Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA063538, Ronald S. Coen, Judge.
Jeffrey S. Kross, 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, Paul M. Roadarmel, Jr., Lawrence M. Daniels and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P.J.
Following his conviction by a jury for voluntary manslaughter (with a finding he had personally used a deadly weapon, a baseball bat, in committing the offense) and elder or dependent adult abuse resulting in death (with a finding the victim, his mother, was 65 years old), Erik Vandenandel was sentenced to an aggregated state prison term of 12 years. On appeal Vandenandel contends only that the trial court abused its discretion in imposing the upper term for the voluntary manslaughter conviction. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Charges
In an information filed May 26, 2009 Vandenandel was charged with one count of murder (Pen. Code, § 187, subd. (a)) with a special allegation he had personally used a deadly weapon, a baseball bat, in the commission of the offense (§ 12022, subd. (b)(1)) and one count of elder or dependent adult abuse resulting in death (§ 368, subd. (b)(1)) with an allegation the victim was 65 years old (§ 368, subd. (b)(3)). Vandenandel pleaded not guilty and denied the special allegations.
Statutory references are to the Penal Code.
2. Summary of the Evidence Presented at Trial
In a fit of rage Vandenandel, then 29 years old, killed his 65-year-old mother, Sheila Vandenandel, with a baseball bat. Witnesses for both the People and the defense, including Alys Heredia, Vandenandel’s former wife, testified that Sheila had been both physically and verbally abusive to Vandenandel for many years. The issue at trial was whether Vandenandel was guilty of murder or voluntary manslaughter.
a. The People’s evidence
Vandenandel and his mother lived in a mobile home park in Sylmar. Shannon Flynn, a friend of Vandenandel’s, lived in the same park. During the evening of January 20, 2009 Sheila Vandenandel called her son several times to tell him to return her cell phone. According to Flynn, Vandenandel, who was with Flynn and one of her other friends helping the friend move to a different mobile home park, seemed irritated by his mother’s calls and then became upset and angry with Flynn when she told her friend about the calls and Vandenandel’s reaction to his mother. Vandenandel walked away, but called Flynn some time later, expressed his negative feelings and hung up. Flynn did not answer subsequent calls from Vandenandel.
Flynn eventually answered a call from Vandenandel at 11:52 p.m. Flynn testified Vandenandel “was freaking out” and “very upset” and said he needed her, but would not tell Flynn what was wrong. Flynn, who had gone to her friend’s new home, drove back to her mobile home park and walked over to Vandenandel’s unit. Vandenandel, who was outside on the telephone, told her not to go inside. However, Flynn followed Vandenandel back into the mobile home and walked to his mother’s bedroom. She saw blood on the bed and Sheila Vandenandel’s body on the floor next to the bed. Vandenandel told Flynn to leave and shut the front door once she was outside.
Telephone records established Vandenandel used his mother’s cell phone to call the police emergency number at 1:05 a.m. and 1:07 a.m. on January 21, 2009. Los Angeles Police Officers Samuel Huizar and Brian Franco arrived at the mobile home park at 1:20 a.m. in response to a radio call for a burglary investigation. When they approached the Vandenandel home, they saw Flynn sitting outside and heard Vandenandel yelling at her to come back to him. Once the officers saw Vandenandel, they noticed his shirt had blood stains and thought they might be dealing with an incident of domestic violence. Vandenandel started screaming and crying and insisted his mother was inside the residence and needed an ambulance.
Officer Huizar entered the mobile home with Los Angeles Police Officers Sopro and Medina, who had also arrived at the scene. According to Huizar, the home was completely dark. Inside one bedroom he saw the victim’s body facing up; she did not move or seem to be breathing; her nose and face appeared to be swollen. On the floor Huizar also saw a small baseball bat with blood stains and additional blood stains on the floor itself, the bed and the bed sheets.
While the other officers searched the mobile home, Officer Franco asked Vandenandel what had happened. Vandenandel said he had come home, found all the doors open and saw two men leaving the mobile home. He could not describe the men, but said they were wearing dark-colored clothes. Los Angeles Police Detective Armando Acero arrived at the scene shortly thereafter, conducted an initial investigation and concluded the alleged burglary had been staged based on the location of the broken window glass and the partially removed window screen. Acero observed most of the blood was on the bed, and Sheila Vandenandel’s injuries were primarily to the head.
Vandenandel was arrested and taken to the police station. Prior to being questioned, he was advised of his right to remain silent, to the presence of an attorney, and, if indigent, to appointed counsel. (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602].) Vandenandel agreed to be interviewed by Los Angeles Police Detective Gene Parshall. Vandenandel initially blamed his mother’s death on the two burglars. However, he ultimately admitted he had killed his mother, explaining she had taunted him about his divorce from Heredia and hit him with her cane and then with a baseball bat during a confrontation in his room. After his mother returned to her room, Vandenandel approached her and asked her why she mistreated him. His mother resumed taunting and cursing him and again brandished the bat. As he began to walk away, she threw the bat at him. He picked it up, and Sheila Vandenandel picked up a wine bottle. Vandenandel said he snapped at this point and repeatedly hit his mother in the head with the bat while she was standing next to her bed. After she fell, he laid her on the bed and called the police emergency number. The dispatcher, he said, instructed him to put his mother on the floor to perform CPR. He admitted he had panicked after calling for assistance and broke the window to make it appear that the mobile home had been burglarized.
A recording of Vandenandel’s interview was played for the jury, and the jurors were each given a transcript.
Heredia and the couple’s older daughter had lived for several years in the mobile home with Vandenandel and his mother although there were periods of separation. In 2007, shortly after the birth of their second daughter, Vandenandel and Heredia separated permanently.
Dr. Vladimir Levicky, the deputy medical examiner who performed the autopsy, testified Sheila Vandenandel had several large lacerations on the right forehead and the back of the head and a large abrasion close to the right eye. She had been struck at least four times in the back of the head; her head injuries were consistent with blunt force trauma from an object such as a baseball bat. The victim had a 0.13 percent blood-alcohol level at the time of her death. Physical evidence collected at the crime scene and preserved for trial included a blood-stained baseball bat engraved with Vandenandel’s name, a blood-stained wine bottle and a walking cane, which had been found underneath the victim’s body.
b. The defense’s evidence
After his former wife testified about Sheila Vandenandel’s on-going verbal abuse of Vandenandel in her presence, Vandenandel testified on his own behalf, detailing the emotional, physical and sexual abuse that had been inflicted by his mother since he was a child. Vandenandel said he had twice attempted suicide as a teenager and abused both alcohol and drugs.
Describing the events surrounding the killing of his mother, Vandenandel explained he had borrowed his mother’s cell phone. She called several times during the evening of January 20, 2009, while he was with Flynn and one of her friends, asking him to return the phone. Vandenandel was unable to do so because Flynn, who had earlier promised him a ride, refused to drive him back to his home. Finally, around 11:00 p.m., he got a ride from another friend. Once home, Vandenandel returned the phone to his mother. An argument ensued, with his mother calling him demeaning names. Eventually, his mother came into his room, again insulted him, hit him with her cane and then threw video games at him. Vandenandel took the cane away, walked to his mother’s room and threw the cane on the floor. They continued to argue. Sheila Vandenandel then threw a bat at Vandenandel, which hit him in the back. He picked up the bat and struck his mother. Vandenandel did not remember how many times he hit his mother and also could not recall a number of other details of the incident, but insisted he did not intend to kill her. After the police were called, Vandenandel panicked and tried to make it appear there had been a burglary.
Dr. Nancy Kaser-Boyd, a clinical and forensic psychologist who was appointed to evaluate Vandenandel, opined Vandenandel had chronic and complex posttraumatic stress disorder, a diagnosis associated with victims of child abuse. She gave Vandenandel a “quite low score” of 35 of 100 on the global assessment of functioning.
3. The Verdict and Sentencing
The jury found Vandenandel not guilty of first and second degree murder but guilty of voluntary manslaughter, a lesser included offense, with a true finding he had personally used a deadly weapon. The jury also found Vandenandel guilty of elder abuse resulting in death, with a finding the victim was 65 years old.
The People submitted a sentencing memorandum urging the court to impose the upper term of 11 years for Vandenandel’s conviction for voluntary manslaughter plus a one-year enhancement for his use of a deadly weapon. The memorandum identified five aggravating factors: (1) the crime involved great violence, threat of great bodily harm and callousness (Cal. Rules of Court, rule 4.421(a)(1)); (2) Vandenandel used a weapon at the time of commission of the crime (Cal. Rules of Court, rule 4.421(a)(2)); (3) the victim was particularly vulnerable (Cal. Rules of Court, rule 4.421(a)(3)); (4) Vandenandel had planned the crime (Cal. Rules of Court, rule 4.421(a)(8); and (5) Vandenandel had engaged in violent conduct indicating a serious danger to society (Cal. Rules of Court, rule 4.421(b)(1)). The People asserted there were no circumstances in mitigation and acknowledged any sentence on the second conviction for elder abuse resulting in death must be stayed pursuant to section 654.
Although not mentioned in the People’s sentencing memorandum, Vandenandel’s use of a deadly weapon in committing voluntary manslaughter could not be used as both an aggravating factor and a sentencing enhancement on the same count. (See Cal. Rules of Court, rule 4.420(c) [“a fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so”].)
At the sentencing hearing the prosecutor argued the crime was particularly heinous and callous and called for the maximum sentence. Vandenandel’s counsel asked the court to impose the middle term of six years for voluntary manslaughter based on Vandenandel’s limited prior criminal record (two misdemeanor convictions) and “the jury’s verdict.” Counsel then stated, “I will submit unless the court wants to hear other factors”; the court replied, “I don’t need to, unless you wish”; and the matter was submitted.
Vandenandel was sentenced to an aggregate state prison term of 12 years, consisting of the upper term of 11 years for voluntary manslaughter plus one year for personally using a deadly weapon. Sentence for elder abuse resulting in death was stayed pursuant to section 654.
Observing that the middle term was no longer the presumptive sentence under California’s determinate sentencing law, the court explained its decision to impose the upper term of 11 years for manslaughter, “In determining the proper sentence in this matter, although I’m not bound by California Rules of Court, rules 4.421, circumstances in aggravation, and 4.423, circumstances in mitigation, I take these as guidance. I do find that the victim in this matter was at an extreme disadvantage. She could not walk unassisted, either by way o[f] cane or crutches. There is great evidence that I am clearly convinced that the victim was attacked while in bed either asleep or incapacitated to an extent that lying in wait appears to be an appropriate theory; however, the jury did convict [Vandenandel] of voluntary manslaughter. Based upon that, I do not find any reason other than what I have stated to impose anything less [than] the high term, which the court intends to do, the high term for the reasons I have stated.”
DISCUSSION
Section 193, subdivision (a), provides voluntary manslaughter is punishable by imprisonment in the state prison for three, six or 11 years. Section 1170, subdivision (b), in turn, vests the trial court with the discretion to select any of the possible three terms provided in the interests of justice: “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 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.”
Section 1170, subdivision (b), was amended in 2007 to satisfy the constitutional requirements articulated in Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856] and Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403]. (See Stats. 2007, ch. 3, § 2; People v. Towne (2008) 44 Cal.4th 63, 75, fn. 2 [“[i]n response to Cunningham, our Legislature amended the [determinate sentencing law], effective March 30, 2007”].)
The court expressly found the upper term for voluntary manslaughter was appropriate, concluding Vandenandel’s victim was “at an extreme disadvantage, ” an aggravating factor paralleling California Rules of Court, rule 4.421(a)(3) (“[t]he victim was particularly vulnerable”). The record certainly supports this finding: Sheila Vandenandel was 65 years old, had cancer and apparently used a cane or crutches to walk. (See People v. Sandoval (2007) 41 Cal.4th 825, 842 [classifying as “a clear-cut instance of victim vulnerability” when victim was “elderly, very young, or disabled, or otherwise obviously and indisputably vulnerable”].) Accordingly, the court’s imposition of the upper term was well within its broad discretion. (See Cal. Rules of Court, rule 4.420(b) [“In exercising his or her discretion in selecting one of the three authorized prison terms referred to in section 1170(b), the sentencing judge may consider circumstances in aggravation or mitigation [as provided in Cal. Rules of Court, rules 4.421 and 4.423] and any other factor reasonably related to the sentencing decision. The relevant circumstances may be obtained from the case record, the probation officer’s report, other reports and statements properly received, statements in aggravation or mitigation and any evidence introduced at the sentencing hearing.”].)
Contrary to Vandenandel’s argument, a fair reading of the transcript of the sentencing hearing demonstrates the court did not improperly base its sentencing decision on a finding Vandenandel had killed his mother in her bed after “lying in wait” for her. To be sure, the trial court appeared to agree with the prosecution’s view of the evidence, commenting, “There is great evidence that I am clearly convinced that the victim was attacked while in bed either asleep or incapacitated to an extent that lying in wait appears to be an appropriate theory.” But the court also plainly accepted defense counsel’s urging that it consider “the jury’s verdict” in imposing sentence-that is, that Vandenandel was found not guilty of murder-because it then immediately stated, “however, the jury did convict [Vandenandel] of voluntary manslaughter.” “Based upon that, ” the court continued, it imposed the upper term only because the victim was “at an extreme disadvantage, ” an entirely proper exercise of its discretion in this case.
To the extent there was any ambiguity in the trial court’s statement of reasons for imposing sentence, it was the obligation of Vandenandel’s counsel to object or request clarification. (See People v. Velasquez (2007) 152 Cal.App.4th 1503, 1511-1512 [failure to object to purported error in trial court’s statement of reasons for imposing sentence forfeits issue for appeal].)
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., JACKSON, J.