Opinion
C052619
12-11-2006
THE PEOPLE, Plaintiff and Respondent, v. RICHARD PAUL CHAPMAN, JR., Defendant and Appellant.
Defendant Richard Paul Chapman, Jr. entered a negotiated plea of guilty to second degree robbery (Pen. Code, § 211) pursuant to People v. West (1970) 3 Cal.3d 595 in exchange for a sentencing lid of three years. The court denied probation and imposed the low term of two years.
Defendant appeals. He did not obtain a certificate of probable cause (Pen. Code, § 1237.5).
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief, requesting that this court consider his "side of the story" and why "only one picture [was] taken" where the victim was found. He asks for a reduction in his prison term.
To the extent defendant challenges the factual basis for his plea, his complaints are noncognizable on appeal because he pled guilty, admitting every element of the offense. (People v. Turner (1985) 171 Cal.App.3d 116, 124-127 & fn. 8.)
To the extent defendant challenges his sentence and is arguing the trial court abused its discretion in denying probation, we reject his claim. At the entry of plea hearing, the parties stipulated to using the preliminary hearing transcript for the factual basis for the plea.
Deputy Sheriff Dan Dentone testified at the preliminary hearing that the victim stated that "he was walking down the road when somebody assaulted him from behind [and] hit him in the head [with a blunt object] and took his wallet." Deputy Dentone described the victim as five feet nine inches tall and weighing 150 pounds and "pretty well intoxicated." The bartender stated that the victim drank seven beers in four hours, appeared to be intoxicated and had been refused any more alcohol around midnight. When interviewed by Deputy Dentone, defendant claimed he had walked the victim towards his home and the victim fell down twice. Defendant claimed the victim took some swings at defendant. Defendant stated he hit the victim three times and left. Although defendant initially denied taking the victims wallet, when confronted with a claim that a surveillance camera showed otherwise, defendant said he would not say anything with a tape recorder on. When the recorder was turned off, defendant admitted taking $400 from the wallet and tossing it in the brush. The deputy described defendant as five feet 10 to eleven inches tall and weighing 240 to 250 pounds.
At sentencing, the court stated that it had considered "not only the probation report but the four page statement from the defendant attached to the probation report," "an additional three page letter written by the defendant dated April 21st 2006" and "the letter from his sister Tamara Chapman[,] his grandmother Helen Baker, and Cheryl Edwards." The probation report recommended local time and probation.
The prosecutor opposed the probation officers recommendation, arguing that defendant was ineligible for probation unless an unusual case finding was made citing Penal Code section 1203, subdivision (e)(3) (infliction of great bodily injury), and the fact that the victim suffered lacerations to the back of his head and to his face and had been struck from behind. Even assuming the probation limitation did not apply, the prosecutor argued that probation should be denied because the victim was particularly vulnerable in that he was developmentally disabled, of small stature in comparison to defendant and intoxicated at the time of the offense. In addition, the prosecutor argued probation should be denied based on defendants infliction of emotional and physical injuries and his inconsistent stories about the event. The prosecutor sought the midterm of three years in prison.
Defense counsel disputed that the victim was hit from behind. Defense counsel relied on the preliminary hearing testimony of the officer who interviewed a bartender and the victim. The bartender and the officer believed that the victim was intoxicated. When interviewed by the officer, the victim could not explain how he suffered the laceration over his eye. Defense counsel noted that defendant admitted hitting the victim in his face and claimed he did so in response to the victim swinging at him and as a result, the victim fell backwards. Defendant also admitted taking the victims money but expressed remorse. Defense counsel requested probation.
The probation report reflects that the 32 year old victim lived with his grandparents. His grandmother explained that the victim "was brain damaged at birth; he is developmentally delayed, with an intelligence quotient of 70" and had "emotional difficulties, making it difficult for him to deal with stressors." The victim lost $400 from his wallet and missed one week of work and $135 in wages. He worked at a fast-food restaurant 20 hours a week.
In denying probation, the trial court concluded that defendant was eligible, but numerous factors weighed against a grant of probation, including that the victim was extremely vulnerable and defendant inflicted physical and emotional injury. In mitigation, the court noted that defendant was willing to comply with probation, had expressed remorse and had a minimal prior record. The court found the factors in aggravation outweighed those in mitigation.
"`A denial or a grant of probation generally rests within the broad discretion of the trial court and will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner. [Citation.]" (People v. Downey (2000) 82 Cal.App.4th 899, 909.) "A remand for resentencing is required when the court fails to consider relevant mitigating factors." (People v. Kelley (1997) 52 Cal.App.4th 568, 582.)
Defendant has failed to demonstrate that the sentencing court abused its discretion in denying probation. The court considered the relevant sentencing factors and concluded that those in aggravation outweighed those in mitigation. In aggravation, the court found that the victim was extremely vulnerable. The record supports the courts finding. The victim was developmentally disabled and intoxicated at the time of the offense. Defendant admitted hitting the victim who sustained a laceration on his face and on the back of his head, whether hit from behind or not. The trial court was well within its discretion to conclude that the aggravating factors outweighed those in mitigation to deny probation.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
We note an error in preparation of the abstract of judgment. The abstract reflects 17 actual days plus 133 conduct days for a total of 116 days of presentence custody credit. The abstract should be corrected to reflect the sentencing courts award of 116 actual days plus 17 conduct days for a total of 133 days of presentence custody credit. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The trial court is directed to prepare a corrected abstract of judgment to reflect 116 actual days plus 17 conduct days for a total of 133 days of presentence custody credit and to forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is affirmed.
We concur:
HULL, J.
ROBIE, J.