard opined that defendant's statements to police and those in defendant's handwritten letters to the court regarding physical and psychological abuse by S.D. were consistent with the injuries observed by police at the time of her arrest. Dr. Barnard further opined that defendant's claims regarding S.D.'s behaviors—leaving her a card indicating he wanted to be a better husband, cutting up her clothing when she did things that "displeased" him, degrading her in public, making her feel isolated, preventing her from working, and refusing to take her to a local battered women's shelter—were also consistent with aspects of intimate partner battering.
However, Dr. Barnard never spoke with defendant or met with her in person, and relied solely on claims made by defendant in her written statements. With the exception of defendant's claim that she sustained injuries on the day of the shooting, a claim that was corroborated by photographs and statements in the probation report that police officers observed injuries to defendant at the time of her arrest, none of defendant's claims regarding S.D.'s abusive behavior were corroborated by anything other than defendant's own allegations either in her handwritten statements or as referenced in the probation report.
Defendant contends her statements that S.D. did things to harm her and refused her request to take her to a battered women's shelter were either corroborated in Dr. Barnard's report or could be reasonably inferred by Dr. Barnard. However, as expressly stated in Dr. Barnard's written report, Dr. Barnard "did not interview any of the parties involved in this case" and made her assessment "wholly" on reviewing documents she identified in her report, including statements by defendant and S.D. Indeed, the portion of Dr. Barnard's report entitled "History of Abuse Between [Defendant] and [S.D.]" begins with the phrase, "According to statements by [defendant] . . . ." Moreover, the record contains only one written statement by S.D. (attached to the probation report), and neither corroborates nor mentions either of defendant's allegations.
Defendant admits her claims that S.D. "degraded her in public in front of other people" and "made racial slurs toward her when he was angry" are not corroborated by any witness, but argues S.D. "admitted that he verbally abused [defendant] by calling her names." These admissions are referenced by Dr. Barnard in her report; however, they are not otherwise corroborated by the record. Defendant urges us to infer from Dr. Barnard's testimony that some of the names S.D. called defendant involved racial slurs and that S.D. insulted defendant in public, claiming "a reasonable expert could find that these claims were adequately corroborated by the overall picture of abuse suffered by [defendant]." Even if we agreed with defendant, that a reasonable inference can be made that S.D. used racial slurs against defendant, and we do not, we would not find that it was an abuse of discretion to deny probation in this case.
For the same reasons, we reject defendant's argument that, although her claim that S.D. would not allow her to pursue a career or find employment was contradicted by S.D.'s statement at the sentencing hearing that he "motivated her to go to school" and bought her a computer and "all the merchandise she needed to be successful," greater weight should be given to Dr. Barnard's assertion that S.D. admitted to police, in a report not present in the record, that he cut up defendant's clothing. We similarly reject defendant's argument that we should not "pick a few statements" from Dr. Barnard's report and decide whether there is independent corroboration for each one when Dr. Barnard based her opinion on all the statements and reports from various parties and specifically cited to "multiple facts that were corroborated by admissions from S.D.," and concluded, based on those corroborated facts, that there was a pattern of abuse by S.D.
Finally, defendant claims the trial court's conclusion that much of the abuse reported by defendant was "not corroborated" was unreasonable and reflects the court's finding that it did not believe Dr. Barnard. Not so. As discussed above, many of defendant's allegations were uncorroborated by anything in the record. Thus, the trial court had little before it to substantiate those claims and thus was reasonable in finding Dr. Barnard's assessment unpersuasive.
In short, the court considered a significant amount of information, some of which included defendant's claims of domestic violence by S.D., as well as evidence of injuries sustained by defendant at some point prior to being arrested. However, in light of the absence of corroboration of the allegations of abuse by S.D., and the absence in the audio recording of any evidence of physical abuse by S.D. or any need by defendant to protect herself from S.D. prior to the shooting, the trial court did not abuse its discretion in declining to find defendant shot S.D. "under circumstances of great provocation, coercion, or duress." (Rule 4.413(c)(2)(A).)
Because we find no error in the court's conclusion that much of the abuse alleged by defendant was "not corroborated," we need not address defendant's claim that, but for the court's "refusal to consider [defendant's] history of being a victim of domestic violence as a mitigating circumstance," the resulting sentence would have been more favorable. B. Determination of Appropriate Sentence
Next, defendant contends the trial court abused its discretion in imposing the middle term by applying an improper dual use of facts—defendant's use of a firearm and infliction of great bodily injury as elements of or enhancements to the offense and as factors in aggravation—to determine the appropriate sentence in violation of section 1170, subdivision (b), which prohibits the trial court from imposing "an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law," and rule 4.420(c), which provides that "a fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so."
Section 1170, subdivision (b) provides in part: "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, . . . 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." (Italics added.) --------
Defendant's challenge is forfeited because she failed to specifically object on that basis in the trial court despite having the opportunity to do so. "[C]laims involving the trial court's failure to properly make or articulate its discretionary sentencing choices," including "cases in which the court purportedly erred because it double-counted a particular sentencing factor," (People v. Scott (1994) 9 Cal.4th 331, 353) cannot be raised for the first time on appeal where counsel had a "meaningful opportunity to object" after having been "clearly apprised of the intended sentence the court intends to impose, and the reasons that support any discretionary sentencing choices" (id. at p. 356). (Accord, People v. Steele (2000) 83 Cal.App.4th 212, 226.)
Anticipating our conclusion, defendant alternatively claims she was deprived of her constitutional right to the effective assistance of counsel because her trial attorney failed to object to the court's improper dual use of aggravating factors. She argues there is no conceivable tactical reason for failing to object to the dual use of facts. The claim lacks merit.
To prevail on a claim of ineffective assistance of counsel, defendant must prove that (1) trial counsel's representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) that the deficiency resulted in prejudice to defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) To establish prejudice, defendant must show that there is " 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " (People v. Maury (2003) 30 Cal.4th 342, 389.)
Defendant cannot demonstrate her trial counsel's representation was deficient for failing to object because it was not improper for the trial court to use the fact that defendant used a firearm and inflicted great bodily injury as aggravating factors. The prohibition against dual use in rule 4.420(d) applies to using an element of a crime to impose the upper term; it does not apply when, as here, the middle term is imposed. (See People v. Haynes (1984) 160 Cal.App.3d 1122, 1137-1138.) Similarly, the prohibition against dual use in section 1170, subdivision (b) does not apply when the middle term is imposed. Therefore, trial counsel was not deficient in failing to object and defendant has not established ineffective assistance.
Defendant claims that, under the current determinate sentencing law, trial courts are free to choose any one of the three terms (lower, middle, or upper). As such, the middle term is a greater punishment than the lower term, and the middle term thus becomes a "greater term," which cannot be imposed on a factor that is an element of the crime. Because defendant cites no authority for this proposition, her claim requires no further discussion. (People v. Hardy (1992) 2 Cal.4th 86, 150 [appellate court may decline to address argument not supported by citation to relevant authority]; People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4 [an argument is forfeited if it is raised in a perfunctory fashion without any supporting authority].)
In any event, in selecting the middle term, the trial court "carefully considered the low, middle, and upper terms" and relied not only on other aggravating factors, including the seriousness of the offense, the callousness of the crime, and "the fact that time was taken to load the firearm, interrogate the victim, [and] pull the trigger as he walked away," and mitigating factors, including that defendant accepted responsibility early on, was remorseful, and had a "minimal record," but also the parties' agreement to a six-year maximum, which the court determined was "appropriate" under the circumstances. It is therefore not reasonably probable the result would otherwise have been more favorable to defendant.
Defendant's claim of ineffective assistance of counsel is without merit.
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
NICHOLSON, J.