Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. TA089227, Gary E. Daigh, Judge.
Tara K. Hoveland, 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, Senior Assistant Attorney General, Jason C. Tran and David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
A jury convicted Joshua Allen Kane of carjacking, second degree robbery, possession of a firearm by a felon and two counts of resisting arrest and found true special allegations supporting firearm-use and criminal-street-gang enhancements. Kane was sentenced to an aggregate state prison term of 30 years to life. On Kane’s first appeal we concluded the evidence was insufficient to support the jury’s findings that each of the offenses had been committed for the benefit of a criminal street gang and remanded the matter for resentencing. (People v. Kane (Nov. 17, 2009, B208799) [nonpub. opn.].) On remand the trial court sentenced Kane to an aggregate state prison term of 21 years. Kane again appeals, arguing the court abused its discretion by imposing the upper term sentence (nine years) for carjacking. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The description of the evidence at trial is taken from our nonpublished opinion in Kane’s prior appeal. (People v. Kane[, B208799], supra.)
According to the evidence at trial, Kane walked up to Dejuan Wilson in the parking lot of the Del Amo Plaza Indoor Swap Meet in Compton, pulled out a gun, demanded that Wilson “give him all he got, ” took Wilson’s keys and cellular telephone from his belt and drove away in Wilson’s Dodge Neon. The crimes were captured on the market’s video cameras and the videotapes were played for the jury. The videotapes showed that, as Kane turned out of the parking lot in the Dodge Neon, two men ran up to the car, opened the doors and jumped in; then, the three men drove away together.
Several hours after the carjacking and robbery, two police officers, both in uniform and in a marked patrol car, saw the Dodge Neon. When the patrol car moved into the lane directly behind the Dodge Neon, the driver of the Dodge Neon sped away, accelerating at high speed through two stop signs before reaching a dead-end area in the Jordan Downs Housing Development, a stronghold of the Grape Street Crips, a criminal street gang. Three men ran from the car. The patrol officers apprehended Kane, who lived one block from where he was detained. The other two men who had fled the Dodge Neon during the chase were never found or identified. During his arrest, Kane swung his arms in an effort to break free from one officer, then jerked his body and kicked another officer as the officer was guiding him to the patrol car. Kane told the officers he did not want to go back to jail.
2. The Verdict and Original Sentence
The jury convicted Kane on each of the five counts charged in the information and found true the firearm-use and criminal-street-gang-enhancement allegations. Because the carjacking (count 1) was found to have been committed to benefit a criminal street gang, the court sentenced Kane on that count pursuant to Penal Code section 186.22, subdivision (b)(4)(B), to an indeterminate term of 15 years to life, plus 10 years for the personal use of a firearm pursuant to section 12022.53, subdivision (b). The sentence and related enhancements for robbery (count 2) were ordered to run concurrently with the indeterminate term for carjacking; consecutive terms on the remaining three counts were imposed, resulting in an aggregate state prison term of 30 years to life.
More precisely, the jury found the offense had been committed “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (Pen. Code, § 186.22, subd. (b).)
Statutory references are to the Penal Code.
3. Reversal of the Criminal Street Gang Enhancements and Remand for Resentencing
On Kane’s first appeal we held the evidence was insufficient to support the jury’s finding he had committed the crimes to benefit a criminal street gang, notwithstanding the undisputed fact that Kane was a member of Grape Street Crips. (See generally People v. Gardeley (1996) 14 Cal.4th 605, 623-624 [membership in a gang alone is not sufficient to establish a violation of § 186.22, subd. (b)].) We remanded for resentencing, noting the maximum aggregate determinate sentence Kane faced for the five substantive crimes and related firearm-use enhancements was 26 years four months, rather than the indeterminate 30-years-to-life sentence originally imposed by the trial court. (People v. Kane[, B208799], supra, fn.6.)
In their memorandum on resentencing, the People recalculated (properly) this maximum aggregate term as 25 years four months, plus an additional one year four months for the two offenses for which Kane had been on felony probation.
4. Sentencing on Remand
At the April 30, 2010 sentencing hearing following remand, the court stated it had read and considered the original probation report, prepared in February 2007; the People’s original sentencing memorandum, dated April 1, 2008; defense counsel’s original sentencing memorandum, dated May 28, 2008; and the People’s memorandum on resentencing, as well as the transcript of the first sentencing proceedings held on May 28, 2008. The 2008 defense memorandum had argued Kane suffers from abandonment (his father was shot and killed when Kane was five years old; Kane thereafter alternated living with his paternal grandparents and his mother, who had remarried), depression, attention deficit disorder and bipolar disorder and suggested his mental condition, although not amounting to a defense, affected his level of culpability. At the resentencing hearing, Kane’s counsel referred to the earlier memorandum and asked the court to consider the matters raised as circumstances in mitigation, suggesting Kane be granted probation or sentenced to the low term. The People, on the other hand, urged the court to impose consecutive sentences for the carjacking and robbery, rather than concurrent sentences as it had done originally.
The court rejected both counsel’s requests, imposing the high term for carjacking but ordering sentence on the robbery count (also the high term) to run concurrently with it. The court explained, “So he is going to get high term on count 1. I’ve considered again the mitigating factors about his upbringing and the things we argued before, but he is on two grants of probation. His record is terrible, as [the prosecutor] alluded to, starting as a juvenile, you know, attempted robbery, robbery, a gun, assault, and then he is on two adult felony probations in the cases I’ve mentioned. Those clearly outweigh any mitigation of his upbringing, which I don’t discount; but, as I said before, there are a lot of people who have had bad starts who don’t do what he did.”
The court sentenced Kane to aggregate state prison term of 21 years: the upper term of nine years for carjacking (§ 215, subds. (a), (b)), plus 10 years for the personal use of a firearm when committing the offense (§ 12022.53, subd. (b)); a concurrent term of five years (the upper term) for robbery (§§ 211, 213, subd. (a)(2)), plus 10 years for the personal use of a firearm (§ 12022.53, subd. (b)); and three consecutive terms of eight months each (one-third the middle term of 24 months) for possession of a firearm by a felon (§ 12021, subd. (a)(1)) and two counts of resisting an executive officer in the performance of his or her duty (§ 69).
CONTENTION
Kane contends the trial court abused its discretion in ignoring relevant mitigating factors and imposing the upper term for carjacking based solely on his recidivism.
DISCUSSION
As Kane acknowledges, even though his crimes were committed in February 2007, the trial court properly sentenced him under the amended version of section 1170, subdivision (b), which, effective March 30 2007, eliminated the requirement that the trial court impose the middle term absent factual findings warranting imposition of the upper or lower term. (See generally People v. Sandoval (2007) 41 Cal.4th 825, 843-845.) Section 1170, subdivision (b), now provides, “When 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.... In determining the appropriate term, the court may consider the record in the case, the probation officer’s report, other reports including reports received pursuant to Section 1203.03 and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing. The court shall select the term which, in the court’s discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected and the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law”
Even with this broad discretion under the amended sentencing scheme, however, the trial court’s decision is subject to review for abuse of discretion. “The trial court’s sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an ‘individualized consideration of the offense, the offender, and the public interest.’ [Citation.] As under the former scheme, 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.] A failure to exercise discretion also may constitute an abuse of discretion.” (People v. Sandoval, supra, 41 Cal.4th at pp. 847-848.)
The task of weighing aggravating and mitigating factors is singularly one for the trial court (People v. Calderon (1993) 20 Cal.App.4th 82, 87), and the burden of demonstrating the sentencing decision was arbitrary or irrational rests with the defendant. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 [“‘The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] 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.’”].) A sentencing 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.”’” (Id. at p. 978.)
No abuse of discretion occurred in this case. The court identified two significant aggravating factors: Kane had numerous sustained juvenile petitions and adult criminal convictions (see Cal. Rules of Court, rule 4.421(b)(2)) and was on probation at the time the offenses were committed (see Cal. Rules of Court, rule 4.421(b)(4)). In addition, the court imposed concurrent rather than consecutive sentences for the carjacking and robbery offenses. (See Cal. Rules of Court, rule 4.421(a)(7).) Any one of these factors is sufficient to justify imposition of the upper term. (People v. Quintanilla (2009) 170 Cal.App.4th 406, 413 [single factor in aggravation is sufficient to justify a sentencing choice]; People v. Brown (2000) 83 Cal.App.4th 1037, 1043 [same].)
Kane’s argument the trial court ignored relevant mitigating factors—his tumultuous upbringing and mental health issues—is misplaced. The court specifically acknowledged the information presented on behalf of Kane’s request for leniency and found it outweighed by his recidivism. That decision was neither arbitrary nor irrational. (See People v. Towne (2008) 44 Cal.4th 63, 75 [recidivism is “‘a traditional, if not the most traditional, basis for... increasing an offender’s sentence’”].)
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., ZELON, J.