Opinion
2d Crim. No. B229530
12-08-2011
THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS ROSAS VARGAS, Defendant and Appellant.
Leonard J. Klaif, 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, Michael C. Keller, Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Super. Ct. No. 2007032713
Ventura County
Nicholas Rosas Vargas appeals a judgment following his conviction of voluntary manslaughter (Pen. Code, § 192, subd. (a)), with a jury finding that he personally used a firearm in the commission of this offense. (§ 12022.5, subd. (d).) The court sentenced Vargas to an aggregate prison term of 21 years. We conclude, among other things, that: 1) the trial court did not abuse its discretion by imposing the upper term of 11 years for manslaughter; 2) it did not err by imposing a consecutive 10 year upper term for the firearm enhancement; and 3) by imposing these upper terms, the court did not contravene Vargas's constitutional right to a jury trial. We affirm.
All statutory references are to the Penal Code.
FACTS
Vargas started dating Tracy Vargas (Tracy) in 1991. They were eventually married and had three children. After their divorce, Tracy continued to visit Vargas and the children who lived at Vargas's residence.
On August 24, 2007, Tracy was at Vargas's home. Between 9:00 and 10:00 p.m., a neighbor heard Tracy yelling and using profane language. Around midnight, Vargas had an argument with Tracy. He grabbed a gun. Tracy saw it and told him, "[Y]ou ain't got the fuckin' balls to do it." Vargas shot her in the arm, paused and then fired three or four more shots.
Tracy died after bullets hit her head and torso. She was unarmed.
Vargas left the house, got into a truck and drove away at a "high rate of speed."
In a recorded phone call to a friend after the shooting, Vargas said he told Tracy he could not tolerate the way she had been talking about him. She responded by challenging him to use the gun. Vargas said, "[S]o I fuckin' shot her."
Laurie Todd, Tracy's friend, testified that in an earlier incident in the summer of 2007, Tracy told her that Vargas had "placed a gun to her head." In another incident, Todd noticed that Tracy's face was "swollen" and red. Tracy told her that Vargas hit her.
Lisa Cervantes, a hospital worker, testified Tracy was a coworker at the hospital between 2001 and 2003. On one occasion, she saw bruises and hand and finger marks on Tracy's neck. Tracy told her that Vargas tried to "choke her out."
In the defense case, Vargas testified that he had placed a gun in the garage because he was thinking about committing suicide. When the children were asleep, he would drink. On the morning of the shooting, he contacted Tracy because he needed her to babysit. When Tracy was in his house, she began "foul mouthing" him during a dispute about whether he should buy her a car. They began arguing and drinking alcohol. He became "depressed" and started "shotgunning" beers. Tracy degraded him and he felt "like shit."
Vargas said he grabbed the gun from the garage because he wanted to shoot himself. He came into the house with the gun and pointed it to his head. Tracy told him "not to be a pussy and do it." Vargas said he shot Tracy, but he did not know why and did not know how many shots he fired. He kept shooting "until the gun was not firing anymore."
Vargas said he never hit Tracy prior to the shooting, but Tracy had pushed, shoved, kicked and punched him on numerous occasions.
At the sentencing hearing, the trial court selected the upper sentencing terms for the voluntary manslaughter conviction and the firearm enhancement. It said the aggravating factors were the vicious and callous nature of the offense and the vulnerability of the victim.
DISCUSSION
Imposing the Upper Term for Manslaughter
Vargas contends the trial court abused its discretion by imposing the upper term of 11 years for manslaughter. We disagree.
"Voluntary manslaughter is punishable by imprisonment in the state prison for 3, 6, or 11 years." (§ 193, subd. (a).)
In imposing the upper term, the trial court said, "[T]his crime exhibits a great deal of viciousness and callousness, and a high degree of cruelty . . . ." "'[W]hen 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.'" (People v. Moberly (2009) 176 Cal.App.4th 1191, 1195-1196.) "[T]he existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term." (People v. Black (2007) 41 Cal.4th 799, 813.) An upper term may be imposed where the crime involved "a high degree of cruelty, viciousness or callousness on the part of the perpetrator." (People v. Nevill (1985) 167 Cal.App.3d 198, 206.) Facts supporting a finding for an upper term sentence in a voluntary manslaughter case may include the defendant's act of shooting an unarmed victim multiple times. (Ibid.)
Here Vargas's crime involved extreme and gratuitous violence. He fired multiple shots at Tracy hitting her in her arm, her torso and her head. Kristin Rogahn, a forensic scientist, testified that the first shot hit Tracy's arm. The last two were fired either while Tracy "was on the floor or shortly before she was on the floor." Rogahn opined that after the first shot Tracy was alive because her heart was still beating.
The trial court found that after firing the first shot, Vargas had an opportunity to reflect and cease firing the weapon. That finding is supported by the record. The prosecution presented evidence showing that there was "a two- to three-second pause" between the first shot and the next three to four shots.
The Attorney General notes that there was additional evidence to support a finding that the killing was done in a "callous, vicious, or cruel manner." This is shown by Vargas's state of mind. After the shooting, in a recorded phone call, Vargas gave a summary of what he did and the motive for the killing. He said he grabbed a gun and "told [Tracy] to fuckin' stop talkin' her shit and then she just fuckin' told me, you ain't got the fuckin' balls to do it, so I fuckin' shot her." He consequently used deadly force in response to language that offended him. The court reasonably could infer that this was a more aggravated crime than other voluntary manslaughter cases where, for example, the victim was violent or the defendant had no time to reflect before firing a second shot. The callous nature of the crime is shown by Vargas's words "so I fuckin' shot her."
In making sentencing determinations, the court may consider the probation report. (People v. Towne (2008) 44 Cal.4th 63, 85.) Here, the probation officer said, "[T]his crime appears more serious than others of the same type in that the defendant and victim's children were present in the house when he decided to shoot the victim multiple times." The probation report also reflects that Vargas "does not appear to be remorseful." The court reasonably could infer that he had a history of committing violent assaults on Tracy. There was no abuse of discretion.
Imposing a Consecutive 10-Year Term for the Firearm Enhancement
Vargas contends the trial court abused its discretion by imposing the upper term for the firearm enhancement. (§ 12202.5, subd. (a).) We disagree.
Section 12022.5, subdivision (a) provides, in relevant part, "[A]ny person who personally uses a firearm in the commission of a felony . . . shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years . . . ."
The trial court said, "As to the enhancement under 12022.5, . . . I impose the aggravated term of 10 years. And the aggravation is the result of the vulnerability of the victim, the fact that she was unarmed, and the evidence shows, she was intoxicated."
The California Rules of Court provide that in sentencing, "[c]ircumstances in aggravation include factors relating to the crime," and one of these factors is whether "[t]he victim was particularly vulnerable." (Cal. Rules of Court, rule 4.421(a)(3).)
Here the firing of multiple rounds from the firearm led to the death of the victim. Tracy was not armed. Police Officer Bernard Chase testified there were no weapons found near her body. Moreover, after being hit with the first shot, Tracy was in a particularly vulnerable position. She was bleeding and falling to the floor. She was not a threat to Vargas and "could not protect [herself] from defendant's action." (People v. Eades (1979) 95 Cal.App.3d 688, 690.) Scott Bernard, a paramedic, testified that when he came to the Vargas house, Tracy was dead and her body was in "a kneeling position in front of the TV." The assistant chief medical examiner testified that the downward path of some of the bullets is consistent with Vargas firing while Tracy was in a "crouched" position. Vargas concedes that Tracy "was intoxicated at the time of the killing." Firing multiple rounds at her in this condition meant that she "had essentially no means of protecting" herself. (Ibid.) These were aggravating factors that the trial court could properly consider in selecting an upper term. Vargas has not shown that the court erred.
Did the Trial Court Contravene Apprendi by Imposing the Upper Terms?
Vargas contends the discretion granted by state law for trial judges to select upper sentencing terms for manslaughter and the firearm enhancement contravenes his constitutional right to a jury trial under Apprendi v. New Jersey (2000) 530 U.S. 466. 490.
But there is no merit to this claim. Our Supreme Court has repeatedly rejected this contention. (People v. Black, supra, 41 Cal.4th at p. 813; People v. Sandoval (2007) 41 Cal.4th 825, 832, 839, 852.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
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GILBERT, P.J.
We concur:
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COFFEE, J.
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PERREN, J.
Jeffrey G. Bennett, Judge
Superior Court County of Los Angeles
Leonard J. Klaif, 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, Michael C. Keller, Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.