Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR176100
Siggins, J.
Chris Gilbreth appeals following our remand for resentencing. He argues that the trial court violated the law of the case established by this court’s previous opinion because it denied him probation on grounds of eligibility rather than suitability. We conclude any error was harmless. Gilbreth also contends the court erroneously imposed the middle term of imprisonment for his use of a firearm. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We will only briefly summarize the facts of the offense and the trial. They are explained in greater detail in our partially published opinion in Gilbreth’s previous appeal. (See People v. Gilbreth (2007) 156 Cal.App.4th 53.)
In 2004, Gilbreth shot and killed his unarmed next-door neighbor, following a series of incidents that led the trial court to characterize the victim as “the neighbor from hell.” (People v. Gilbreth, supra, 156 Cal.App.4th 53, 55, 56.) Gilbreth was charged with murder, with several firearm enhancement allegations, and possession of a handgun by a convicted felon (based on a 1999 conviction for evading an officer). (Id. at p. 56.) The jury convicted Gilbreth of voluntary manslaughter, with use of a firearm, and possession of a firearm by a convicted felon. The court denied probation and sentenced Gilbreth to a three-year lower term for the manslaughter, a four-year consecutive middle term for the firearm use enhancement, and a consecutive eight-month term for possession of a firearm by a convicted felon. His total prison term was seven years eight months.
On appeal, we reversed Gilbreth’s conviction for possession of a firearm by a convicted felon because Gilbreth’s predicate offense had previously been reduced to a misdemeanor. (People v. Gilbreth, supra, 156 Cal.App.4th at p. 59.) In the unpublished portion of our previous opinion, we observed that “Much of the argument at [Gilbreth’s initial] sentencing hearing concerned his eligibility for probation.” (Id. [at p. 5] [nonpub. part].) The record of his sentencing hearing showed “[t]he trial court considered this to be an unusual case,” thus making Gilbreth eligible for probation. We remanded for resentencing “because [Gilbreth’s] status as a prior convicted felon may have weighed in significant part upon the trial court’s exercise of discretion” when it denied probation “in the interests of justice” and sentenced Gilbreth to state prison. (Id. [at pp. 6-7] [nonpub. part].)
Upon remand the trial court again denied probation. The court reimposed a three-year lower term for the manslaughter and a four-year consecutive middle term for the firearm use enhancement, for a total prison term of seven years. Gilbreth timely appealed.
DISCUSSION
A. Denial of Probation
A defendant “who used . . . a deadly weapon upon a human being in connection with the perpetration of the crime of which he or she has been convicted” is not eligible for probation “[e]xcept in unusual cases where the interests of justice would best be served if the person is granted probation . . . .” (Pen. Code, § 1203, subd. (e)(2).) In an “unusual case” where the statutory limitation on probation has been overcome, the court “should then apply the criteria listed in [California Rules of Court,] rule 4.414 to decide whether to grant probation.” (Rule 4.413(b).) Rule 4.414 lists a variety of facts relating both to the crime and to the defendant, including “[t]he nature, seriousness, and circumstances of the crime as compared to other instances of the same crime.” (Rule 4.414(a)(1).)
All further references to rules are to the California Rules of Court.
Gilbreth claims the trial court violated the law of the case established in this court’s previous opinion when it determined during resentencing that there were no “unusual circumstances,” and denied him probation. The Attorney General contends that “consideration of the context in which the court’s statement was made shows that the court was actually exercising its discretion under rule 4.414(a), and finding appellant factually unsuitable for probation, regardless of whether appellant was technically eligible due to this Court’s interpretation of the trial court’s prior ruling.” The Attorney General argues that “when the court used the term ‘unusual,’ it was primarily using it in the descriptive sense in finding under Rule 4.414(a) that the factors relating to the crime were not so different in comparison to other instances of the same crime as to justify the leniency of probation.” While we cannot be certain from the record that the court on remand confined its consideration to Gilbreth’s suitability (rather than eligibility) for probation, the court’s remarks during resentencing clearly demonstrate that a more favorable result was not reasonably probable in the absence of the alleged deviation from the law of the case. Any error was therefore harmless. (People v. Watson (1956) 46 Cal.2d 818, 836-837.)
The trial court’s comments during the resentencing proceedings might be interpreted to suggest that the court was not fully cognizant that its role on remand was limited to a determination of Gilbreth’s suitability for probation. During the initial hearing on remand, for example, the trial court discussed our previous opinion, and said: “Reading between the lines, because I referred to this case as being an unusual case, it is an unusual case factually, if perhaps not legally. But they say the record is unclear as to what I meant. So he has to be re-sentenced.” At the outset of the resentencing hearing, the trial court again referred to our previous opinion, and stated “the matter is remanded for resentencing because their interpretation of some of the comments I made, referring at least once, possibly twice, that this case was kind of unusual, they took that, I think, to mean possibly anyway in the legal sense and, therefore, probation should be considered.”
After hearing the parties’ arguments the court summarized the presentence report on the record. The court began by stating: “As they point out, the defendant is statutorily ineligible for probation pursuant to [Penal Code section] 1203(e)(2) unless unusual circumstances exist, because he used a deadly weapon on somebody.” The court then referred to a number of the presentence report’s statements regarding criteria affecting probation and circumstances in aggravation and mitigation.
Criteria affecting the decision to grant or deny probation are listed in rule 4.414. Circumstances in aggravation and mitigation, which may be considered by the sentencing court in the selection of a term of imprisonment, are listed in rules 4.421 and 4.423. (See also rule 4.420(b).)
The court concluded, “In any event, I don’t think any unusual circumstances exist. Frankly, I think your client got a very favorable sentence two years ago. In my view, whether it’s factual or legal in its analysis, the punishment should fit the crime. And I’m going to deny him probation.” These statements reflect that the court decided to deny Gilbreth probation, regardless of whether its analysis was based on his eligibility or his suitability. While the court could have explained its grounds for denial of probation more precisely, the court was not required to use the term “suitability,” and the record does not support Gilbreth’s claim that “the Court skipped-over the issue of ‘suitability’ entirely (and thus never exercised discretion) . . . .” The record instead shows the court read and considered the sentencing materials submitted by defense counsel as well as the probation report. Gilbreth acknowledges the trial court “appears to have thought carefully and conscientiously about what was, after all, a very hard case,” “recited many [though not all] of the rule 4.414 factors, and . . . engaged in on-record ‘fact finding’ about their applicability.” While Gilbreth now argues the court did not “perform a ‘real’ rule 4.414 analysis,” the record discloses no reasonable probability of a more favorable outcome had the court confined its analysis more precisely to Gilbreth’s suitability for probation.
Gilbreth also disclaims the argument that the court erred by failing to consider mitigating factors under the rule of People v. Kelley (1997) 52 Cal.App.4th 568.
Contrary to Gilbreth’s characterization of the proceedings, the record reflects no reasonable likelihood the court denied probation due to a mistaken belief Gilbreth was ineligible for probation due to a “new” legal finding that his case was not “unusual.” (Cf. People v. Ruiz (1975) 14 Cal.3d 163, 168 [defendant entitled to new hearing when sentencing court based its denial of probation “in significant part upon an erroneous impression of the defendant’s legal status,” i.e. that defendant stood convicted of possession of heroin for sale, as opposed to simple possession].) Nor does the record support Gilbreth’s claim that the trial court exceeded its jurisdiction because it “never reached the questions posed to it on remand.” Based on our review of the record as a whole, we conclude any deviation from the law of the case was harmless under People v. Watson, supra, 46 Cal.2d 818.
Gilbreth also contends in a footnote “that the Court’s failure meaningfully to record the reasons for its sentence choice itself was prejudicial error.” But the case on which he relies is distinguishable. In People v. Bobb (1989) 207 Cal.App.3d 88, 97, the court held that the choice of a low term sentence cannot “implicitly explain the decision to deny probation.” But defense counsel in Bobb “did not argue for or apparently expect probation,” and “the court gave no reasons” for choosing imprisonment over probation. (Id. at pp. 96-97.) Here, counsel argued strenuously for probation, but the court explicitly rejected that option and instead stated its view that “the punishment should fit the crime.”
Gilbreth also contends the judgment violated his due process right “to be free from a vindictive increase in his punishment in apparent retaliation for his having exercised his right to challenge his sentence on appeal.” (See North Carolina v. Pearce (1969) 395 U.S. 711, 723-725.) Gilbreth claims the effect of the trial court’s decision was to increase his minimum potential sentence on remand from zero to three years when its error eliminated the option of probation because it considered the case “not unusual.” But the court denied probation because “whether it’s factual or legal in its analysis, the punishment should fit the crime.” The court reimposed Gilbreth’s original sentence, deleting the term for possession of a firearm by a convicted felon that was reversed on Gilbreth’s previous appeal. (People v. Gilbreth, supra, 156 Cal.App.4th at p. 59.) Gilbreth has not shown any facts to suggest that his punishment was increased in retaliation for his previous appeal. (Cf. In re David B. (1977) 68 Cal.App.3d 931, 936 [successful challenge to juvenile adjudication could not be “punished” on retrial by prosecution of minor as an adult].)
B. Firearm Use Enhancement
Gilbreth argues the trial court erred when it imposed the middle term of imprisonment on an enhancement for his use of a firearm because “[o]n the unique facts of this case, the weapons use was mitigated as a matter of law.” We disagree.
The Attorney General argues Gilbreth’s failure to object to the reasons for the sentencing choice at trial waived the issue on appeal. To the extent that Gilbreth’s argument may be construed as a challenge to an illegal sentence, we also reject it on the merits, as discussed below.
The court said it chose the middle term “because of [Gilbreth] being armed, having that weapon concealed, and having shot an unarmed man.” The court further observed: “There’s nothing mitigated about using a firearm, in my view.”
Gilbreth concedes: “Courts have broad sentencing discretion with respect to enhancements.” “Reasons sufficient to justify a sentence choice on an enhancement need not be confined to the actual conduct triggering the enhancement allegation,” and “[the fact] that an underlying charge is deemed to be mitigated does not mean that the enhancements pertaining to it must also be mitigated . . . .” But, even so, he argues the middle term “was not reasonable on the unique set of facts pertaining to this case.”
Gilbreth first argues the court abused its discretion because the factors it relied on “were either legally irrelevant or factually wrong.” This argument was waived by his failure to object in the trial court, and also fails on the merits. (See People v. Brown (2000) 83 Cal.App.4th 1037, 1041-1042.) The evidence supports the court’s finding that Gilbreth chose to bring a concealed weapon to his encounter with his belligerent but unarmed neighbor. The court properly relied on the probation report’s analysis of the factors in aggravation, including the victim’s particular vulnerability and the indication that Gilbreth planned on shooting the victim because he “obtained a weapon” and “had it hidden on his person when he walked out on that porch . . . .” (See id. at p. 1043 [“a single factor in aggravation is sufficient to justify a sentencing choice, including the selection of an upper term for an enhancement”]; People v. Castaneda (1999) 75 Cal.App.4th 611, 614 [“A judge’s subjective belief regarding the length of the sentence to be imposed is not improper as long as it is channeled by the guided discretion outlined in the myriad of statutory sentencing criteria”].)
Gilbreth says “his sentence should have been mitigated as a matter of law.” But the record does not support Gilbreth’s argument that “there were no relevant facts respecting the [firearms use] allegation other than those giving rise to enhancement eligibility in the first place.” Nor has Gilbreth shown “that the only rational sentence for [his] weapons use was the mitigated term.” (See People v. Brown, supra, 83 Cal.App.4th at pp. 1044-1046 [trial court could reasonably conclude misuse of handgun was aggravated by factors that included infliction of great bodily injury on unarmed victim].) While Gilbreth claims the court initially “agreed with” his argument that the firearms use enhancement should be mitigated because he was no longer an ex-felon in possession, the record suggests the court simply agreed to “take [the fact defendant was not an ex-felon] into consideration.” The court’s decision to ultimately reject Gilbreth’s position and impose the middle term on the enhancement does not demonstrate an abuse of discretion. (See Pen. Code, § 1170, subd. (b); People v. Sandoval (2007) 41 Cal.4th 825, 847; People v. Brown, supra, at p. 1046.)
DISPOSITION
The judgment is affirmed.
We concur: Pollak, Acting P.J., Jenkins, J.