P. v. Tu

Filed 11/29/05 P. v. Tu CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, v. VINCENT TU, Defendant and Appellant.

A105905 (San Francisco County Super. Ct. Nos. 182774, 183407-3)

In February 2002 appellant Vincent Tu entered a negotiated disposition pursuant to which he pleaded guilty to voluntary manslaughter and attempted second degree murder, with admission of related personal use of firearm allegations for each count, as well as conspiracy to obstruct justice, and agreed to additional terms. He later moved unsuccessfully to withdraw his plea. Thereafter the court entered sentence, as follows: (1) an upper 11-year term for voluntary manslaughter; (2) a consecutive upper 10-year term for the related personal use of a firearm allegation; (3) a consecutive two-year, four-month term (one-third of middle) for attempted murder; (4) a consecutive one-year, four-month term (one third of middle) for the related firearm allegation; and (5) a consecutive eight-month term (one-third of middle) for conspiring to obstruct justice, for a total sentence of 25 years 4 months. Appellant challenges the sentence on numerous fronts, and also claims he was not given the benefit of his plea bargain, in violation of his due process rights. We affirm.

I. FACTUAL BACKGROUND

The probation report provided the following summary of the offenses:

A. February 2001 Incidents

At 1:08 a.m. on February 24, 2001, reporting police officers arrived at 1700 Post Street in regard to a report of gunshots fired. They saw a group of approximately 20 persons in the plaza area to the east of 1700 Post Street. An Asian male was lying on his back on the ground, surrounded by several persons screaming that someone had been shot. The police requested an ambulance.

An off-duty firefighter was at the scene. He told an officer that he was not able to find a pulse, and started chest compressions on the victim. One of the officers saw a bullet hole in the right chest area and another bullet hole in the right back area. The paramedic arrived moments later and pronounced the victim dead.

A possible second gunshot victim was broadcast at Webster and Eddy Streets. Police found the victim, Benjamin Vanderhule, sitting in the passenger seat of a vehicle with a gunshot wound to his right rear shoulder. The victim stated he had been shot in the area of 1700 Post Street.

At Northern Station a witness told the police that he had been with the victim, identifying him as Kenneth Haramoto of San Francisco, born June 12, 1979.

At 1:20 a.m. on July 6, 2001, officers responded to a report from an Oakland Police Department dispatcher of a felony wanted vehicle located in a garage at 744 Potrero Street. The vehicle was wanted in connection with a homicide. After police announced themselves, many individuals began to exit the residence. Vincent Tu appeared and was taken into custody.

B. August 1999 Incidents

On August 12, 1999 at 2:36 a.m., officers responded to Webster and Geary Streets on the report of gunshots fired. They saw an Asian male lying on the ground next to the rear stairway of the Japan Center. The victim was unconscious, with a large amount of blood coming from his head. The victim, later identified as Dung Quan, was pronounced dead after being transported to a hospital.

From the police investigation it was learned that a witness saw two unknown males running down Fillmore Street and then crossing Geary. The males entered a white Honda and drove away.

According to another incident report, at 2:50 a.m. the same day, police responded to San Francisco General Hospital regarding a stabbing. Codefendant Darius Wong stated that he had been approached by two men at Webster and Post Streets. One of them produced a knife and said, “Give me your money.” Wong reportedly said, “No,” and was stabbed in the lower left side of his chest. Wong said three friends drove him to the hospital in his car, but he could not remember their names.

C. Trial Court Proceedings

Appellant was charged under two grand jury felony indictments returned in 2001. Indictment No. 182774 accused appellant of the first degree murder of Kenneth Haramoto; attempted murder of Benjamin Vanderhule; and assault upon Vanderhule with a semiautomatic firearm. As to the first two counts, the indictment also alleged that appellant personally and intentionally discharged a firearm causing great bodily injury and death. As to count III, the indictment alleged that appellant personally used a firearm and personally inflicted great bodily injury. Appellant pleaded not guilty to each count and denied the allegations.

Among other individual charges against the codefendants, indictment No. 183407-3 accused appellant, codefendant Darius Wong and others with conspiring to conceal the murder of Dung Quan by providing Darius Wong with a false alibi. Appellant pleaded not guilty.

In February 2002 the parties reached a negotiated disposition regarding both indictments and executed and filed an “Agreement Between the Defendant and the People for Testimony” (Negotiated Agreement). Appellant withdrew his pleas and pleaded as set forth in the first paragraph of this opinion.

Six months later appellant substituted new defense counsel and moved to continue sentencing in order to withdraw his plea. The court denied the motion and sentenced appellant as stated above. Thereafter the court held a further hearing to clarify its reasons for imposing the aggravated and consecutive terms. Appellant filed a notice of appeal and request for a certificate of probable cause, which the trial court denied.

II. DISCUSSION

A. Proper Reasons Were Given for the Upper Term for Voluntary Manslaughter.

Appellant challenges the trial court’s reasons for imposing an aggravated term for the voluntary manslaughter of Kenneth Haramoto. That sentence will stand.

At the sentencing hearing the court referenced several aggravating factors, as follows: (1) the crime involved great violence and disclosed a high degree of callousness (Cal. Rules of Court,^[1] rule 4.421(a)(1)); (2) appellant engaged in violent conduct indicating a serious danger to society (rule 4.421(b)(1)); (3) appellant sustained petitions in juvenile court (rule 421(b)(2)); and (4) appellant was armed with and used a weapon at the time of committing the offense (rule 4.421(a)(2)). A week later the court conducted a hearing to augment the sentencing record and made the additional finding that appellant “was uncooperative with the District Attorney’s Office with respect to the investigations that he committed himself to cooperate with and for that additional reason, . . . I am selecting the term of 25 years, four months.”

1. Rule 4.421 Factors

Appellant first charges that the court impermissibly relied on the rule 4.421(a)(1) and (b)(1) factors because violence is an element of the crime of voluntary manslaughter and all such crimes disclose a high degree of callousness and danger to society. Thus the sentence violated the prohibition against dual use of facts codified in rule 4.420(d). We disagree.

Where, for example, the facts of the case at hand show cruelty, viciousness and callousness which transcended the taking of the victim’s life, the defendant is not immunized from rule 4.420(d). (People v. Duran (1982) 130 Cal.App.3d 987, 991.) Here, the evidence shows that two young women were arguing outside the Sonic Bar. Several friends, including appellant, were in the same area. Appellant fired his weapon in a public area, shot Haramoto five times, killing him, and shot Vanderhule in the shoulder. This is not your ordinary garden variety voluntary manslaughter.^[2]

As to the fact that appellant had a history of sustained juvenile petitions, the record indicates that he suffered sustained juvenile petitions for three felonies (accessory to a felony [first degree robbery] and two counts of burglary) and one misdemeanor burglary. This is “numerous” within the meaning of rule 4.421(b)(2). (People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [three convictions are “numerous’ within meaning of rule].)

Appellant also attacks the trial court’s reliance on the fact that he was armed and used a weapon in the commission of the offense. The trial court imposed an upper 11-year term for voluntary manslaughter and a consecutive upper one-year term for the use of a firearm enhancement. Under Penal Code^[3] section 1170, subdivision (b), “[t]he court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.”

Assuming that the court erroneously relied on use of a weapon as an aggravating factor, the evidence supported the other factors discussed above. A single aggravating factor is enough to justify the upper term. (People v. Cruz (1995) 38 Cal.App.4th 427, 433.) It is not reasonably probable that the trial court would have selected a lesser sentence had it not relied on weapon use to aggravate the term. If error, such reliance was harmless. (People v. Price (1991) 1 Cal.4th 324, 492.)

2. Cooperation Factor

Appellant further argues the court should not have cited appellant’s lack of cooperation as an additional reason for imposing an aggravated sentence. He claims it was the People’s fault, not his, that he did not cooperate with the authorities. The entire argument is built on the faulty premise that there were two agreements, a written agreement for reduction of charges, and an implicit agreement for reduction of the sentence.

a. Background: Some background is in order. The Negotiated Agreement provided that (1) appellant would plead guilty to charges “deemed appropriate” by the court and the district attorney; (2) the plea contemplated a prison term of between 20-1/3 and 25-1/3 years; (3) appellant would plead to “violent felony” offenses not limited to voluntary manslaughter; (4) appellant would “testify truthfully against all the defendants in People v. Darius Wong, et al.” (case in which appellant, a codefendant, was charged with conspiracy to obstruct justice); (5) appellant would “cooperate fully in the investigation and prosecution of any cases arising out of the proffer he provided to the San Francisco Police Department” and would truthfully answer relevant questions posed by any prosecutor or other law enforcement officer; (6) sentence would not be imposed until conclusion of the Darius Wong jury trials; and (7) if there was a dispute as to whether appellant testified truthfully and the trial court concluded he made a material false statement, the People had the option of voiding the agreement, reinstating original charges and filing appropriate additional charges, including perjury.

At the plea proceeding defense counsel indicated “the agreement will be pursuant to a written plea agreement that will be supplemented by formal allocutions on the record.”^[4] He went on to state the specific terms to which appellant would plead and the items that would be stricken. The prosecutor indicated that the sentencing “spread” would be from 20-1/3 to 25-1/3 years, “subject to the discretion of the Court after reviewing the nature and extent of the defendant’s compliance with the terms of a plea agreement and its evaluation of his testimony.” Appellant indicated that he heard and understood everything that was said, and had sufficient time to speak with his attorney prior to the hearing. The court went over the various waivers and asked appellant if he understood that his sentence would be between 20-1/3 and 25-1/3 years. Appellant indicated he did.

Six months later appellant substituted new counsel, who sought a continuance of the sentencing hearing to prepare a motion to withdraw the plea. The prosecutor pointed out that under the plea agreement, appellant had a duty to cooperate in testimony in the Darius Wong case and that in determining “what the spread on the sentence should be,” the court was to take into account whether or not appellant had been truthful in that matter. It was the prosecutor’s understanding that the plea agreement contemplated between 20-1/3 years and 25-1/3 years depending on “whether or not he’s been truthful.” With the effort to withdraw, appellant “would not be agreeable to testifying in the other matter” and thus presumably he would get the higher sentence. The court went on to express its discomfort with plea agreements which tie the sentence to whether or not defendant tells the truth.^[5] It was the court’s understanding that this was not such an agreement. Rather, the agreement was that defendant be cooperative, and the court would assess cooperation based on the totality of the circumstances.

Thereafter counsel moved to withdraw the plea. Appellant submitted a declaration stating his former defense counsel coerced him into entering the plea agreement, and should have investigated and discovered that a witness who had withheld information and then gave a damaging statement was not truthful, and that newly discovered exculpatory evidence could have strengthened his defense. Denying the motion, the court concluded that appellant and counsel had discussed all the pertinent information available at the time and the decision to enter the plea was knowing and intelligent.

At the subsequent sentencing hearing, defense counsel stated that appellant was unable to fulfill the cooperation condition because the prosecution decided not to use him as a witness after he moved to withdraw his plea. The prosecutor countered that once appellant filed a declaration saying he was innocent, his credibility as a witness was “spoiled” because he was basically saying he was railroaded. The court imposed the aggravated term based on aggravating factors and the absence of mitigating factors. The court held a supplemental hearing to augment the reasons for imposing the upper term. Defense counsel argued that the traditional “Rules of Court” analysis should not apply—“It’s either he cooperated, he gets the low term or he did not cooperate and he gets the high term.” The court found that appellant “was uncooperative with the District Attorney’s Office with respect to the investigations that he committed himself to cooperate with.”

b. Analysis: First, the gist of appellant’s argument hinges on his contention that there were two agreements: (1) one written agreement for reduction of charges based on appellant’s agreement to cooperate, the remedy for breach being reinstatement of the original charges plus the possibility of additional charges (e.g., perjury) based on his statements; and (2) one oral agreement for reduction of sentence based on appellant’s commitment to provide truthful testimony, the remedy for breach being imposition of the upper term. Under this theory, lack of cooperation was not a valid reason to impose the upper term. Moreover, even if the lack of cooperation finding included failure to give truthful testimony, appellant did not willfully fail to honor that agreement.

There was but one agreement, described above, which encompassed a reduction of charges as well as a confined sentencing range. Appellant’s convoluted argument about one agreement for reduction of charges and one for reduction of sentence is beyond a strained reading of the record. The written agreement stated appellant would plead guilty to violent felony offences, including voluntary manslaughter, and that the sentence would be between 20-1/3 and 25-1/3 years. The “allocutions” on the record spelled out the particular offenses pleaded to and stricken. One agreement, unfolding according to plan.

Appellant also suggests that the court changed the terms of the plea agreement, from a requirement of truth-telling to one of cooperation. Again, this is not the case. The court’s assessment of appellant’s cooperation encompassed the totality of the circumstances, including whether it appeared that he was telling the truth. The agreement called on appellant to testify truthfully and to cooperate in the investigation and prosecution of cases arising out of his proffer to the police. The court did not change terms.

As to whether the facts support a finding of failure to cooperate, appellant further asserts that the prosecutor’s position on his usefulness as a witness was contrived, and in any event the Darius Wong case settled so there was no need to testify. We conclude that appellant’s lack of cooperation is demonstrated on the record and cannot be blamed on the prosecution.

As the People point out, the prosecution agreed to the negotiated disposition on the premise that appellant’s plea to voluntary manslaughter was based on his willingness to tell the truth, which would boost his credibility in the Darius Wong case. Once he took the position that he was railroaded into signing the agreement, his credibility was diminished. Further, defense counsel admitted that “[a]s a result of [the effort to withdraw the plea], [appellant] was unable to complete—under my advice, to complete that agreement. . . . [The prosecutor] indicated to me—he asked me . . . more than once is Mr. Tu going to continue to cooperate I guess would be the word and I said we have to see how the motion goes, obviously after the motion we will talk more.” According to the prosecutor, prior to the motion to withdraw, appellant had proffered a video statement. But the plea agreement included the prosecutor’s ability to go back to appellant for further information, polygraph him if necessary, and his ongoing obligation to testify to any further matter that developed. Apparently once the motion to withdraw was underway, appellant’s attorney advised the prosecutor that appellant would not submit to any further interviews and the district attorney’s office should not speak with appellant for any purpose. And even though the Darius Wong case settled, the prosecutor felt that appellant’s behavior prejudiced the outcome and forced the People to take a lesser sentence. Defense counsel disagreed with the People’s evaluation of the harm stemming from appellant’s declaration in the motion to withdraw. However, there was substantial evidence to support the trial court’s conclusion that appellant did not cooperate. The court was within its discretion and within the terms of the agreement to rely on this finding to impose the upper term.

c. Supplemental brief; related due process argument: In his supplemental brief, appellant recasts the cooperation argument into an argument that the court failed to give him the benefit of his plea bargain, thereby violating his due process rights. Again, he posits two agreements, an argument this court has rejected. Appellant also reasserts the charge that the judge changed the terms of the agreement for reduction of sentence, from an agreement to testify truthfully to an agreement for cooperation. Again, we have rejected that argument.

Next, appellant maintains that he fulfilled the agreement to cooperate in the prosecution of cases arising out of his proffer. To reiterate: The trial court correctly looked at the totality of circumstances, including failure to testify. The agreement set forth conditions of cooperation and provision of testimony. It set forth a sentencing range, and inherent in that provision was the court’s discretion to select the appropriate term. The agreement provided that in the event the court determined appellant did not testify truthfully, the People could reinstate the original charges. However, the agreement did not purport to excuse other failures of performance, nor did it purport to hamstring the court’s selection of a sentence within the agreed upon range. Specifically, nothing in the agreement limited the court’s considerations of factors in choosing the sentence.

The court did not violate the plea agreement; nor did it violate appellant’s due process rights in sentencing him in accordance with that agreement.

B. There Was No Error Regarding Mitigating Factors.

Appellant accuses the court of failing to consider mitigating factors. Not so.

The court stated it did not find any mitigating circumstances. Appellant states there were several “[]indisputably mitigating factors.” These purportedly include appellant’s youth (he was 20 at the time of committing the crimes); as a juvenile offender, appellant was selected to attend the Glen Mills School, a program for those few juveniles who show intelligence and motivation to improve their lives; appellant received his high school diploma from Glen Mills; appellant held a full-time job as a lab technician after high school; appellant did not abuse drugs or alcohol; and appellant provided some information about the Darius Wong matter.^[6]

Here the record shows that the judge, as part of the recusal proceedings, stated he was aware, and in fact had a “distinct memory” about appellant’s attendance at Glen Mills School. Further, the probation report noted appellant’s date of birth, indicated he received a high school diploma from that school, worked as a lab technician and did not abuse drugs or alcohol. The trial court stated on the record that it read and considered the probation report in its entirety.

A trial court may minimize or disregard mitigating factors without stating its reasons. (People v. Zamora (1991) 230 Cal.App.3d 1627, 1637.) Moreover, unless the record affirmatively reflects otherwise, the trial court will be deemed to have considered the relevant criteria enumerated in the sentencing rules, including mitigating circumstances. (Ibid.)

Implicit in the trial court’s finding is its minimization or rejection of the cited factors as mitigating factors. People v. Covino (1980) 100 Cal.App.3d 660 does not aid appellant. There the reviewing court held that the defendant was entitled to a new sentencing hearing because the lower court failed to consider positive letters that had been submitted by the defendant’s attorney, employer and friend stating that he was a good worker, a kind person, and had a drinking problem. Additionally, the trial court mistakenly relied on a prior conviction. (Id. at pp. 670-672.) There is no similarity between Covino and the instant case. The facts in Covino related to specific positive qualities of the defendant’s character and a debilitating condition. The facts that appellant argues are mitigating are more generic, in the nature of a statistical profile: He is young; a high school graduate; he worked as a lab technician; he is intelligent; and he is not a drug or alcohol abuser. The record shows the court considered the relevant sentencing criterion; appellant just does not like the outcome.

C. The Court Gave Proper Reasons for Imposing the Upper Term for the Firearm Enhancement.

Appellant claims the court did not give any reason for selecting the upper term for the firearm enhancement. We disagree.

After listing the circumstances in aggravation that it had considered, and reflecting that it found no mitigating circumstances, the court stated: “It seems to me that there is no choice but to impose the aggravated term and the aggravated term on the most serious charge, which is voluntary manslaughter, begins with a base term of 11 years.” The court progressed through several other sentencing issues and then addressed the section 12022.5 allegation: “The base term is the aggravated term on Count 1. I have selected the aggravated term for the reasons previously mentioned. [¶] Adding to that eleven years is the aggravated term of ten years on the allegation charged pursuant to Penal Code Section 12022.5 for a total base term of 21 years.”

It is clear to this court from our review of the sentencing hearing that the aggravating circumstances which the trial court enumerated applied to both the voluntary manslaughter and the firearm use. There was no error. We do not expect a perfect script.

D. The Court Gave Adequate Reasons for the Consecutive Term on Count III.

Appellant also faults the adequacy of the trial court’s reason for imposing the consecutive term for count III, conspiracy to provide a false alibi for Darius Wong. We disagree.

The imposition of consecutive sentences is a sentencing choice requiring a statement of reasons. (§ 1170, subd. (c); People v. Powell (1980) 101 Cal.App.3d 513, 518.) Rule 4.425(a) sets forth several criteria affecting the decision to impose consecutive sentences, including whether “(1) The crimes and their objectives were predominantly independent of each other. [¶] (2) The crimes involved separate acts of violence or threats of violence. [¶] (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.” The court indicated it was relying on rule 4.425(a)(2) to impose consecutive sentences.

Appellant pleaded no contest to conspiring to obstruct justice “by concealing the murder of Dung Quan and by providing a false alibi for Darius Wong to law enforcement.” The indictment reveals that Darius Wong shot and killed Dung Quan and appellant was involved in the coverup. Although the underlying crime was violent, appellant argues that his participation did not involve violence or the threat of violence and hence the court’s reason was no good. Assuming appellant is correct, the rule 4.425(a)(1) and (3) factors clearly apply and justify imposition of the consecutive term. The crimes of February 2001 and August 1999 were independent of one another, with separate aims, and clearly were committed at different times and places. Any deficiency in the statement of reasons was harmless.

E. There Is No Need to Address Appellant’s Ineffective Assistance of Counsel Argument.

Appellant contends he did not waive any of the purported sentencing errors discussed in his brief because his attorney did not have a meaningful opportunity to object. Taking this a step further, he argues that if his attorney did have a meaningful opportunity to object, a reasonably competent attorney would have done so and appellant therefore was deprived of effective assistance of counsel.

We have decided each sentencing issue on its merits, not on the basis of waiver, and have found any error to be harmless. Therefore, it is not necessary to further address this argument.

F. Appellant’s Blakely Error Lacks Merit.

Finally, appellant maintains that the court impermissibly imposed upper terms and consecutive sentences based on facts that were not found by a jury nor admitted when he waived jury trial and entered his plea. He relies on Blakely v. Washington, supra, 542 U.S. 296.

Our Supreme Court recently held “that the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (People v. Black (2005) 35 Cal.4th 1238, 1244.) The decision in Black resolves appellant’s entire argument.

III. DISPOSITION

The judgment is affirmed. We note that the abstract of judgment shows a stayed six-year term for assault with a firearm. The trial court stated it would dismiss that offense at the time of sentencing. Moreover, appellant never pleaded to that offense. Therefore, we order the abstract of judgment amended to delete the stayed sentence.

_________________________

Reardon, Acting P.J.

We concur:

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Sepulveda, J.

_________________________

Munter, J.^*

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^[1] All references to rules are to the California Rules of Court.

^[2] Appellant also asserts that his plea did not include any admission that this manslaughter was more violent or exhibited a greater degree of callousness and danger to society than is inherent in any manslaughter, and therefore he is entitled to a jury trial and proof beyond a reasonable doubt on these factors under Blakely v. Washington (2004) 542 U.S. 296. We treat this argument in part II.F., post.

^[3] All statutory references are to the Penal Code.

^[4] The formal allocutions consisted of the specific pleas and admissions, recitation of constitutional rights, advisements, maximum terms, possibility of parole and consequences regarding revocation and the fact that the plea was offered as a result of discussions with the court and district attorney’s office as embodied in the written plea agreement executed in open court.

^[5] The court related a past instance where a public defender cross-examined a witness who was the beneficiary of this type of agreement. When asked his understanding of what it meant to perjure oneself, the witness said, “[S]aying something the district attorney doesn’t want me to say.” Needless to say, the court did not want to create that type of environment.

^[6] Appellant’s willingness to provide information was in furtherance of the negotiated disposition, and thus his purpose was self-serving.

^* Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.