Opinion
E044759
9-5-2008
THE PEOPLE, Plaintiff and Respondent, v. JIMMY LEE SNELL, Defendant and Appellant.
Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner, Supervising Deputy Attorney General, and Jeffrey J. Koch, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published
Defendant and appellant Jimmy Lee Snell appeals from a sentence imposed following the revocation of his probation. He argues we should reverse his sentence and remand his case for resentencing because the trial court failed to state adequate reasons for imposing a middle term sentence.
FACTUAL AND PROCEDURAL BACKGROUND
Pursuant to a plea agreement, defendant pled guilty to one count of resisting an executive officer in violation of Penal Code section 69. Defendant was also charged with two misdemeanors: child abuse in violation of section 273a, subdivision (b), and battery in violation of section 243, subdivision (e)(1). However, these two charges were dismissed. All of these charges arose when a deputy was dispatched to defendants residence after a "9-1-1 hang-up call." The following circumstances of the offense are set forth in a probation report dated July 21, 2006: "[T]he deputy arrived at the residence and spoke to the victim at the front door. The victim told the deputy she was having a problem with her boyfriend, who was pushing her around in the apartment. The defendant . . . immediately stood up and came to the door and told the deputy, `We already told the police we dont need you guys out here and we dont need your help.
All further statutory references are to the Penal Code unless otherwise stated.
"The defendant was told to sit down so the deputy could speak to the victim. The defendant . . . became irate and started yelling and screaming. . . . The deputy asked the defendant to step outside so they could talk and calm down the defendant. When the defendant went outside the front door he was yelling, and flaring his arms up and down. At that time, the deputy asked the defendant to put his hands behind his back and put handcuffs on for both of their safety. The defendant was then patted down for weapons and asked what was going on. The defendant then told the deputy that he did not want to talk to the deputy and to just take him to jail. The deputy told the defendant to be quiet and again, asked him what was going on. The defendant then stated, `No. I dont fucking have to talk to you. Just take me to jail. Lets get this over with. Lets go right now.
"The defendant was then told that he could get some shoes since he was barefoot at that time. The defendant kicked the front door open and walked down the hallway to the bedroom to where his eighteen-month-old baby was standing in the hallway. The deputy observed the defendant kick his child in the upper thigh region knocking the baby against the wall and then onto the floor. The baby then cried and the deputy grabbed the defendant to control him and the defendant began to fight. [Defendant] pulled away from the deputy and slammed the deputy against the wall with his body weight. They continued to struggle until he was escorted out of the house.
"While they were on the patio of the apartment, the defendant pushed the deputy against the wall and at that time the deputy turned the defendant around and put her right arm around his neck and left hand on his arm and walked him down the stairs. The defendant continued to yell while inside the patrol car.
"The victim told the deputy that they had been in a fight earlier because all of the defendants friends were over and the victim began to yell and tell them all to leave. The defendant did not like it and grabbed her arm and pulled her into the room and was pushing her against the wall yelling at her telling her to `shut the fuck up and that his friends could stay if he wanted them to. . . . The victim did not sustain any injuries from the incident. [¶] . . . [¶]
"The deputy had sustained injuries to the neck, shoulder, right arm, and wrist and was transported to the emergency room and was treated and released with contusions to the neck and shoulder and a sprained right wrist."
In a statement to the probation officer, defendant said he "tried to step over his daughter but got out of balance and accidentally kicked his daughter with the foot he used to step over [her], and that made his daughter cry." Defendant denied hurting or slamming the deputy with his body.
On July 21, 2006, the sentencing court withheld judgment and granted defendant supervised probation for three years subject to various terms and conditions. On June 29, 2007, a petition was filed to revoke defendants probation for violating two of his conditions: failing to report to the probation officer once every 14 days or as directed (No. 3); and failing to make restitution payments (No. 14). On July 2, 2007, the court issued a bench warrant.
On October 22, 2007, an amended revocation petition was filed alleging three additional probation violations: violating the law (No. 2), possessing or controlling dangerous or deadly weapons (No. 8), and associating with known convicted felons (No. 10). The amended revocation petition further alleged defendant was arrested on October 3, 2007, when a gang enforcement team made a forced entry at a residence in Los Angeles that was under surveillance. The primary target of the surveillance was a parolee-at-large who was wanted for questioning in connection with two gang-related shootings. The primary target fled the residence through a rear window but was eventually caught and arrested. Defendant was arrested and taken into custody on the outstanding warrant after being found inside the residence. In addition, a gun was found hidden inside the residence. Defendant told the probation officer he did not know the gun was inside the residence. He also said the parolee-at-large was his cousin, and he knew his cousin was on parole but did not realize the condition against associating with known convicted felons included relatives.
On November 2, 2007, defendant admitted violating his probation by failing to report to the probation officer once every 14 days or as directed (No. 3), associating with a known convicted felon (No. 10), and failing to make restitution payments (No. 14). The court then sentenced defendant to the middle term of two years in state prison.
DISCUSSION
Citing section 1170, defendant contends the trial court was required to state specific reasons on the record for imposing the middle term but failed to do so. He believes the record shows there are no aggravating factors and one mitigating factor that could have justified a more lenient sentence. Defendant further claims the trial court would have reinstated probation or imposed the lower term if his counsel objected to the middle term and requested a more complete statement of reasons for the sentence imposed. As a result, defendant contends we should remand the case to the trial court for resentencing.
In pertinent part, section 1170, subdivision (b), states as follows: "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. . . . The court shall select the term which, in the courts discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected . . . ." In addition, section 1170, subdivision (c), provides that the trial court "shall state the reasons for its sentence choice on the record at the time of sentencing." "[T]he judge must state in simple language the primary factor or factors that support the exercise of discretion . . . ." (Cal. Rules of Court, rule 4.406(a).) The reasons "must be delivered orally on the record." (Ibid.)
Pursuant to California Rules of Court, aggravating factors to be considered when evaluating whether probation is appropriate include "[t]he vulnerability of the victim" and "[t]he likelihood that if not imprisoned the defendant will be a danger to others." (Cal. Rules of Court, rule 4.414(a)(3), (4).) Aggravating factors which may be considered in selecting an upper, middle, or lower prison term include the vulnerability of the victim and whether the defendant "has engaged in violent conduct that indicates a serious danger to society." (Cal. Rules of Court, rule 4.421(a)(3), (b)(1).) Only a single aggravating factor is necessary to make it lawful for the trial court to impose an aggravated prison term. (See § 1170, subd. (b); People v. Black (2007) 41 Cal.4th 799, 815, citing People v. Osband (1996) 13 Cal.4th 622, 728.)
"Sentencing choices such as the one at issue here, whether to reinstate probation or sentence a defendant to prison, are reviewed for abuse of discretion. `A denial or a grant of probation generally rests within the broad discretion of the trial court and will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner. [Citation.] A court abuses its discretion `whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.] We will not interfere with the trial courts exercise of discretion `when it has considered all facts bearing on the offense and the defendant to be sentenced. [Citation.]" (People v. Downey (2000) 82 Cal.App.4th 899, 909-910.)
Here, the probation officer prepared a supplemental probation report for the courts consideration at the sentencing hearing on November 2, 2007. The supplemental report contains details about the circumstances of defendants arrest on the outstanding bench warrant, as well as the facts supporting the alleged probation violations. Based on this information, the probation officer recommended termination of probation and an aggravated prison term of three years. At the sentencing hearing, defense counsel disputed a number of statements made in the probation officers supplemental report. He then referred to the original probation report, dated July 21, 2006, and asked the court to reinstate defendants probation based on the circumstances existing at the time of the original report. He argued defendant deserved another chance on probation, or, alternatively, the low term of 16 months, because there were no circumstances in aggravation and defendant had no prior record when he was originally granted probation. In response, the prosecutor argued the three-year aggravated term recommended by the probation officer was appropriate.
Citing the factual circumstances of the original charges as described in the original probation report dated July 21, 2006, the trial court decided it was appropriate to impose the middle term rather than to reinstate probation or to impose a mitigated term. In pertinent part, the trial court stated as follows: "I have reviewed the original probation report and the circumstances that were alleged. [Defendant] was accused of both a [section] 69 and a [section] 273[a, subdivision (b)], allegedly having kicked his 18 month old child in the thigh at the time that he was arrested for this offense. That charge, of course, was dismissed in exchange for the plea. I understand everyones arguments, and I believe that the probation officer was frustrated in the analysis in talking to [defendant]. I think that thats the reason why the probation officer recommends the aggravated term, but Ive indicated before, I personally think that that is uncalled for in this case, but I also think its uncalled for to give him either the mitigated term or to reinstate probation. Its my intention to sentence him to the midterm."
Although it is true the trial courts reasoning could have been articulated more clearly, we cannot agree with defendants contention that the trial court failed to state adequate reasons for imposing the middle term on the record during defendants sentencing hearing. We also disagree with defendants contention the record demonstrates that there were no aggravating factors to support a middle term. The trial court clearly cited the circumstances of the offense as its reason for imposing the middle term rather than reinstating probation or imposing the low term. As the trial court stated on the record, the resisting arrest incident also involved a violent act toward an 18-month-old child. In other words, defendant pled guilty to resisting arrest, but the circumstances of the offense involved more than violence toward the officer, who was injured while trying to defuse a highly charged domestic dispute. Small children are, of course, particularly vulnerable to violent conduct by adults. In our view, the trial court properly considered this as an aggravating factor in light of the California Rules of Court, rules 4.414 and 4.421. Having found the aggravating factor of violent conduct toward a vulnerable victim, it is apparent the trial court properly balanced this fact with the only mitigating factor—no prior record of criminal conduct—to reach its conclusion that reinstatement of probation was not appropriate and to impose the middle term of two years in state prison.
The People argue defendant forfeited any claim of error by the trial court in failing to state a reason for imposing the middle term since he did not make a specific objection on this ground during his sentencing hearing. Because we conclude the trial court did state its reason for imposing the middle term on the record, it is unnecessary for us to address this issue.
Defendants reliance on In re Spears (1984) 157 Cal.App.3d 1203, is misplaced. The facts at issue in Spears are easily distinguished. The record in Spears included statements by the trial court that strongly suggested it exercised its sentencing discretion in reliance on an impermissible factor. (Id. at pp. 1212-1213.) Here, there is nothing in the record suggesting the trial court relied on an impermissible factor. The record in Spears also included a number of aggravating and mitigating circumstances that should have been considered, but it was impossible to tell which, if any, of these factors influenced the courts decision. In addition, there were a number of mitigating factors that could arguably have resulted in a lower sentence. (Id. at p. 1213.) In this case, the trial court unquestionably relied on a factually specific aggravating factor.
We also reject defendants argument that his counsel did not effectively object when the trial court imposed the middle term. Even if defendant could establish deficient performance by counsel in failing to object when the trial court imposed the middle term, a remand for resentencing would not be necessary unless we could conclude the trial court would have imposed a more favorable sentence. (People v. Alvarado (2001) 87 Cal.App.4th 178, 194-195.)
Here, defendants counsel did argue reinstatement of probation or the low term was appropriate because defendant had no prior record at the time probation was granted. However, the court rejected this argument. In addition, we note there are other facts in the record which weigh in favor of the middle term. Defendants girlfriend, who called 911 during the dispute, told the officer defendant grabbed her arm, pulled her into a room, and pushed her against a wall during an argument. Fortunately, the officer was able to defuse the circumstances and defendants girlfriend and the child were not seriously injured. However, the fact remains defendant displayed violent conduct toward three different individuals during a single incident. One of these individuals was a "particularly vulnerable," small child. Although the police officers injuries were not severe or permanent, they were serious enough to warrant a visit to the emergency room for medical treatment. Thus, the record strongly supports a conclusion defendant is a "serious danger to society." (Cal. Rules of Court, rule 4.421(b)(1).) Moreover, the probation officer and the prosecutor both recommended an aggravated term, and an aggravated term was a reasonable possibility based on the circumstances of the offense. As a result, we cannot eliminate the probability it was a reasonable tactical decision for counsel not to make a strong objection when the trial court imposed the middle term. We therefore conclude there is no reasonable probability the trial court would have imposed a more favorable sentence if counsel objected more vigorously to the middle term and/or requested a more complete statement of reasons for the sentence imposed.
DISPOSITION
The judgment is affirmed.
We concur:
HOLLENHORST, J.
GAUT, J.