Opinion
E052551 Super.Ct.No. FSB901111
11-29-2011
THE PEOPLE, Plaintiff and Respondent, v. ORLANDO M. BOONE, Defendant and Appellant.
Patrick J. Hennessey, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr. and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Bryan Foster, Judge. Affirmed.
Patrick J. Hennessey, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr. and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
The victim, Tiamissia Freeman, was friends with defendant, Orlando M. Boone, and decided to stay the night with him one night. Defendant was upset when she refused to engage in sexual relations with him and punched her in the mouth with his fist, chipping her tooth. Defendant punched her several more times, one time causing her to fall on a glass-top table, which shattered. Defendant became enraged that she had broken the table. Defendant stabbed her in the leg three times with a knife he retrieved from the kitchen. Freeman was able to get free and went to a nearby Department of Motor Vehicles (DMV) office.
Defendant was found guilty by a San Bernardino County jury of assault with a deadly weapon and by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).) The jury also found true the allegations that he personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)) and that he personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)).
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant had been charged with making terrorist threats (§ 422), but the jury found him not guilty of the charge.
The trial court imposed the upper term of four years on the assault with a deadly weapon charge, plus an additional three-year term for the great bodily injury allegation. Sentence on the deadly weapon allegation was stayed. Defendant was sentenced to a total prison sentence of seven years.
Defendant now claims as follows: (1) the trial court erred and failed to state adequate reasons for imposition of the upper term on the assault with a deadly weapon charge; and (2) the trial court abused its discretion in refusing to continue defendant's sentencing hearing in order for him to file a motion for new trial.
I
FACTUAL BACKGROUND
A. People's Case-in-chief
On March 17, 2009, Tiamissia Freeman had known defendant for seven to eight months. That evening, Freeman was picked up by defendant about 9:00 p.m., and he drove her to his apartment located in an apartment complex in the City of San Bernardino. Freeman and defendant talked and had some drinks throughout the night. At some point, defendant wanted to have sex with Freeman, but she refused. Defendant got "really deranged" and he punched Freeman in the mouth with his fist. She fell onto the floor. The punch to her mouth chipped her tooth.
Defendant walked toward Freeman and she pushed a chair between them. Defendant fell to the ground. Freeman tried to get out the front door but she could not open it. Defendant ran toward her and started punching her in the head and on her body while she lay on the ground in the fetal position. Freeman got up and tried to get away from defendant. He punched her and she fell back onto the glass coffee table and broke it.
Defendant told her that he had had the table for 10 years and that he was going to kill her. Freeman tried to calm defendant down. Defendant went to the kitchen and got a knife. He came at her with the knife. Freeman put her leg up in order to protect herself. Defendant stabbed her three times with the knife while she was on the ground. One of the wounds was deep. Defendant kept telling her that she was going to die that day. Freeman began to bleed profusely from her leg.
Defendant then stopped and sat on the couch. He told her she could leave. Defendant told her that if she ever told anyone what he had done that he would kill her. Freeman left and walked straight to the DMV office that was located one block from the apartment complex.
San Bernardino Police Officer Adam Affrunti was called to the DMV on Waterman Avenue in San Bernardino based on a report that a woman had been stabbed. Freeman was already being treated for her injuries when Officer Affrunti arrived. There was blood all over the floor.
Freeman described the apartment complex where she had been stabbed. Once Officer Affrunti and other officers arrived at the complex, a trail of blood led them to apartment 36. Officer Affrunti knocked on the front door of the apartment several times. Officer Affrunti eventually kicked in the front door.
Defendant was apprehended after he climbed out of a second story window and jumped to the ground from the apartment. A folding knife was found in his pocket. A search of the apartment revealed a broken glass table. There was blood on the floor and on the blinds. There was blood splatter on the couch. In the toilet, Officer Affrunti found a napkin or toilet paper that appeared to have blood on it. Defendant had blood on his pants leg and ankle.
Freeman's wounds had to be closed by staples. She remained in the hospital for four days and had some complications with the wounds after leaving the hospital. At the time of trial, she still experienced pain in her leg. The knife found on defendant was the one defendant used to stab her.
Freeman denied that the incident involved money or drugs. Freeman had used different names in 2005 and 2006, when she was involved in prostitution cases. She also had a prior conviction for possession of a knife. Freeman denied that she and defendant had agreed that she would come to his apartment and he would pay her for sex.
B. Defense
Freeman was recalled by defendant. She did not recall telling the police that the man who had stabbed her was named Chris. Freeman had identified defendant's photograph from the six-pack photographic lineup.
Defendant testified on his own behalf and presented a much different story regarding the incident. Defendant had met Freeman three or four months prior to the incident. Defendant claimed they flirted and went back to his apartment the first day they met, and he clearly thought they were going to have sex. However, when they arrived at his apartment, defendant claimed Freeman realized that he had money and wanted him to pay for sex. Defendant refused to pay for sex with her and she left.
Defendant claimed Freeman called him a month later and talked about buying drugs. Defendant had Freeman over to his apartment again and she insisted that he pay her for sex. Defendant gave her $20 and she bought rock cocaine. She smoked it in his apartment. He noticed at this time that she had a chipped tooth. They had sex.
Defendant then had Freeman over to his apartment on the night of October 17. Prior to getting to defendant's apartment, Freeman had someone meet her and she bought some pills from him. Defendant gave her $30 to pay for the pills. Defendant bought her the pills because she said that it would make her better at sex. When they arrived at defendant's apartment, she took the pills. Freeman appeared to be feeling the effects of the pills.
Defendant gave her an additional $20 in order for her to have sex with him. She refused. Defendant pretended to be angry so he could get his money back; he claimed he just wanted her to keep him company because he had trouble sleeping and did not want to have sex with her. When Freeman did not give back the money, defendant tried to get past her to get back the money and the pills. Freeman pushed defendant. Freeman pushed up on the glass table, and it fell and broke. Freeman grabbed a knife off the counter. Freeman stabbed him in the hand and cut him on his neck and arms. At one point, defendant fell to the ground and she stabbed him in the ankle and side of his knee. Freeman fell to the ground and defendant was able to pin down her arms. She then started kicking defendant in the face. While Freeman was kicking him, she still had the knife in her hand and it was cutting her on the leg. She appeared not to feel it. Defendant then told her to stop or he would use the knife to stick her. When she refused, he used her hand to stick herself with the knife. He claimed it barely broke the skin. She did not stop so he did it again. She did not appear to feel it. He did this a third time and she moved her leg at the same time causing the knife to go deeper. She finally dropped the knife. Defendant then told her to get out of his apartment. She grabbed her things and left.
Defendant tried to clean his wounds with paper towels and a washcloth. He threw some of the towels in the toilet. Defendant then heard a knock on the door; he looked out the peephole and saw an officer with his gun drawn. He quickly changed his clothes. Defendant looked out the peephole again and realized that the officer at the door was Officer Affrunti. Defendant had heard that Officer Affrunti was called the "terminator" and the "punisher," and that he planted weapons on suspects.
Defendant was afraid. He eventually jumped from his bedroom window so he would be in the open when he was arrested so that Officer Affrunti would not plant a gun on him or shoot him. He twisted his leg when he fell and broke his hip. Defendant counted 13 cuts on his body after the incident. Photographs of cuts to defendant were shown to the jury. Defendant denied that he received his injuries due to jumping out of the window.
II
IMPOSITION OF UPPER TERM
Defendant contends the trial court erred and failed to state adequate reasons for imposing the upper term on his conviction for assault with a deadly weapon.
A. Additional Factual Background
At the time of sentencing, the trial court stated that it had read the probation report. The probation report listed the following aggravating circumstances: (1) under California Rules of Court, rule 4.421(a), facts relating to the crime, under subsection (1), "The crime involved great violence, great bodily harm and the threat of great bodily harm"; and (2) under subdivision (b), facts relating to the defendant, under subsection (1), "The defendant has engaged in violent conduct, which indicates a serious danger to society." As for the circumstance in mitigation, it only listed rule 4.423(b)(1), "The defendant's prior performance on probation was satisfactory." The report recommended imposition of the upper term.
All references to rules are to the California Rules of Court.
The trial court stated: "I've considered therein the statement of the offense and proposed findings pursuant to [r]ules 413, 414, 421, 423, 425 and motor vehicle findings." The trial court asked if counsel wished to be heard on sentencing. Defendant's counsel submitted on the probation report.
The trial court was clearly referring to rules 4.413, 4.414, 4.421, 4.423, and 4.425.
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The trial court then denied probation due to the use of a deadly weapon. It then stated: "Review of the facts show that—showing unusual circumstance doesn't apply. In reviewing [r]ule [4.]414 I find that the nature and circumstances of the crime was serious compared with other instances of the same crime; that the defendant inflicted physical injury. The defendant does have a prior record of criminal conduct. [¶] The defendant has not shown remorse. The defendant—under [rule 4.]421 I find the defendant's conduct was such it engaged in conduct that was serious and that the—he presented serious danger to society; that the crime involved great violence and great bodily harm— threat of great bodily harm; that I do also find in mitigation the defendant's prior performance on probation was satisfactory."
It then sentenced defendant as follows: "Pursuant to Penal Code Section 669 and Penal Code Section 1170.1, assault with deadly weapon by means likely to produce great bodily injury, violation of Penal Code Section 245[, subdivision] (a)(1), a felony, for the aggravated term of four years with the enhancement of personal use of a deadly weapon, in violation of Penal Code Section 12022[, subdivision] (b)(1), for the term of one year which is stayed; with enhancement of personally inflicting great bodily injury, in violation of Penal Code Section 12022.7[, subdivision] (a), for a term of three years."
B. Waiver
The People contend that since defendant did not object to the imposition of the upper term, he has waived the claim. Defense counsel did not object to the probation report or at the time of sentencing. Accordingly, defendant waived this claim because he did not raise it in the trial court. (People v. Jones (2009) 178 Cal.App.4th 853, 858-859 [Fourth Dist., Div. Two].) Defendant contends that if we find that he has waived his claim due to his failure to object in the lower court, he received ineffective assistance of trial counsel.
A cognizable claim of ineffective assistance of counsel requires a showing of serious errors by counsel, which prejudiced the defense. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 104 S.Ct. 2052].) To establish prejudice, a defendant must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.) "Judicial scrutiny of counsel's performance must be highly deferential." (Id. at p. 689.) "We defer to counsel's reasonable tactical decisions and indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (People v. Anzalone (2006) 141 Cal.App.4th 380, 394, called into doubt on other grounds in People v. Stone (2009) 46 Cal.4th 131.)
A determination of whether defendant received ineffective assistance of counsel necessarily requires a determination of the merits of defendant's claim, and thus, we will review the merits. Since we conclude, post, the trial court did not error by imposing the upper term, defendant cannot show ineffective assistance of counsel.
C. Upper Term
Under section 1170, subdivision (b), as amended effective January 1, 2008, "the choice of the appropriate term shall rest within the sound discretion of the court." (Stats. 2007, ch. 740, § 1, p. 4726.) Because of these amendments, trial courts now have discretion under section 1170, subdivision (b), to select among the lower, middle, and upper terms specified by statute without stating ultimate facts deemed to be aggravating or mitigating under the circumstances and without weighing aggravating and mitigating circumstances. (People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval), citing § 1170, subd. (b), as amended.) "The trial court's sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.' [Citation.]" (Sandoval, supra, at p. 847.)
We agree that "[a] circumstance which is an element of the substantive offense cannot be used as a factor in aggravation. [Citation.]" (People v. Clark (1992) 12 Cal.App.4th 663, 666.) The aggravating factor that defendant caused Freeman great bodily injury was already used to impose sentence on the enhancement and could not be used to impose the upper term. However, a single aggravating factor will justify the upper term. (People v. Osband (1996) 13 Cal.4th 622, 732.)
Rule 4.421(b)(1) provides that one of the circumstances in aggravation enumerated therein is that "[t]he defendant has engaged in violent conduct that indicates a serious danger to society." The probation report listed this aggravating factor. The trial court further recognized the finding that defendant engaged in violent conduct "indicat[ing] a serious danger to society." This factor is not an element of any of the crimes of which defendant was convicted, nor is it an element of any of the sentencing enhancement allegations the jury found true. Not only did defendant punch, push, and stab Freeman, he presented a danger to others by jumping from his window and attempting to evade police. Moreover, defendant had the knife on his person when he was apprehended.
The trial court additionally stated that defendant had a prior criminal record. Defendant had suffered two prior convictions—albeit misdemeanors—in 1999 and 2000. This factor further supports the imposition of the upper term in this case. Although defendant attempts to minimize his prior convictions, the trial court could have reasonably imposed the upper term based on his prior record.
Defendant complains that looking at the factors listed in the probation report, there was a balance between the aggravating and mitigating factors supporting the imposition of only the middle term. However, the court has broad discretion to balance aggravating and mitigating factors qualitatively as well as quantitatively. (People v. Lamb (1988) 206 Cal.App.3d 397, 401.) Additionally, as set forth ante, the court need only exercise its discretion in a manner that is not arbitrary and capricious and that is based upon an "'individualized consideration of the offense, the offender, and the public interest.' [Citation.]" (Sandoval, supra, 41 Cal.4th at p. 847.)
Here, the trial court could reasonably conclude that looking at defendant, the offense he committed outweighed the fact that he previously performed well on probation. Defendant brutally attacked Freeman because she would not have sex with him, then attempted to avoid capture by jumping from his second story window, still carrying the knife. Defendant's actions clearly represented a danger to society (in addition to the violence perpetrated against the victim) and the circumstances warranted imposition of the upper term.
Defendant also claims the trial court failed to state an adequate statement of reasons for choosing the upper term as required by Sandoval. Under Sandoval, the trial court states its reasons for the sentence, but makes no factual findings to impose an upper or lower term. (Sandoval, supra, 41 Cal.4th at pp. 846-847.) "The reasons, however, no longer must 'include a concise statement of the ultimate facts that the court deemed to constitute circumstances in aggravation or mitigation.' [Citation.]" (Id. at p. 847.) Here, the trial court stated on the record that it had read the probation report, which recommended the upper term. It found that defendant had a prior record, that defendant had not shown remorse, he presented a serious danger to society, the crime involved great violence and great bodily injury, and the only factor in mitigation was that defendant's prior performance on probation was satisfactory. This was an adequate statement of reasons for imposing the upper term in this case. Nothing more was required.
Based on the foregoing, the totality of the record supports the trial court's proper exercise of discretion in sentencing defendant.
III
CONTINUANCE OF SENTENCING TO FILE MOTION FOR NEW TRIAL
Defendant further contends the trial court erred by failing to grant his request for a continuance of sentencing in order to file a motion for new trial.
A. Additional Factual Background
The matter was set for sentencing on September 14, 2010. On September 14, 2010, at a hearing, defendant requested new counsel to file a new trial motion. Counsel was appointed on October 15, 2010. On November 19, 2010, the case was called and defendant appeared with new counsel. A continuance was requested until December 3, 2010, in order for defendant to be interviewed for a new trial motion. The request was granted. On December 10, 2010, the matter was called and counsel for defendant informed the trial court that defendant had refused to talk to counsel regarding the issues for a new trial motion until he was given a transcript from the proceedings. Defendant explained that he felt that he could not adequately assist counsel in filing a new trial motion until he received the transcripts. Defendant requested another continuance.
The People objected that defendant was not entitled to the entire trial transcript in order to file a new trial motion. They objected to any continuance of sentencing. Defendant's counsel stated that he had asked defendant for the reasons for a new trial in order to determine if an entire transcript was necessary. Counsel had visited defendant twice in jail and he had refused to tell him anything. The trial court ruled: "I find no good cause to continue the sentencing in this matter. We're going to proceed with sentencing at this time."
Defendant interrupted sentencing and asked for a continuance. The trial court denied the request, finding: "I believe any delay in this matter has been caused by your own intransigent in terms with dealing with counsel on this, and it's not going to delay the sentencing any further."
B. Analysis
"A continuance in a criminal trial may only be granted for good cause. (§ 1050, subd. (e).) 'The trial court's denial of a motion for continuance is reviewed for abuse of discretion.' [Citation.] 'There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.' [Citations.]" (People v. Mungia (2008) 44 Cal.4th 1101, 1118.)
In establishing good cause for a continuance, "[a]n important factor for a trial court to consider is whether a continuance would be useful. [Citation.]" (People v. Beeler (1995) 9 Cal.4th 953, 1003.)
Here, defendant was afforded new counsel to help with the filing of a motion for new trial. The matter was continued in order for new counsel to be appointed and a second time in order for counsel to discuss the matter with defendant. Defendant had refused to divulge to new counsel the grounds for the new trial motion. Counsel had twice gone to the jail to speak with defendant, but he refused to speak with counsel unless he had the trial transcripts. It is clear that counsel explained to defendant that the transcripts were not required in order for a new trial motion to be filed.
At the time for sentencing, defendant maintained that he needed the trial transcripts in order to establish the grounds for his motion for new trial. However, defendant had been present throughout the entire trial and obviously had some inclination of the grounds for which he sought a new trial. The trial court could reasonably conclude that defendant sought merely to delay the sentencing and that there were no legitimate grounds for a new trial motion. Although the trial court had previously accommodated defendant by allowing for continuances and appointing new counsel, it could conclude that defendant's own actions thwarted the filing of a new trial motion and the court therefore set the matter for immediate sentencing.
The trial court did not abuse its discretion by refusing to grant a continuance of the sentencing in order for defendant to file a new trial motion.
IV
DISPOSITION
The judgment is affirmed in its entirety.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
Acting P.J.
We concur:
KING
J.
MILLER
J.