Opinion
C041814.
7-22-2003
THE PEOPLE, Plaintiff and Respondent, v. DAVID GATHINGS, Defendant and Appellant.
A jury convicted defendant David Gathings of voluntary manslaughter (Pen. Code, § 192, subd. (a)) and found true the allegation that he personally used a firearm in the commission of that offense (§ 12022.5, subd. (a)(1)). The trial court sentenced defendant to state prison for 16 years, a term consisting of the six-year middle term for manslaughter and a consecutive 10-year upper term for the firearm use enhancement.
In a previous appeal, defendant challenged the 10-year upper term for the firearm use enhancement, claiming the trial court misapplied the aggravating factor that the firearm use was premeditated. Agreeing with defendant that the trial court so erred, and finding defendants trial counsel rendered ineffective assistance by failing to object to that error, this court vacated the 10-year upper term for the enhancement and remanded the matter to the trial court for resentencing. (People v. Gathings (Mar. 26, 2002, C037753) [nonpub. opn.].)
On remand, the trial court imposed the 10-year upper term for the section 12022.5, subdivision (a)(1) sentence enhancement. The court based its selection of the same term it had imposed previously on the finding that defendant had discharged his firearm "intentionally multiple times." Arguing the record did not support the finding that he fired the weapon intentionally more than once, defendant objected to the courts reason for its selection of the upper term.
In this appeal, defendant contends the trial court abused its discretion in imposing the upper term for the firearm use enhancement. According to defendant, in light of the jurys verdict, it was improper for the trial court to find defendant intentionally fired his weapon. Defendant also claims the court erred in allegedly relying on his use of a firearm in the drug business to impose the aggravated term. Defendant argues the single aggravating factor cited by the court is insufficient by itself to justify imposition of the upper term. Finally, in his reply brief, defendant urges this court to reject the suggestion by the People that even if the trial court erred, any error was harmless in light of the existence in the record of other aggravating factors not relied on by the court.
As defendant acknowledges, a single factor in aggravation is sufficient to justify imposition of the upper term. (People v. Piceno (1987) 195 Cal. App. 3d 1353, 1360, 241 Cal. Rptr. 391.) Moreover, the sentencing court has broad discretion in weighing aggravating and mitigating circumstances, and that court may balance them in qualitative and quantitative terms. (People v. Roe (1983) 148 Cal. App. 3d 112, 119, 195 Cal. Rptr. 802; People v. Evans (1983) 141 Cal. App. 3d 1019, 1022, 190 Cal. Rptr. 633.) Absent a clear showing the courts sentencing choice was irrational or arbitrary, the appellate court must affirm that choice. (People v. Hubbell (1980) 108 Cal. App. 3d 253, 260, 166 Cal. Rptr. 466.)
In this case, doubtless as a consequence of the remand, the trial court was careful to explain the precise basis for its conclusion that the aggravated term for the enhancement was the appropriate sentence for defendant. By its statements, the court also took pains to make clear what it was not relying on. In the courts words, "I think [defendant] did well by the jury. Ill say that at least it seemed to me that that was at least second degree murder, at least. But Im not — I dont want to use that circumstance because or rely upon [sic] that I dont want to really feel the Courts misunderstanding me because I failed to articulate some circumstance. I know another circumstance which I could use but will not is the fact that he carried a gun in his drug business. This was how he did business."
The trial court also recognized and assessed mitigating circumstances relating to defendant. For example, at one point the court commented as follows: ". . . You know on [sic] [defendants] good behavior in a prison and his efforts to rehabilitate himself may justify that decision about the poor judgment of youth, which will be cured by the wisdom of age. [P] But finally to view the choices I have to make about mitigation and aggregation [sic] very, very narrowly the Court doesnt say that I must do this, but they do suggest it a bit when he talks about a manner in which the gun is used. If we look at it that way, I did hear the case and I made two observation [sic] the first is that the medical expert that testified indicated that after the arm was shot there would be very little strength in [the victims] hand. [P] That being the case, [defendant] would have been in a position to understand that he had weakened his intent. [Sic.] Second, while it is an open question about whether the first shot was intentional or not, it may well have been accidental. I really think there is insufficient evidence upon which to make a judgment in that regard. [P] I am satisfied that the second and third shots were intentional. And so viewing it very narrowly, the Court find [sic] that the gun was fired intentionally multiple times and for that reason selects the aggravated term of ten years for the enhancement."
Finally, the trial court articulated the linchpin of its analysis: ". . . Im going to focus and choose to focus very clearly in how the gun was used."
On the record before it, we conclude the trial courts decision to impose the aggravated term for the firearm use enhancement was well within its discretion. As we have suggested, and contrary to defendants claims, the record reflects the courts determination not to be influenced by circumstances such as its belief defendant carried a firearm because he was in the drug business, or that he merited conviction for murder rather than manslaughter. Moreover, we discern no misapplication by the court of the criteria relating to imposition of the aggravated term.
Defendant argues the trial courts finding of an intentional shooting is inconsistent with the jurys verdict. Defendant errs. Although voluntary manslaughter does not require an intent to kill (People v. Lasko (2000) 23 Cal.4th 101, 110, 999 P.2d 666), it does require the doing of an intentional act. Moreover, the personal use of a firearm requires a showing the defendant intentionally displayed or fired it. (Cf. People v. Alotis (1964) 60 Cal.2d 698, 706-707, 36 Cal. Rptr. 443, 388 P.2d 675.) Here, although it rejected a verdict of second degree murder and its accompanying firearm discharge enhancement, the jury found defendant personally used a firearm. Accordingly, cases cited by defendant such as People v. Spencer (1996) 51 Cal.App.4th 1208, which considered the use of various factors by the trial court that were inconsistent with the findings by the jury, are inapposite.
Defendant acknowledges that the firing of multiple shots "arguably" is a proper aggravating factor. Indeed it is. (Cal. Rules of Court, rule 4.421(a)(1).) Firing multiple times, especially when the victim already is wounded, is a cruel and vicious act within the meaning of the rule. But defendant also asserts the court failed to assign that factor sufficient qualitative weight so that it was shown to be greater than the mitigating circumstances present in the case.
The record belies defendants assertion. It shows the trial court recognized defendants mitigating factors but found that the extreme manner of the use of the firearm under the circumstances faced by defendant outweighed the circumstances in mitigation, justifying the aggravated term. Such a finding was well within the broad exercise of the courts discretion.
We find no abuse of discretion in the sentencing determination made by the trial court. Our review of both the record and of the comments made by the court persuades us that the decision to impose the upper term was not an arbitrary or irrational one. (People v. Welch (1993) 5 Cal.4th 228, 234, 851 P.2d 802.) In light of our disposition, we need not consider the assertion by the People that any error was harmless due to the presence of other valid aggravating factors not considered by the trial court.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P.J., KOLKEY, J. --------------- Notes: All further statutory references are to the Penal Code.