Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM026882
ROBIE, J.
Defendant Logan Duane Hursh pled no contest to assault by means likely to produce great bodily injury and admitted personally inflicting great bodily injury on a person 70 years or older. At sentencing, the trial court found defendant presumptively ineligible for probation under Penal Code section 1203, subdivision (e)(3), declined to find it an unusual case, denied probation, and sentenced defendant to nine years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant appeals, contending the court abused its discretion both in denying probation and in imposing an upper term sentence. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On April 3, 2007, just after 4:00 a.m., 84-year-old G. C. woke to the sound of her dogs howling from the back porch. She grabbed her gun and went into the living room. When she heard glass breaking, she picked up the phone and dialed 911. As she spoke with emergency personnel, she saw defendant, naked, climb through the window into the house. G. C. left the phone line open and hid the phone, hoping help would find her. Unfamiliar with guns, she tried to shoot at defendant but instead fired into the ceiling. Defendant stood looking at his hands, then “‘rushed’” G. C., tackling her and slamming her into the wall. He punched her in the face and head with his fists until she fell unconscious to the ground.
Defendant could be heard on the audiotape of the 911 call repeatedly yelling, “‘I hate you’” as he beat G. C.
As G. C. lay on the floor bleeding and unconscious, defendant walked to the kitchen and looked inside the refrigerator. He next went to the bathroom to clean the blood off of him, but was unable to turn the faucet on, so he went to G. C.’s bedroom and lay down on the bed. Meanwhile, G. C. regained consciousness and attempted to continue her communication with the 911 dispatcher who had remained on the line.
When sheriff’s deputies arrived, they saw two six foot fences surrounding the house. They jumped the first fence and found the second unlocked. One of the front windows on the house was broken and there was blood on the window frame. Defendant stood looking out the window, but hid as they approached.
Deputies kicked in the front door and found G. C. on the floor in the hallway wearing only a torn bra and underwear and covered in blood. They pulled her to safety and she was treated by medical personnel and taken to the hospital. When deputies ordered defendant out of the bedroom, he came out, yelling, “‘Don’t shoot me.’” He was naked and covered in blood, and had defecated on himself. Defendant was arrested and taken to the hospital to be treated for injuries sustained during the break-in.
G. C. suffered a broken left jaw, deep lacerations to her bottom lip, lacerations on the back of her head, swelling and bruising on her face. Medical personnel noted she would require surgery to repair the broken bones in her jaw and facial area. At the sentencing hearing, G. C. testified that she had staples and a cut on her head, “was blind and deaf, could not eat or stand” and “could not urinate.” She now has a plate in her jaw, she has to use “very expensive hearing aids,” her mouth drops to the left and sometimes trembles uncontrollably and the right side of her face is sinking in. Before the attack, G. C. was “able to do anything even cutting and stacking firewood.” Now she has to pay others to do those chores for her.
As deputies left the house, they encountered defendant’s father, A. H., Sr., his brother, A. H., Jr., and a 17-year-old woman, H. B. H. B. told deputies she and the other two men had driven to Berry Creek with defendant and had ingested hallucinogenic mushrooms, but defendant “‘freaked out’” and ran away.
A. H., Sr., said nothing about ingesting mushrooms, but told deputies he and the other three decided to drive to Bald Rock for a “‘spiritual cleansing’” but missed the turnoff and stopped and drank some alcohol instead. Defendant began to “‘act weird’” and became “‘loud and obnoxious,’” and eventually ran off and would not let anyone near him.
A. H., Jr., confirmed that the group was headed to Berry Creek for a “‘spiritual cleansing,’” but got lost and stopped to drink alcohol instead. A. H., Jr., heard H. B. yelling and saw the defendant “‘being rough’” with her. Defendant ran off and they followed him, finding his clothes strewn about. A. H., Jr., stated defendant “might” have ingested mushrooms, but “could not say.”
Defendant told deputies he and his brother and father decided to go to Bald Rock and ingest mushrooms to “‘celebrate the full moon.’” Defendant said he ingested “‘way too many’” mushrooms and quickly began to feel the affects. He recalled running through the woods and hitting signs and sign posts and possibly some dogs, and remembered going over different fences and being in a “dream-like” trance. At times, he “did not believe anything was real.” Defendant tried to get into the victim’s house but the front door was locked. The curtains “‘looked warm’” so he broke the window and crawled through “to get warm.” He lay down but, when he heard several loud pops, he looked up and saw the victim with a gun. He admitted he “‘rushed’” her and tackled her with a “‘football-type tackle,’” slamming her into the wall. As she was falling to the floor, he punched her in the face and head at least three times. Defendant stated he felt tired and “‘nothing made sense,’” telling deputies he committed the crimes because he was in an “‘altered state,’” suffering from the affects of the mushrooms.
Defendant told deputies he brought the mushrooms, but deputies noted that he “did not appear to be sincere with his statements” in that regard.
Deputies searched defendant’s car, finding, among other things, a psilocybin mushroom, empty beer cans, and a paper sack containing marijuana.
Toxicology reports showed that blood samples taken from defendant the day of his arrest were negative for all controlled substances, including psilocin/psilocybin mushrooms and alcohol. Defendant’s urine sample was positive for marijuana.
A subsequent toxicology report showed that a urine sample taken from the defendant two months later on June 29, 2007, tested positive for psilocin mushrooms.
Defendant first pled not guilty and not guilty by reason of insanity, and the court ordered an examination pursuant to section 1026. Defendant subsequently withdrew his insanity plea, entered a plea of no contest to assault and admitted the special allegation. A charge of elder abuse was dismissed with a Harvey waiver.
People v. Harvey (1979) 25 Cal.3d 754.
At sentencing, the court found defendant presumptively ineligible for probation pursuant to section 1203, subdivision (e)(3) and declined to apply the “unusual case” exception, finding that, even if defendant were eligible for probation, it would be denied given the “nature, seriousness and circumstances of the case.” The court imposed the upper term of four years, plus an additional five years for the enhancement, for an aggregate prison sentence of nine years. Defendant filed a timely notice of appeal.
DISCUSSION
I
Denial Of Probation
Defendant contends the trial court’s denial of probation was an abuse of discretion. He asserts the court erred by: (1) finding he was presumptively ineligible for probation; (2) failing to find that unusual circumstances existed for granting probation; and (3) improperly considering letters submitted by members of the community.
“The grant or denial of probation is within the trial court’s discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion.” (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) He must clearly show that the sentencing decision was irrational or arbitrary. “‘“In the absence of 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.”’ [Citations.]” (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) The court’s “‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.)
Defendant first claims the trial court incorrectly found he was presumptively ineligible for probation under section 1203. Defendant argues the court failed to consider circumstances rendering the case “unusual” for purposes of overcoming the statutory presumption against probation. The People argue defendant forfeited his claim by failing to raise it before the trial court. (People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13; People v. Scott (1994) 9 Cal.4th 331, 354.)
In any event, we need not decide the issue of presumptive ineligibility or whether this constitutes an “unusual” case for purposes of overcoming the presumption because the trial court stated that, “even if the defendant were not statutorily ineligible, probation would be denied” due to the “nature, seriousness and circumstances of the case.” The record supports that determination. Defendant crossed two six foot fences and broke a window to get into the victim’s home at 4:00 a.m. The victim, an 84-year-old woman weighing little more than 100 pounds, tried to protect herself with a gun, but could only fire into the ceiling. Instead of turning and fleeing, defendant, who is 18 years old, nearly a foot taller than the victim and twice her weight, tackled the victim and beat her until she lost consciousness. He then made himself at home in the house while the victim lay bleeding on the floor, struggling to breathe. Recognizing, as a mitigating factor, that defendant was intoxicated from his use of mushrooms, the trial court nonetheless found the circumstances to be sufficient to deny defendant probation. We do not find that decision to be in any way arbitrary, capricious, or exceeding the bounds of reason. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)
Defendant also contends the court abused its discretion by considering letters from the Berry Creek community at sentencing because, he argues, none of the letters related to him as required by California Rules of Court, rule 4.411.5(a)(7). We disagree. Rule 4.411.5(a)(7) requires that a presentence probation report contain, among other things, collateral information, including written statements from “[i]nterested persons, including family members and others who have written letters concerning the defendant.” (Cal. Rules of Court, rule 4.411.5(a)(7)(B).)
“[A] sentencing court may consider a broad range of information in deciding whether to grant probation in a particular case. Due process does not require that a criminal defendant be afforded the same evidentiary protections at sentencing proceedings as exist at trial. [Citations.] A sentencing judge may consider responsible unsworn or out-of-court statements concerning the convicted person’s life and characteristics. [Citations.] Fundamental fairness, however, requires that there be a substantial basis for believing the information is reliable. [Citation.]” (People v. Lamb (1999) 76 Cal.App.4th 664, 683.)
“It is well settled that allowing statements from the friends and family of the victim of a violent crime does not violate due process or the defendant’s right to confront and cross-examine witnesses so long as the defendant had notice that the statements would be accepted and had an opportunity to respond. [Citations.]” (People v. Mockel (1990) 226 Cal.App.3d 581, 586-587.) Here, the letters from the community were attached to the probation report and defendant had the opportunity to read and respond to all of the letters submitted. The court considered the letters from the community, noting that although they were appropriate, he gave them “very little weight” in the sentencing determination.
Defendant fails to demonstrate any irrationality or arbitrariness in the trial court’s denial of probation. There is no abuse of discretion.
II
Imposition Of Upper Term
Defendant first contends the court abused its discretion when it imposed the upper term because the court improperly relied on letters from the community. For the reasons set forth in part I of this opinion, we conclude the court did not err in considering those letters. In any event, there is no prejudice because the letters from the community were given “very little weight” by the court, and it is therefore not reasonably probable defendant would have obtained a more favorable result had the letters not been considered. (People v. Osband (1996) 13 Cal.4th 622, 729-730.)
Next, defendant contends imposition of the upper term violates his right to due process and a jury trial under Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856]. He is wrong.
Defendant was sentenced on October 31, 2007, well after the Legislature amended section 1170, subdivision (b), to provide that “[w]hen a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . The court shall select the term which, in the court’s discretion, best serves the interest of justice. The court shall set forth on the record the reasons for imposing the term selected . . . .” (Stats. 2007, ch. 3, § 2, eff. March 30, 2007.)
Defendant was sentenced when there was no longer a presumptive middle term and the sentencing court was free to exercise its discretion within the range, requiring no fact finding to justify the upper term. The Sixth Amendment issue identified in Cunningham has been remedied by Senate Bill No. 40’s amendment of section 1170, subdivision (b). Our Supreme Court has determined the Senate Bill No. 40 system satisfies the demands imposed by Cunningham (People v. Sandoval (2007) 41 Cal.4th 825, 852) and we are bound to follow the Supreme Court’s decision (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455). Moreover, because defendant committed his offenses (April 3, 2007) after the effective date of the amendment (March 30, 2007), there is no due process or ex post facto violation in utilizing the new sentencing procedure under these facts. (Sandoval, supra, at pp. 853-857.)
Lastly, defendant contends the aggravating factors found by the court were improper and a dual use of facts and that imposition of the upper term was an abuse of discretion because his conduct was the result of his ingestion of hallucinogenic mushrooms. We disagree.
The trial court found four aggravating circumstances: (1) the victim was particularly vulnerable; (2) defendant exhibited a high degree of viciousness and callousness; (3) the crime involved a great monetary value; and (4) defendant is dangerous. The court found three mitigating circumstances: (1) defendant is “youthful at age 18”; (2) lack of a prior criminal record; and (3) defendant “was suffering from a mental condition not amounting to a defense, to wit, the use of the mushrooms.” Finding the aggravating factors outweighed those in mitigation, the court imposed the upper term. We conclude the court’s reliance on these factors was not an abuse of discretion.
Selection of the appropriate term is a matter within the broad discretion of the trial court. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) We affirm the trial court’s sentencing decision unless it was arbitrary or irrational. (Ibid.) Here, it was neither.
The victim was clearly vulnerable, being five feet six inches tall and weighing just 106 pounds, as compared to defendant being six feet three inches and 280 pounds. She was awakened just after 4:00 a.m. by defendant breaking into her home which was located in a remote area. The finding that defendant’s actions were callous and vicious is evidenced by the fact that defendant, by his own admission, “tackled” G. C. as if tackling a football player, slammed her into the wall and beat her in the head and face until she was rendered unconscious, then proceeded to browse around the kitchen and rest in G. C.’s bed while G. C., who was bleeding profusely and struggling to breathe, lay on the floor.
Defendant argues the finding that the crime involved great monetary value was an improper use of dual facts, as any medical costs arose out of the great bodily injury he inflicted on the victim. Section 245, subdivision (a)(1) belies that fact. To the contrary, G. C.’s testimony and statements submitted by neighbors who helped take care of G. C. and her dogs and cleaned up the destruction of her property following the attack support the fact that G. C. suffered significant monetary loss, both in medical costs and property damage.
Lastly, there is support for the finding that defendant was dangerous notwithstanding the fact that he may have been acting under the influence of hallucinogenic mushrooms. Defendant viciously tackled G. C. and, while repeatedly yelling, “‘I hate you,’” beat her with his fists until she passed out. That alone is sufficient to support the court’s finding of dangerousness.
Under these circumstances, the trial court did not abuse its discretion in concluding that these factors were sufficient to impose the upper term.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P. J., MORRISON, J.