Opinion
C081794
02-27-2017
THE PEOPLE, Plaintiff and Respondent, v. AARON WILLIAM BURGE, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F2403)
Defendant Aaron William Burge stabbed the victim in the back with a knife. He was convicted of, inter alia, assault with a deadly weapon, and the trial court imposed the upper term for that conviction. On appeal, defendant contends the trial court abused its discretion in imposing the upper term. We disagree and shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The testimony of several witnesses gave rise to inconsistencies. We resolve all explicit evidentiary conflicts in favor of the judgment and presume in its favor all reasonable inferences. (People v. Mack (1992) 11 Cal.App.4th 1466, 1468.)
The victim lived at a flophouse, a home where people come and go to use illegal drugs. In the early morning, the victim was enforcing curfew and stay-away hours. He had consumed about two pints of Captain Morgan and had smoked methamphetamine and marijuana. Defendant was sitting on the couch, next to two flophouse residents.
The victim asked defendant to leave. Defendant ignored him. Twice more the victim asked, eventually raising his voice. Defendant still did not respond.
The victim saw defendant's mountain bike inside the house. He took it outside, thinking that would get defendant's attention. Once outside, the victim picked up some loose extension cords and draped them over the bike. The victim testified the cords were not plugged in. Defendant maintained the cords were connected to a power box; that he saw sparks flying from his bike at one point; and that the victim told him if he touched the bike, it would "electrocute" him.
Five to 10 minutes later, defendant came outside. The victim was welding in the front yard. Seeing defendant, the victim put down his tools, as defendant walked toward him. They exchanged words: Defendant looked "aggressive" and called the victim "lame"; the victim called defendant a "punk-ass bitch." The victim then saw defendant reach into his pocket and said, "What are you going to do, stab me?" but he did not think defendant would attack him.
The victim turned to open the gate to let defendant out. With his back toward defendant, he felt what seemed like a punch in the back, but quickly realized he had been stabbed and was bleeding.
Defendant fled without his bike. As he did, the victim threw a bottle at him, but missed.
When police arrived, the victim initially lied about his injuries. He eventually conceded he had been stabbed. The victim denied pushing or striking defendant, or picking up a weapon. The victim never saw a knife in defendant's hand.
A witness told police he saw defendant make a stabbing-like motion towards the victim's rib area. The witness also said the victim did not defend himself in any way.
After the Stabbing
After the stabbing, defendant fled the property on foot and walked through a creek bed where he tossed the knife. He then went home, turned on his police scanner, and heard his name. Defendant's girlfriend contacted the police, and defendant arranged to meet with investigating officers.
Defendant initially denied any altercation or having a knife. When confronted with witnesses' statements, he admitted to an altercation. He claimed he found the knife on the ground, shortly before the victim punched him in the face. The officer could see a mark under his left eye—though it did not appear to be a bruise, swelling, laceration, or cut.
Defendant also claimed he had pushed the victim away, in order to leave the property, while the knife was in his hand.
Later on, the officer received an e-mail from defendant's girlfriend. The e-mail attached a photo of defendant, purporting to show his injuries from the victim.
The Victim's Injuries
The victim suffered a stab wound between two ribs, a fractured rib, a lacerated spleen and diaphragm, and a punctured lung. He needed emergency surgery, which included a splenectomy, reinflation of his lung, and suturing of his diaphragm, abdomen, and stab wound. He spent two weeks in the hospital.
Verdict and Imposition of the Upper Term
A jury convicted defendant of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and found he had inflicted great bodily injury (§ 12022.7). It also convicted him of two counts of misdemeanor resisting and obstructing an officer (§ 148, subd. (a)(1)).
Undesignated statutory references are to the Penal Code. --------
The trial court imposed a four-year upper term for assault, with a three-year enhancement for inflicting great bodily injury. It also imposed a one-year term for the misdemeanors, to run concurrently.
In selecting the upper term, the court listed numerous aggravating factors: The crime involved great violence; defendant was armed with and used a weapon; he interfered with the judicial process by throwing the knife into a creek bed; he fled the scene; he was uncooperative and dishonest with police; he appeared to have manufactured false evidence by hitting himself and blaming the victim; he engaged in violent conduct, which is a danger to society; his prior convictions are numerous and increasing in seriousness; and he has served a prior prison term. The court added, "I don't very often aggravate a sentence, but this may be a sentence where that would be appropriate given what appear to be overwhelming aggravating factors on balance."
In arguing for the middle term, defense counsel challenged the victim's credibility, arguing the victim was the aggressor. The trial court responded that it was comfortable with the jury's verdict and sufficient evidence supported it. But the court was not convinced that "sufficient and credible" evidence supported the victim's restitution claim of nearly $31,000 in lost wages.
DISCUSSION
On appeal defendant challenges the trial court's exercise of discretion in imposing the upper term for his assault with a deadly weapon conviction. While he concedes his crime involved great violence and he has suffered a prior prison term, he argues (1) the court erred in considering his arming and use of a weapon as a factor because an element of his crime cannot be used to impose the upper term; (2) he did not interfere with the judicial process; (3) he is not a serious danger to society; (4) his past crimes are not numerous; and (5) the victim was the initiator and a willing participant.
We conclude the trial court properly exercised its discretion.
1.0 Applicable Law
We review a trial court's decision to impose the upper term for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) An upper term may be based on "any aggravating circumstance" the court deems significant or any other circumstance (id. at p. 848), even if not enumerated in California Rules of Court, rule 4.421, so long as it is " 'reasonably related to the decision being made' " (Sandoval, at p. 848, quoting Cal. Rules of Court, rule 4.408(a)). A court abuses its discretion if it relies on circumstances not relevant to the decision or that "constitute an improper basis for decision." (Sandoval, at p. 847.)
A challenge to the sentence must show the decision was irrational or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) Absent 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.' " (Id. at pp. 977-978.)
2.0 Analysis
Here, defendant rightly concedes he has suffered a prior prison term, and his crime involved great violence. Indeed, the victim was left with permanent injuries, including loss of his spleen. We may affirm the trial court's exercise of discretion on that basis alone. (See People v. Black (2007) 41 Cal.4th 799, 815 [presence of a single aggravating circumstance permits a trial court to impose an upper term].) Nevertheless, we will address defendant's contentions and explain why reversal is not required.
2.1 Arming and use of a weapon were not proper aggravating factors
Defendant first argues the court erred in considering his arming and use of a weapon, because an element of the crime cannot be used to impose the upper term. We agree but find any error harmless.
Defendant's conviction for assault with a deadly weapon (§ 245, subd. (a)(1)) entails the use of a weapon. As such, the trial court could not properly rely on defendant's use of a weapon as an aggravating factor. (See People v. Flores (1981) 115 Cal.App.3d 924, 927 [elements of the crime may not be considered a factor in aggravation].) But to the extent the trial court considered that factor, it was harmless given the abundant aggravating factors. (See People v. Price (1991) 1 Cal.4th 324, 492 ["When a trial court has given both proper and improper reasons for a sentenc[ing] choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known some of its reasons were improper."].)
2.2 Defendant interfered with the judicial process
Defendant next contends he never interfered with the judicial process. He argues (1) he met with police as soon as he heard his name on the police scanner; (2) although he threw the knife into the creek bed, he never denied his knife injured the victim; and (3) while the court noted he fabricated evidence by hitting himself, the photograph of his injuries his girlfriend sent the investigating officer was taken before he was contacted by law enforcement. We find no error.
Relying on defendant's interference with the judicial process was neither irrational nor arbitrary. Though he arranged to meet with police after hearing his name on the scanner, he lied to them until confronted with witness statements. Though he eventually conceded the knife injured the victim, he still walked through a creek bed where he tossed the knife. And regardless of when the photo was taken, the record indicates the victim never hit defendant or defended himself in any way. Thus, it is reasonably inferred that any purported injuries on defendant were self-inflicted.
2.3 Defendant is a danger to society
Defendant next contents there is no evidence he is a serious danger to society. He argues the incident is unlikely to recur because it involved a personal altercation. We disagree.
After not responding when being asked to leave, defendant stabbed the victim in the back, with no more provocation than having his bike moved outside and extension cords placed on it—which he claims the victim said could "electrocute" him. Very few words were exchanged. That disproportionate response demonstrates defendant is a danger to society.
2.4 Defendant's past criminal proceedings were properly characterized as "numerous"
Defendant next challenges the court's characterization of his prior criminal proceedings as "numerous." We see no error.
Defendant has four convictions as an adult, three of them felonies. He also has a felony adjudication as a minor. We find no error in characterizing that record as containing numerous convictions. (See People v. Simpson (1979) 90 Cal.App.3d 919, 925 [five convictions is "more than ample" to justify finding numerous past crimes]; see also People v. Stuart (2008) 159 Cal.App.4th 312, 314 ["Six prior convictions are plainly 'numerous.' "].)
2.5 The victim's credibility with regard to his restitution claim does not render the imposition of the upper term an abuse of discretion
Defendant finally contends the trial court abused its discretion in recognizing issues with the victim's credibility but only with regard to his claim for restitution and not with regard to whether the upper term was warranted. Defendant argues the victim's credibility mitigated the crime to the point where the middle term was warranted. We disagree.
The trial court, while explaining that sufficient evidence supported the conviction, noted the victim initially lied to officers about his injury and was intoxicated with multiple substances. The court thus found the victim's claim for $31,000 in lost wages not credible.
But that credibility finding does little to alter the calculus that defendant engaged in highly violent and disproportionate behavior. And assuming arguendo the victim's lack of credibility was a mitigating factor, it would not render imposition of the upper term an abuse of discretion—particularly against the weight of the aggravating factors. (People v. Lai (2006) 138 Cal.App.4th 1227, 1258; People v. Salazar (1983) 144 Cal.App.3d 799, 813 [the "trial court may 'minimize or even entirely disregard mitigating factors without stating its reasons' "].)
In sum, overwhelming aggravating factors supported imposition of the upper term. Accordingly, the trial court acted well within its discretion in imposing the upper term.
DISPOSITION
The judgment is affirmed.
BUTZ, Acting P. J. We concur: MAURO, J. DUARTE, J.