Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. C150139
Jerald Walter Brazley appeals from a judgment entered after a trial court found him guilty of voluntary manslaughter. (Pen. Code, § 192, subd. (a).) He contends he was sentenced incorrectly. We disagree and affirm.
All further section references will be to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
Jones, P.J.
Appellant was convicted of killing Anthony Wade Jones (Wade) during an argument at Wade’s home. The facts of the crime are as follows:
Wade lived with his girlfriend Stacy Hightower and Hightower’s “Aunt” Debra Hopson, in an apartment on Hillside Street in Oakland. On July 9, 2004, appellant, who was Hopson’s former boyfriend, called Hopson and asked if he could come for a visit. Appellant had argued with Wade previously and he knew he was not welcome in Wade’s home. However, appellant, who had just completed a week-long cocaine binge, had no money and nowhere else to go. Hopson agreed.
Appellant went to Wade’s apartment carrying two loaded handguns that he had stolen during a recent burglary. When appellant arrived, he went directly to Hopson’s room. When Wade learned appellant was present, he went to Hopson’s room and demanded that appellant leave. Appellant replied, “I don’t have to go nowhere.” As Wade turned to leave, appellant reached for his backpack. Afraid that Wade was going to throw him out, appellant fired three shots. Two hit Wade in the hip. A third hit Wade in the chest killing him.
Appellant was apprehended as he tried to leave the apartment. Appellant admitted that he had shot Wade. Police investigating the crime found a child sleeping in the bedroom next to the one in which the crime took place.
Based on these facts, an information was filed charging appellant with murder. (§ 187.) The information also alleged appellant had used a firearm within the meaning of section 12022.53, subdivisions (b), (c), and (d), section 12022.5, subdivision (a), and section 12022.7, subdivision (a).
The case proceeded to court trial where a judge convicted appellant of voluntary manslaughter (§ 192, subd. (a)), and found that appellant had personally used a firearm when committing the offense (§ 12022.5).
The court initially sentenced appellant to the upper term of 11years on his manslaughter conviction, plus the upper term of 10 years for the gun use enhancement. However, the court subsequently vacated that sentence and resentenced appellant to the middle term of 6 years for manslaughter, plus the upper term of 10 years for the gun use finding.
II. DISCUSSION
Prior to the sentencing hearing, many of Wade’s family and friends submitted letters to the court describing the anguish they had experienced as a result of Wade’s death. Wade’s sister said her brother embodied “character, love and support.” Wade’s cousin said he had the “biggest heart of anyone [she knew].” Wade’s friend said it was “crazy that Wade was killed over asking someone to leave his house” and stated he was “reluctant to have people visit with [him] anymore.” Wade’s niece said her life was “changed forever . . . when my uncle was gunned down in his home” and that she had “lost a father figure.”
The trial court mentioned the effect Wade’s death had on his family and friends when it sentenced appellant to the upper term of 10 years on his gun use enhancement: “[T]he factors in aggravation pursuant to [California Rules of Court, rule] 4.421(a)(1), that the crime involved great violence and bodily injury, and that defendant fired multiple shots in an enclosed area, 4.421(a)(2), that he was armed and used not only one, but two weapons, 4.421(a)(3), that the victim was vulnerable in his own residence and unarmed, the defendant also has imposed substantial emotional trauma on the family and friends of the victim, it still justifies the aggravated term for the use clause.” (Italics added.)
Appellant now contends the trial court erred when it relied on the effect Wade’s death had on his family and friends when it imposed the upper term. Noting that concept of “aggravation” is intended to punish crimes that are “distinctly worse than the ordinary” (People v. Moreno (1982) 128 Cal.App.3d 103, 110), appellant argues that “the evidence of such traumatic effect in [his] case is no worse than that of any other violent death by voluntary manslaughter.”
We reject this argument for several reasons. First, while appellant attempts to compare the trauma caused by his voluntary manslaughter to the trauma caused by other acts of voluntary manslaughter, that was not the basis for the sentence in question. The court imposed the upper term on the firearm enhancement. Therefore, appellant has chosen the wrong standard by which to measure his conduct.
Second, even if we were to assume appellant’s voluntary manslaughter is the appropriate factor to measure, the evidence supports the trial court’s conclusion. The record demonstrates that appellant had a particularly large group of friends and family who loved him dearly and who were devastated by his death. The trial court reasonably concluded that the breath and depth of the trauma experienced by those who knew and loved Wade made this crime significantly worse than ordinary and thus worthier of greater punishment.
Third, even if we were to assume, arguendo, that the court should not have relied on the factor appellant has identified, we would not reverse. An aggravated sentence can be supported by a single factor (People v. Kelley (1997) 52 Cal.App.4th 568, 581), and the court here cited three additional factors in support of its ruling. Appellant has not challenged any of those other factors on appeal. Since the court’s decision is supported by at least three valid factors, we conclude it is not reasonably probable the court would have imposed a different sentence absent the error alleged. (Id. at p. 581, fn. 18.) Indeed, the circumstances of this case are so clear that we can say with confidence that any possible error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.)
Alternately, appellant argues the trial court violated Cunningham v. California (2007) 127 S.Ct. 856, when it relied on the emotional trauma caused by his crime to impose the upper term. Again, even if we were to assume, arguendo, that the court should not have relied on that factor, any possible error was harmless. An upper term sentence is valid so long as it is supported by one valid factor (People v. Black (2007) 41 Cal.4th 799, 812), and here the court cited three other factors when imposing the upper term. Appellant has not challenged any of those other factors so we must presume they are valid. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) Since the upper term sentence was supported by more than one valid factor, it was valid.
III. DISPOSITION
The judgment is affirmed.
We concur: Simons, J., Needham, J.