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People v. Rouzan

California Court of Appeals, Second District, First Division
Feb 4, 2011
No. B216769 (Cal. Ct. App. Feb. 4, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County. Nos. MA041895, MA040416, Kathleen Blanchard, Judge.

William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.


JOHNSON, J.

Sylvester Rouzan appeals his conviction of one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), with a finding he personally inflicted great bodily injury (§ 12022.7, subd. (a)), and one count of disobeying a domestic relations court order (§ 273.6, subd. (a)). He contends the trial court erred in failing to give a unanimity instruction on the charge of disobeying a domestic relations court order, and in sentencing him to the middle term on his conviction for assault with a deadly weapon. We affirm.

All further statutory references are to the Penal Code unless otherwise indicated.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Prosecution Case.

1. Defendant’s Divorce from Cherry Rouzan.

On May 25, 2007, defendant’s former wife Cherry Rouzan filed for divorce. The couple had been married for 10 years and had three children (Sylvester, Amari, and Jasmine). Defendant and Cherry agreed they would share joint custody of the children, with defendant to have physical custody to permit the children to attend school. After filing for divorce, Cherry moved to Sherman Oaks, and defendant remained in Palmdale.

We refer to Cherry and the children by their first names in order to avoid confusion with defendant, who shares the same last name.

In June 2007, Cherry began dating Alan Grimes and told defendant she was doing so.

2. The July 4, 2007 Telephone Call.

On July 4, 2007 at 11:00 a.m. Cherry was at Grimes’s apartment when defendant called her on her cell phone. Defendant said to her, “‘you’re not to say a word. And if you do, I will hang up on you.’” Cherry said nothing, and defendant began to call her a bitch, whore, tramp, and told her that “‘when I catch you and that mother fucker, I’m going to kill you both.’” Defendant was very angry and kept repeating himself. Cherry motioned Grimes over, and he listened in on the phone call. Cherry hung up the phone when defendant finished his tirade.

Cherry was very afraid. She and Grimes went to Disneyland to watch fireworks. On the way home, defendant called her again and was yelling. Grimes overhead defendant saying he was going to kill them. Cherry hung up the phone immediately. After she spoke to some friends and Grimes about defendant’s conduct, Cherry learned she could get a restraining order against defendant.

On July 13, 2007, Cherry went to the Van Nuys Police Station and spoke to Officer Lisa Herman to apply for a restraining order. Cherry told Officer Herman that defendant had threatened her, and defendant had said, “‘If and when I catch you, I am going to kill you, bitch. Bitch, you walked out on me and our kids so now I’ve turned my back on you. When I catch you and your man, I’m going to beat the shit out of him, and I’m going to do everything in my power to kill that muther-fucker. If you attempt to call or see the kids, then I’m going to kill you, then you no longer have kids so try to have kids with your new man.’”

Cherry was unable to add Grimes to the restraining order she obtained, and was told he would need to get his own restraining order. Grimes did not get a restraining order for himself at the time because he had not met defendant. On July 16, 2007, Cherry obtained a restraining order that required defendant to stay 100 yards away from her, and provided that she and defendant would meet at the Santa Clarita Sheriff’s Department to exchange custody of the children.

This was the first of three separate restraining orders Cherry obtained against defendant. The restraining orders are not part of the record.

Shortly after she obtained the restraining order, defendant called her and said, “‘A restraining order, huh?’” and began chuckling. She told him she had nothing to say and hung up the phone.

3. The July 17, 2007 Incident at the Sheriff’s Department.

On July 17, 2007, Cherry and defendant conducted their first exchange of the children at the Sheriff’s station. At about 3:15 p.m., Cherry arrived with Grimes and parked in front of the entrance. Defendant pulled into the lot, and parked on the driver’s side of her car. Defendant got out of his car and went to the passenger’s side. Cherry panicked because defendant had been ordered to stay in his car. Defendant, who had left the children in his car, appeared angry.

Grimes said, “‘It’s okay, I’ll just talk to him.’” Grimes got out of Cherry’s car and said to defendant, “‘Whoa, ’... what’s the problem?’” Defendant said, “you the nigger, you the nigger” and “‘you’re too big for me, but I got something for you.’” Defendant had one hand behind his back like he had a weapon. Defendant ran around his car and went to the driver’s side and began to pull a chain.

Grimes had been a bodybuilder.

Cherry went into the Sheriff’s station and went to the front desk, where she asked for help. Sheriff’s deputies came outside with her. Defendant was swaying back and forth with his fists clenched and saying to Grimes, “‘you’re the other mother fucker.’”

The Sheriff’s deputies handcuffed defendant and told Cherry to take her children and leave. They pulled a chain out of defendant’s car that was six or seven inches long.

After the incident, by mutual agreement between Cherry and defendant, the restraining order was changed to provide that defendant’s mother would exchange the children with Cherry.

4. The September 15, 2007 Stabbing at the Soccer Game.

On September 15, 2007, pursuant to a court order in the dissolution proceedings, Cherry attended a soccer game for one of her children at a park in Palmdale with her two other children and Grimes. The night before, Cherry sent an email to defendant requesting him to sign some paperwork for their dissolution proceedings, but defendant responded he would not meet her anywhere to sign the paperwork because of the restraining order.

When Cherry arrived at the park, defendant’s car was already in the parking lot. She heard defendant’s mother Beverly Ross scream in a loud nasty voice, “‘Cherry.’” Grimes told her to keep going, and that they were “‘not here for trouble.’” Cherry did not park near defendant’s car. Beverly Ross came over, gave Jasmine her uniform, and Jasmine started to play soccer. Cherry saw defendant sitting next to the field wearing a straw hat with his mother, but Cherry stayed away from him and watched the game a distance from the soccer field.

Shortly thereafter, Cherry’s parents Troy and Maria Green, her sister Patricia Green, Patricia Green’s husband James Carmichael, and their three children came to the game. Cherry’s parents ignored her and went over and hugged and kissed defendant. They sat with him the entire game. Defendant’s mother moved her chair so she was sitting right behind Cherry and Grimes.

When the game ended, Jasmine went with Beverly Ross to change out of her uniform. The other members of Cherry’s family walked towards defendant’s car. Cherry and Grimes walked towards Cherry’s car. Cherry’s two sons asked if they could say goodbye to their father, and she told them to do so and that she would be waiting at her car.

Cherry and Grimes heard defendant yell, “‘what’s up now, mother fucker.’” Defendant sounded angry, and Cherry ignored him and continued walking to her car. Grimes said, “‘Man, I don’t have time, ’” and waved his hand.

Pushing the children aside, defendant continued to approach them. Grimes told defendant “not to run up on [him], ” and defendant swung at Grimes with his fist closed. Cherry’s father Troy Green was coming towards Grimes and Cherry was concerned because her father was a hothead and had gotten into fights before. Cherry grabbed her father’s arm and said, “‘Daddy, please just stay over here. I don’t know what’s going on. Just stay here. You don’t need to get involved. You don’t need to get into any kind of trouble.’” Troy Green grabbed Grimes in a bear hug, and Grimes believed he was being restrained so defendant could hit him. Troy Green also hit Grimes several times. Grimes did not understand why they were hitting him because he had “no beef” with them. No one from Cherry’s family attempted to intervene.

Cherry wrestled with her father, and he threw her to the ground. She looked up and saw both her father and defendant were hitting Grimes. Defendant was swinging his arms in a hook motion towards Grimes. Cherry believed she saw a reflection coming from his hand. She asked her mother for help, and Cherry’s mother said, “‘That’s what they came up to do, so let them.’”

Grimes saw that defendant was holding a knife that he had been hiding in his hands. Grimes saw blood on his own shirt, and started coughing. Blood came out of Grimes’s mouth and from a wound to his neck.

Suddenly, defendant looked backwards, and skipped with a huge smile on his face. Cherry looked at Grimes, and discovered he had a hole in his neck. Grimes said, “‘Let’s just go. I can’t believe he did this.’” Cherry asked defendant what he had done, and defendant responded, “‘Bitch, I did it. I fucken told you I was going to do it, and I did that shit.’” Neither defendant nor Cherry’s parents called the police. They drove off, and Grimes, who was bleeding profusely, called paramedics. They stopped, and after the police arrived Cherry fainted twice.

Grimes had four stab wounds, one to his neck and three to his chest. He required surgery, and has extensive scarring and numbness under his chin as a result of the attack.

Deputy Sheriff Jason Jones received a call regarding an assault with a deadly weapon. He responded to defendant’s residence in Palmdale, but defendant was not home. After receiving consent from defendant’s mother, a search of defendant’s house yielded a 12-gauge shotgun and copies of the restraining orders served on defendant. One of the restraining orders contained a condition that defendant was not to possess any firearm.

Later Cherry learned defendant was arrested for the knife attack on Grimes, but was released on bail. He called her on her cell phone, but she refused to answer. He left a message saying he was at the Santa Clarita Sheriff’s station with the children, and if she did not come to meet him, he would come see her.

Cherry obtained physical custody of the children in family court, but Beverly Ross would not release them to her. On October 5, 2007, Cherry obtained a new restraining order which included Grimes and the children as protected parties. The order required defendant to stay away from the protected persons and not to harass or call them. Defendant was served with a copy of the restraining order.

In August 2007, Cherry was in family court for a hearing with Grimes, and defendant made a gesture at her with his thumb towards Cherry’s throat. She and Grimes informed the judge, and the judge advised defendant he could not make such gestures towards Cherry and Grimes.

5. The January 18, 2008 Criminal Protective Order.

Defendant’s preliminary hearing was held January 18, 2008. Cherry obtained a criminal protective order ordering defendant not to harass or attack her, Grimes, or the children.

6. The March 22, 2008 Threats.

On March 22, 2008, Amari was at defendant’s home for a birthday party. The other two children were also there. Defendant’s mother returned the children to Cherry at the custody exchange. Later, Amari told Cherry that at his birthday, defendant took Amari into the room and shut the door behind him. Defendant said, “‘I have something to tell you. I’m still going to come kill your mom and [Grimes].’” Cherry tried to comfort Amari and told him it would be okay, but Amari told her, “‘No, Mom, I know he’s not playing.’” Defendant had also told Sylvester on several occasions he would kill Cherry and Grimes.

Cherry called Grimes and the police. In April 2008, she spoke to Deputy Christopher Conley of the Sheriff’s department about defendant’s statements to Amari. Deputy Conley also interviewed Amari. On April 15, 2008, in family law court, the judge interviewed the children. Defendant’s bail was revoked and he was taken into custody.

Defendant was charged in an amended information with: count 1, assault with a deadly weapon (§ 245, subd. (a)(1) with an allegation of great bodily injury (§ 12022.7, subd. (a)) (the September 15, 2007 knife attack); counts 2 and 3, criminal threats (§ 422), (as pleaded based on the July 4, 2007 phone calls); count 4, attempted murder (§§664, 187), with a special allegation of great bodily injury (the September 15, 2007 knife attack); Counts 5 and 6, criminal threats (§ 422) with special allegations the offense occurred while defendant was released on bail (§ 12022.1); and count 7, violation of a domestic relations order (§ 273.6, subd. (a)) (as pleaded based on the March 22, 2008 threats).

B. Defense Case.

Cherry invited Troy Green to the game, which Green believed was unusual because she had not invited him to any of his grandchildren’s games before. Green drove to the game with his wife Maria. Green had been instructed by his daughter Patricia to park at a different end of the parking lot than where Cherry parked. When they got to the game, Maria parked next to Cherry’s Escalade, but after the game was over, he told Maria to move the car. He did not want any contact with Cherry, and he did not want to meet Grimes.

Troy Green saw defendant at the game, and went over and shook his hand. He had not met Grimes before, and ignored Cherry.

After the game he walked back to the parking lot with Maria and defendant. They were near the entrance of the lot, and Maria went to the other end of the parking lot to get their car. His wife brought the car over to where Troy Green was waiting with defendant. Cherry was still on the soccer field. He heard yelling, and saw Grimes pointing and shouting at defendant. Grimes yelled, “‘I’m going to break your fucking neck.’” Defendant did not say anything. Grimes walked across the parking lot, dragging Cherry behind like a “rag doll.” Cherry was telling Grimes to stop.

Troy Green believed he could stop the situation from developing, so he began to yell at Grimes, “‘this is not the time, it’s not the place and it’s not going to happen.’” Patricia Green and Cherry approached them. Cherry said, “‘Daddy, you get out of the way and let them handle it.’” His daughters pushed him out of the way and held onto him, saying “‘Well, Daddy, just let it be. Let it happen. We don’t want you to be involved.’” Grimes had his hands around defendant’s neck. Defendant was attempting to defend himself and was swinging his arms.

Troy Green broke up the fight by pushing Grimes away. Grimes asked Troy Green “why did this happen?” Troy Green and defendant got in Green’s car, and they left. Troy Green never saw a knife on defendant.

Troy Green had a close relationship with defendant.

Beverly Ross, defendant’s mother, testified defendant met Cherry when she was in high school. Ross knew that defendant and Cherry were having marital problems, and was aware of the restraining order and that Cherry and defendant were not to be together. She was alarmed when she learned Cherry was coming to the soccer game, because Cherry had never come to a game before.

After the game was over, Ross saw Grimes and Cherry enter the parking lot. Grimes kept saying, “‘What’s up?’” Ross stood behind her car to dress Jasmine, and became aware Grimes and defendant were fighting. After someone broke up the fight, she went over to defendant and grabbed him by the back of the shirt. She did not see a weapon.

Defendant testified that after high school, he enlisted in the Army. He was in the military on active duty for four years and was honorably discharged. He looked upon Troy Green as a father figure.

When defendant met Cherry at the Santa Clarita Sheriff’s station, he was delivering the children to her. He had not met Grimes before that day. Grimes got out of the car. Defendant said to Grimes, “‘you look real familiar.’” Grimes said, “‘I’m him, I’m him’” and added that if defendant did not leave Cherry alone, Grimes would “‘break [defendant’s] mother fucking neck.’” Defendant took a fighting stance because Grimes was “huge.” After Cherry ran inside, some deputies came out of the station and separated them.

On July 4, 2007, Cherry called him and said she needed to speak to him. She wanted to have Jasmine for the weekend. Defendant said, “‘bitch, you have three kids, not one, whom you have not seen in almost three weeks or even talked to. No. You cannot just have Jasmine. As a matter of fact, you can’t have any of them. If you want to see your kids from this point forward, go through the courts.’” Defendant hung up the phone. Defendant denied threatening Cherry.

At the September 15, 2007 soccer game, after the game concluded, defendant went to the parking lot. He saw Grimes coming towards him saying, “‘I’m going to break his mother fucken neck.’” Defendant was concerned for his safety. He denied moving towards Grimes or swinging at him. Grimes grabbed defendant around the neck and started choking him. Defendant heard Patricia Green say, “‘Daddy, let them fight.’” Defendant had a toenail clipper attached to his keychain, and denied carrying a box cutter or a knife. Defendant did not see Grimes or Troy Green with any weapons. Defendant began to swing right and left in an attempt to free himself. After Grimes let go, the two men were hitting each other. Troy Green got between them, and his mother pulled on his shirt. Defendant got in the Greens’ car and left.

During the family law hearings, Grimes would say to defendant, “‘your time is coming.’” Defendant did not seek a restraining order because he believed taking himself “out of the equation” by having his mother participate in the custody exchanges would solve the problem. Defendant denied telling Amari he was going to kill Cherry.

C. Rebuttal.

Harold Craig Rhudy, a Senior Investigator with the Los Angeles District Attorney’s Office, interviewed Troy Green on July 16, 2008. Green told him that at the soccer game, defendant was upset because Cherry was there with Grimes. Green told Rhudy that he heard defendant say “‘[f]uck it. I’m tired of this shit, ’” and after defendant and Grimes started fighting, Green stepped in between the two men, hit Grimes, and pushed defendant away. Green did not see a weapon.

Before September 15, 2007, Cherry had seen several folding knives in the home she had shared with defendant. When she took possession of the home in June 2008, she found several in the house.

The jury convicted defendant on count 1, assault with a deadly weapon (§ 245, subd. (a)(1)), with a finding that defendant inflicted great bodily injury (§ 12022.7, subd. (a)). The jury also convicted defendant on count 7, disobeying a domestic relations order (§ 273.6, subd. (a)). The jury acquitted defendant of all other charged offenses, and deadlocked on the lesser included offense of attempted voluntary manslaughter on count 4 (§§ 664, 192, subd. (a)). The trial court sentenced defendant to the middle term of three years on count 1, and imposed a consecutive three-year term on the section 12022.7, subdivision (a) enhancement on that count. The court imposed a consecutive one-year term on count 7, and on the motion of the prosecution, dismissed count 4.

DISCUSSION

I. UNANIMITY INSTRUCTION.

Defendant contends the court erred in failing to give a unanimity instruction on count 7, which charged him with a violation of a domestic relations order (§ 273.6, subd. (a)). He contends that in addition to unanimity that he committed a specific act, the jury had to unanimously find he violated a specific restraining order in committing a specific act. The prosecution contends such unanimity was not required because once the jury agreed on the specific act, the theory each individual juror used to convict need not be the same; and in any event, the error was not prejudicial beyond a reasonable doubt because the evidence shows that defendant admitted he violated the July 16, 2007 restraining order by possessing the shotgun found in his home after the September stabbing incident. We conclude the trial correctly instructed on unanimity in this case.

A. Factual Background.

At the conclusion of its case in chief, the prosecution moved to amend count 7 to conform to proof by adding additional factual allegations of several possible violations of domestic relations orders. The court noted only one count of violating one of the specific domestic relations orders issued against defendant had been alleged, and stated, “So if you want the one count of disobeying a domestic relations court order without specifying which one and you’d like a unanimity instruction, I’m willing to do that.” The prosecution stated it would amend the language to refer to domestic relations orders in the plural number, and the court said it would give a unanimity instruction, observing, “I don’t think the defendant can be convicted of this violation unless the jury can unanimously agree on one of any of the protective orders.”

The court instructed the jury on count 7 that a violation of section 273.6, subdivision (a) that to prove defendant was guilty of a violation, the prosecution needed to establish that defendant violated a protective order, and he did so knowingly and intentionally. The court gave CALJIC No. 17.01, which required the jury to agree that defendant committed the same act or acts.

In making argument to the jury, the prosecution relied on the three different domestic relations orders Cherry obtained: July 2007, September 2007, and October 2008. The prosecution argued with respect to count 7, “Now I’m not going to get into a lot of detail about this, but the basic points to remember are this: First of all, the defendant knew the terms of the restraining order and he knew the terms of the protective order from the criminal case. There were several violations that he either admitted to or were testified to by witnesses. We know that, number one, the gun was found in the house. We know, number two, that he threatened Cherry Rouzan and Alan Grimes after the protective order was served on him on the prelim date of January 18, 2008. And if you remember, Cherry Rouzan again reported that to the police.... [¶] You also have a violation on the date of the Santa Clarita, the first child exchange. If you remember, if you look at the restraining orders, it says that there is to be peaceful contact. Defendant’s actions on that date of July 13, 2007, was not a peaceful contact with Cherry Rouzan and Mr. Alan Grimes. You also have in August 2007, Cherry Rouzan is in court with Alan Grimes. Defendant’s sitting on the other side of the courtroom, and what does he do? He makes a threatening gesture at Mr. Grimes, basically a stabbing motion towards his neck.”

The verdict form for count 7 contained a typographical error and should have read “‘on or between July 16, 2007, and March 22, 2008.’” During deliberations, the jury requested the court to “clarify if a violation on 9/15/07 applies to count #7 even though there is a date of March 22, 2008 on the charge”; and asked, “Does count #7 apply to everything that occurred from Aug. 2007–March 2008, inclusive?” The court clarified the dates and gave the jury a corrected verdict form.

During deliberations, the jury sent a note to the court requesting that both counsel, during the re-opening of closing argument, tailor it to counts 5, 6 and 7 (criminal threats and violation of the domestic relations order). With respect to count 7, the prosecution advised the jury they had civil and criminal protective orders and that the restrained person in the orders was defendant, not the victims Cherry or Grimes. Further, defendant had received copies of the orders and admitted at trial he had received them. The protective orders prohibited defendant from having firearms, but on the day of the September 15, 2007 attack on Grimes, the deputy sheriff who went to defendant’s house found a firearm. The prosecution also referenced the threats defendant made on March 22, 2008 and advised the jury that “there [were] many violations” of the protective orders, and that “[t]he judge read you an instruction in regards to finding the defendant guilty even though there may be various violations. You as jurors can decide which violation the defendant violated. You may feel it was only one, the fact that he threatened Cherry Rouzan and Alan Grimes, or you may feel, no, it was when he had the firearm, the rifle, in the home.”

B. Discussion.

A defendant has the right to a unanimous jury verdict. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) The standard unanimity instruction, CALJIC No. 17.01, generally should be given when a defendant committed multiple acts, which could have been charged as separate offenses but were not, and the jurors could disagree as to which act defendant committed but still convict him of the crime charged. (People v. Beardslee (1991) 53 Cal.3d 68, 92, 93.) In order for the defendant to be convicted of the charge, the jury must agree that the defendant committed the same act. (People v. Davis (1992) 8 Cal.App.4th 28, 32 (Davis).) The requirement of unanimity eliminates the danger that the defendant will be convicted where there is no single offense all of the jurors agree the defendant committed. (People v. Norman (2007) 157 Cal.App.4th 460, 464.) The unanimity instruction prevents the jury from amalgamating offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude the defendant did something sufficient to convict on one count. (Id. at p. 465.)

There is a split of authority on whether the standard of prejudicial error is the Chapman or Watson standard. People v. Smith (2005) 132 Cal.App.4th 1537, 1545–1546 and People v. Wolfe (2003) 114 Cal.App.4th 177, 185–188 held that the failure to give a unanimity instruction has the effect of lowering the prosecution’s burden to prove a defendant’s guilt beyond a reasonable doubt under California law and therefore violates the defendant’s federal constitutional right to due process of law. We agree that the proper standard of prejudice is the more stringent Chapman standard, requiring the People to show the error is harmless beyond a reasonable doubt.

Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].

People v. Watson (1956) 46 Cal.2d 818, 836.

Here, different protective orders do not represent different legal theories. Rather, the jury was instructed to find that they must agree on the same act or acts defendant committed that violated a protective order. In agreeing on the same act or acts that defendant committed, because of the instruction given defining the section 273.6 offense (knowing and intentional violation of a protective order), the jury necessarily had to agree on which protective order or orders defendant violated if they agreed on the violative act committed. Thus, no unanimity instruction beyond that already given, namely, agreement on defendant’s act or acts, was required.

Furthermore, any error is harmless beyond a reasonable doubt. Here, defendant admitted at trial that he owned the shotgun found in his house on September 15, 2007; he therefore expressly admitted he violated the terms of the restraining order issued in the family law court on July 16, 2007, which prohibited him from owning a firearm. No reasonable juror could have doubted defendant’s own admission, and thus any error was harmless beyond a reasonable doubt.

II. SENTENCE OF MIDDLE TERM ON COUNT 1.

Defendant argues the trial court abused its discretion in imposing the middle term on count 1 (assault with a deadly weapon in violation of section 245, subdivision (a)(1)) because in doing so, it made an impermissible dual use of facts in basing the sentence on infliction of great bodily harm, which also formed the basis of enhancement under section 12022.7, subdivision (a) on the same count. He further argues that even if we were to find the trial court properly relied on the separate facts of callousness, viciousness and degree of cruelty of the crime, because those facts were not found by a jury, the court’s use of them violated Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). Finally, he contends the court overlooked factors in mitigation. Respondent contends defendant forfeited any claim of error by failing to raise the issue at the sentencing hearing, the court did not abuse its discretion because the court relied on the separate facts of callousness, viciousness and degree of cruelty of the crime, and there was no Cunningham violation because under the amended version of section 1170, subdivision (b), applicable to defendant here, additional factual findings are no longer necessary to impose an upper or lower term. (Stats. 2007, ch. 3, § 3; People v. Sandoval (2007) 41 Cal.4th 825, 844 (Sandoval).)

At trial, after stating it had read defendant’s sentencing memorandum, the court sentenced defendant to the middle term of three years. The court stated that it found a mitigating factor in defendant’s lack of a prior record, and in aggravation, found that in addition to the fact the crime involved great bodily injury, the court also found that it involved acts disclosing a high degree of cruelty, viciousness, or callousness. The court balanced these factors in aggravation and in mitigation, and imposed the midterm of three years on count one. Defendant did not object.

We conclude defendant forfeited his sentencing arguments by failing to raise them in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 356.)

DISPOSITION

The judgment of the superior court is affirmed.

We concur: MALLANO, P. J. CHANEY, J.


Summaries of

People v. Rouzan

California Court of Appeals, Second District, First Division
Feb 4, 2011
No. B216769 (Cal. Ct. App. Feb. 4, 2011)
Case details for

People v. Rouzan

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. SYLVESTER ROUZAN, Defendant and…

Court:California Court of Appeals, Second District, First Division

Date published: Feb 4, 2011

Citations

No. B216769 (Cal. Ct. App. Feb. 4, 2011)