Opinion
D039670.
7-3-2003
THE PEOPLE, Plaintiff and Respondent, v. HAROLD MARTIN LEWIS, Defendant and Appellant.
Harold Martin Lewis was charged with two counts of attempted premeditated murder. (Pen. Code, §§ 187, subd. (a), 189, 664.) As to count two, the jury convicted appellant of attempted voluntary manslaughter ( § 192, subd. (a), 664) and found he personally used a semi-automatic handgun (§ 12022.5, subd (a)(1)). The court declared a mistrial on count one after the jury was unable to reach a verdict. Appellant subsequently pled guilty to attempted voluntary manslaughter ( § 192, subd. (a), 664) and admitted he personally used a firearm ( § 12022.5, subd (a)(1)) and inflicted great bodily injury ( § 12022.7, subd. (e)). The court sentenced appellant to 22 years and 10 months in state prison as follows: On count one, the court imposed five years six months for attempted voluntary manslaughter, 10 years for personal firearm use, and five years for great bodily injury. On count two, the court imposed a consecutive one-year term for attempted voluntary manslaughter and one year four months for personal firearm use.
All further statutory references are to the Penal Code unless otherwise specified.
Appellant contends the court relied upon improper aggravating factors in sentencing him to the upper term for the crime and the enhancements in count one. We affirm.
STATEMENT OF FACTS
In 1969, appellant became a deputy sheriff with the San Diego County Sheriffs Department after attending the police academy. Appellant retired on disability in 1984 after he suffered a blood clot in his spine, had unsuccessful surgery, and fell down a flight of stairs. Following his retirement, appellant worked as a dispatcher and security guard but stopped working about 10 years before the trial. Because he retired as a sheriffs deputy in good standing, appellant was granted a permit to carry a concealed weapon and habitually carried a .22 caliber Beretta with him when he left his house.
After retiring from the Sheriffs Department, appellant became moody and depressed. Appellants depression eventually became so severe that he refused to socialize, would not talk to his wife, Patricia Lewis (Mrs. Lewis), and no longer wanted her around. He took a number of prescriptions for back pain.
In May 2000, Mrs. Lewis and Kirk Sanders became lovers. In December 2000, appellant filed for a separation. In February 2001, he moved from the couples condominium to his own apartment.
On March 28, Mrs. Lewis told appellant that Sanders would be staying with her that weekend. On Saturday March 31, Sanders and Mrs. Lewis left the condominium to have dinner with the Lewises son and his wife. About 8:00 p.m., neighbor Jennifer Herlevi saw appellant drive his red Cadillac through the cul de sac leading to the garage. Sanders and Mrs. Lewis returned about 8:30 p.m. to 9:00 p.m. and parked in one of the Lewises assigned spaces. They did not see appellants car, which was not in parked the other assigned space.
As Sanders and Mrs. Lewis approached the elevator, they heard appellant say, "Hi guys." Mrs. Lewis turned around and saw appellant holding a small gun pointed at her face. Appellant fired the gun and shot Mrs. Lewis in the left cheek. After she fell to the floor, appellant stood over her and pointed the gun at her. The gun clicked but did not fire.
Sanders rushed at appellant and tried to knock the gun out of his hand. Appellant pulled the trigger several times but the gun did not fire. As he backed away, appellant tried to clear the guns chamber by pulling on the slide. Sanders lunged at appellant, but missed and fell to the ground. Appellant fled across the garage. Neighbor Jeffrey Galizio saw appellants car driving out of the garage at a high rate of speed.
About 10:00 p.m. to 10:30 p.m. Sergeant Michael Hernandez went to appellants apartment. About 1:30 a.m., a tactical "SWAT" unit arrived. Because appellant did not respond to requests to leave the apartment, the SWAT team entered the apartment and found appellant unconscious. Paramedics treated appellant for an overdose and transported him to a hospital.
Police found a loaded .22-caliber semi-automatic Beretta handgun lying on the dresser in appellants bedroom. A bullet in the chamber appeared to have misfired, which prevented the next bullet in the magazine from loading. The bullet in the chamber had been struck by the firing pin at least seven times.
Mrs. Lewis underwent surgery to remove the bullet, which was lodged in the major chewing muscle. After Mrs. Lewis was released from the hospital, she required physical therapy to be able to open her mouth.
The court chose count one — the attempted voluntary manslaughter on Mrs. Lewis — as the principal count and sentenced appellant to the upper term for the crime as well as for the personal use and great bodily injury enhancements. The court explained its reasons for the sentence as follows: "Its just unbelievable to a person working in the criminal justice system as long as I have that a law enforcement officer, former law enforcement officer who was on patrol all those many years and going out on domestic violence calls and seeing the things that happen daily in [the] San Diego community would involve himself in such an egregious crime. Just extremely upsetting to think that of all the people in the community, that a former law enforcement officer would not have been able to control his emotions.
"And the reality that I am dealing with here is but for that gun misfiring, Im very confident that Mr. Sanders and Mrs. Lewis would be dead today. The fortuitous fact that that gun happened to misfire is the only thing that saved these two peoples lives.
"And I look at that fact, that undisputed testimony from the firearms expert that he attempted to fire that gun seven times right at the head of Mrs. Lewis and right at the body of Mr. Sanders repeatedly. Very difficult fact for me to get out of my mind, and very difficult fact for me to not find an extremely aggravating circumstance in this case.
"There are gun allegations, and there are mitigants and aggravants in a case. And when youre looking at whether thats an aggravating fact, the fact that he repeatedly tried to get that gun unloaded into her head is just something that keeps coming back to me as an extremely aggravating fact.
. . .
"When I looked at whether the middle term or the aggravated term would be appropriate, as I indicated, the only mitigant I find is the fact that Mr. Lewis has no prior record. But I do find the three aggravants to be in effect here.
"I find that the manner in which this crime was carried out did show substantial planning. Theres no doubt that he was waiting in that garage and came up from behind on these two victims while they were coming out of the car.
"I also find, as I indicated, that the attempt to fire the gun seven times is a substantial aggravant.
"And I do agree that when you are in a unique position of having years of law enforcement training, that you are held in a position of public trust, and that public trust was most certainly violated by these crimes."
DISCUSSION
Appellant contends the court relied upon improper aggravating factors in determining his sentence. Specifically, appellant contends his status as a former law enforcement officer was unrelated to any sentencing factor; consideration of the gun use as a factor in aggravation constituted impermissible dual use of facts; and evidence of planning could not be used as an aggravating factor because it was contrary to the jurys findings.
The trial court applies the preponderance of the evidence standard to determine whether an aggravating factor applies. (Cal. Rules of Court, rule 4.420, subd. (b); People v. Lewis (1991) 229 Cal. App. 3d 259, 264, 280 Cal. Rptr. 128.) We review the courts finding of an aggravating factor for substantial evidence. (People v. Gragg (1989) 216 Cal. App. 3d 32, 46, 264 Cal. Rptr. 765.) In determining the sufficiency of the evidence, we review the whole record in the light most favorable to those findings to determine whether it discloses "substantial evidence — that is, evidence that is reasonable, credible, and of solid value — " (People v. Rodriguez (1999) 20 Cal.4th 1, 11, 971 P.2d 618) that supports the courts findings under the preponderance of the evidence standard. (Gragg , p. 46.) We review the courts weighing of aggravating and mitigating factors for abuse of discretion. (People v. Myers (1983) 148 Cal. App. 3d 699, 704, 196 Cal. Rptr. 234.)
All further rule references are to the California Rules of Court unless otherwise specified.
Appellant contends the court erred by considering his status as a former law enforcement officer as an aggravating factor because his status was not rationally to the crime and did not support a finding of increased dangerousness. Under rule 4.421, subdivision (a)(11), taking "advantage of a position of trust or confidence to commit the offense" is an aggravating factor. The trial court found appellants actions violated the trust the public places in those who have worked in law enforcement. Substantial evidence supports the courts conclusion. Appellant had worked for 14 years as a deputy sheriff and it was only because of his status as a former peace officer that he was granted a permit to carry a concealed weapon.
We reject appellants further contention that a court cannot use a factor, such as his status as a former law enforcement officer, to increase the length of a defendants sentence unless that factor is relevant to a finding of increased dangerousness. He overlooks other objectives in sentencing, which include not only "protecting society" but also "punishing the defendant." (Rule 4.410, subds. (a), (b).)
Appellant next contends the court impermissibly used the same fact both to impose the personal gun use enhancement and to impose the upper term. Under rule 421, subdivision (a)(2), the court may consider as an aggravating factor that "the defendant was armed with or used a weapon at the time of the commission of the crime." Although a court may not use the same fact to both impose an enhancement and impose the upper term for the crime ( § 1170, subd. (b); Rule 4.421, subd. (c); People v. Coleman (1989) 48 Cal.3d 112, 164-165, 255 Cal. Rptr. 813, 768 P.2d 32), a defendants gun use may be used as both an enhancement and an aggravating factor when it goes "beyond the ordinary or normative usage of a weapon." (People v. Sandoval (1994) 30 Cal.App.4th 1288, 1301; see also Brown (2000) 83 Cal.App.4th 1037, 1046; People v. Douglas (1995) 36 Cal.App.4th 1681, 1691-1692.) In this case, appellants attempt to shoot Mrs. Lewis after he had seriously wounded her as well as appellants multiple attempts to shoot Sanders go beyond the ordinary use of a gun. For that reason, the court did not abuse its discretion by imposing a sentence for the personal use enhancement and considering the gun use as an aggravating factor.
We also reject appellants contention that the courts finding of substantial planning was contrary to the jurys express findings, in that the jury did not convict him of attempted premeditated murder. Under Rule 4.421, subdivision (a)(8), the court may consider as an aggravating factor that "the manner in which the crime was carried out indicates planning, sophistication, or professionalism." In this case, the court relied upon evidence that appellant waited in the garage for Mrs. Lewis and Sanders to come home and then accosted them from behind. There was also evidence that showed appellant hid his presence by not parking in his assigned spot. This evidence is sufficient, under the preponderance of the evidence standard, to show that appellant planned the attack on Mrs. Lewis.
DISPOSITION
The judgment is affirmed.
WE CONCUR: KREMER, P. J., and McDONALD, J.