Opinion
B228919
12-01-2011
THE PEOPLE, Plaintiff and Respondent, v. EDWARD DAWSON, Defendant and Appellant.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Blythe J. Leszkay and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA111466)
APPEAL from a judgment of the Superior Court of Los Angeles County. Gary E. Daigh, Judge. Affirmed.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Blythe J. Leszkay and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Edward Dawson appeals from his conviction of second degree robbery and aggravated assault. Challenging only his sentence, defendant contends that the trial court abused its discretion in selecting the upper term of imprisonment on count 1. We find no abuse of discretion and affirm the judgment.
BACKGROUND
Defendant and his codefendant Reginald Shell (Shell) were charged together with two felonies. Count 1 alleged second degree robbery in violation of Penal Code section 211. Count 2 charged defendants with assault by means likely to produce great bodily injury, in violation of section 245, subdivision (a)(1). The amended information alleged that both offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(C), and that defendant personally inflicted great bodily injury upon the victim within the meaning of section 12022.7, subdivision (a).
All further statutory references are to the Penal Code, unless otherwise indicated.
Defendant's motion to sever his trial from that of Shell's was denied and a joint jury trial went forward. Shell was acquitted of the charges.
The information also alleged, for purposes of denial of probation under section 1203.9, subdivision (f) that the victim was over the age of 60 years and for purposes of section 12022.1, that defendant was out of custody on bail or his own recognizance at the time of the offense. The section 12022.1 allegation was not pursued after the underlying charge was dismissed by another court. The court did not mention section 1203.9 at sentencing, but probation was not granted.
The prosecution evidence showed that on March 24, 2010, defendant and Shell approached 64-year-old Booker T. Gilford (Gilford) at a train station as he was about to purchase a ticket. Shell asked Gilford if he had any change, and as he reached into his pocket for change, defendant knocked him unconscious. The blow caused Gilford to suffer a subarachnoid hemorrhage, a potentially fatal injury that kept him in intensive care for several days. Some money and a cellular telephone were taken from Gilford while he was unconscious. A station camera captured the incident on video, which was shown to the jury.
A prosecution gang expert testified that in his opinion, the robbery and assault were committed for the benefit of defendant's gang, the Hard Time Hustler Crips. A defense gang expert testified that in his opinion, the robbery and assault were not committed for the benefit of a gang.
Defendant was convicted of both offenses. The jury found the great bodily injury allegation true as to both counts, but found the gang allegation not true. On September 30, 2010, the trial court sentenced defendant to the upper term of five years on count 1, plus three years for the great bodily injury finding. The trial court imposed the middle term of three years as to count 2 and stayed the term pursuant to section 654. Defendant filed a timely notice of appeal from the judgment.
DISCUSSION
Defendant contends that the trial court abused its discretion in sentencing him to the upper term on count 1.
Relying on People v. Scott (1994) 9 Cal.4th 331, 353, respondent contends that defendant has forfeited this issue by failing to object to the trial court's reasons for imposing the upper term. The trial court listened to the arguments of both counsel regarding circumstances in aggravation, and defense counsel made some of the points argued here. Because any further objection would probably have been futile, there is no forfeiture. (See People v. Welch (1993) 5 Cal.4th 228, 237-238.)
"'Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citations], and may balance them against each other in "qualitative as well as quantitative terms" [citation] . . . . We must affirm unless there is a clear showing the sentence choice was arbitrary or irrational.' [Citations.]" (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582 (Avalos).) A trial court "need not explain its reasons for rejecting mitigating factors. [Citation.]" (Id. at p. 1583; People v. Lamb (1988) 206 Cal.App.3d 397, 401 (Lamb).) Further, "a single factor in aggravation suffices to support an upper term. [Citation.]" (People v. Osband (1996) 13 Cal.4th 622, 730.)
Defendant bears the burden to establish an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.) Absent a showing that the trial court's sentencing choices were irrational or arbitrary, the court is presumed to have acted properly within its discretion, and we are not authorized to substitute our judgment for the judgment of the trial court. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978 (Alvarez).)
After hearing the argument of counsel, the trial court found the brutality of the attack to be an aggravating factor, explaining that the video showed that "one punch cold cocked a tall man, just out on his feet and it was just a brutal attack." The court acknowledged that defendant's juvenile record was not extensive, but noted that defendant had been sent to camp at the age of 15 for battery on a custodial officer. The trial court found this history to be an aggravating factor because it showed that defendant "had this character, if you will, of using violence against people."
Defendant contends that both factors cited by the trial court were mitigating rather than aggravating factors. He argues that knocking the victim unconscious with one blow was a mitigating factor because he used no weapon. Defendant argues that his juvenile offense was a mitigating factor because it was five years old and could not have been serious, as it resulted only in a suitable placement order.
Defendant does not explain how a suitable placement order shows that a battery was not serious, or how only the use of a weapon could be considered brutal. Moreover, a discretionary sentencing choice is not irrational or arbitrary merely because reasonable people might disagree. (Alvarez, supra, 14 Cal.4th at p. 978.) However, even if a reasonable basis for disagreement were enough to establish an abuse of discretion, defendant has not shown that reasonable people might disagree, or that any reasonable person might think that the aggravating factors cited by the trial court were in fact mitigating factors.
Indeed, defendant cites no authority to support his contentions other than sentencing rules, People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), and People v. Ybarra (2008) 166 Cal.App.4th 1069 (Ybarra), which provide no such support. Neither the rules nor the two cases suggest that a five-year-old juvenile battery offense is not serious or does not, when considered with the current offense, indicate a violent character. Nor do they suggest that knocking a man unconscious with one blow is not brutal.
Defendant does not refer to a particular holding or page number in either case. In Sandoval, other than reviewing a sentence under California's former determinate sentencing law, which is not applicable here, the California Supreme Court stated general principles such as, "a trial court will abuse its discretion under the amended scheme if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision. [Citations.]" (Sandoval, supra, 41 Cal.4th at p. 847.) We assume that this is the basis of defendant's citation. We cannot guess at defendant's reason for citing Ybarra, which applied Cunningham v. California (2007) 549 U.S. 270 to a sentence imposed under the former determinate sentencing law, but stated no general principles that might be useful here.
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Defendant does not contend that the trial court was prohibited from considering the two aggravating factors it cited. As respondent notes, the two factors are fairly described in the sentencing rules as aggravating circumstances that justify the upper term. Thus, this brutal crime involved great violence or disclosed a high degree of cruelty, viciousness, or callousness, as stated in California Rules of Court, rule 4.421(a)(1). Further, defendant's violent conduct indicates a serious danger to society, as stated in rule 4.421(b)(1), particularly when considered with his history of violence. Regardless, the trial court was entitled to base its discretionary sentencing decisions on any additional criteria reasonably related to the decisions. (See Rule 4.420(a).) As the court's stated reasons were reasonably based on defendant's conduct and the nature of the crime, we find no abuse of discretion. (Ibid.; see Rule 4.421; Sandoval, supra, 41 Cal.4th at p. 847.)
Defendant suggests that the trial court should have considered the mitigating effect of his early admission of guilt (denying only the gang allegation), and must have "forgotten" or "ignored" it. (See Cal. Rules of Court, rule 4.423(b)(1).) It is presumed that the court considered mitigating factors unless the record affirmatively shows otherwise. (People v. Johnson (1988) 205 Cal.App.3d 755, 758; Cal. Rules of Court, rule 4.409.) The record does not show otherwise. At sentencing, the prosecutor represented to the court that defendant would have pled guilty to the charge had there not been a gang allegation. Thus, the factor was before the trial court, and we presume it was considered. "[T]he trial court need not state reasons for minimizing or disregarding circumstances in mitigation [citation]." (Lamb, supra, 206 Cal.App.3d at p. 401; see also Avalos, supra, 47 Cal.App.4th at p. 1583.)
We conclude that defendant has not met his burden to establish that the reasons for the trial court's sentencing choices were improper or that the trial court otherwise abused its discretion. Moreover, defendant would be entitled to a reversal only upon showing a reasonable probability "that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. [Citation.]" (People v. Price (1991) 1 Cal.4th 324, 492.) Defendant has made no such showing.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
CHAVEZ We concur: ___ Acting P. J.
DOI TODD
___, J.
ASHMANN-GERST