P. v. Duncan

Filed 11/30/05 P. v. Duncan CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. JOSHUA DUNCAN, Defendant and Appellant.

E037559 (Super.Ct.No. FWV027948) OPINION

APPEAL from the Superior Court of San Bernardino County. Dennis G. Cole, Judge. Affirmed.

Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton,

Supervising Deputy Attorney General, and Alana Cohen Butler, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Joshua Duncan appeals the trial court’s judgment imposing the upper term sentence of nine years following his plea of guilty to attempted second degree murder according to a plea bargain. Defendant contends the trial court improperly failed to state reasons for imposing the upper term pursuant to Penal Code section 1170, subdivision (b)^[1] and abused its discretion by imposing the upper term. We disagree and affirm.

FACTUAL^[2] AND PROCEDURAL BACKGROUND

On the afternoon of January 10, 2003, defendant and three other juveniles were driving a stolen van in the area of Baseline and Etiwanda when the van ran out of gas. They parked the van and discussed what they were going to do next and how they could steal another car. Two of the juveniles that were in the car stated in their interviews with a detective that defendant suggested they hijack^[3] another car. The plan was that defendant and Chaz C. would knock on the door of a house, threaten the owner with a knife, and demand the keys so that they could steal the car. Chaz C. stated in his interview that defendant had a military bayonet and a large, silver-blade knife. He also reported that defendant said he would “stick him” if the owner did not give up his car keys. After discussing the plan, the four juveniles walked the neighborhood until defendant saw a silver Celica that he liked. The car was parked in the driveway of the home of Deputy Sheriff Tommy Alcarez.

Defendant and Chaz C. went to Alcarez’s front door and rang the doorbell twice while the other two juveniles stayed as lookouts across the street. No one answered the door so defendant and Chaz C. entered the backyard. Alcarez saw defendant trying to remove the glass sliding door from its tracks. Chaz C. said that defendant told him to throw a brick through a window but he refused so defendant picked up the brick, threw it through the window, and entered the residence. During his interview with a detective, defendant said that he pulled the bayonet out before entering Alcarez’s home in case he needed to defend himself against a resistant homeowner. When asked “why [he] would . . . need to defend [himself] against the homeowner who has the right of defense from [defendant] coming into the home,” defendant replied, “Well, it’s kill or be killed.”

Chaz C. then began to enter the house, holding a knife, when he heard Alcarez yell, “Sheriff’s department,” and then saw him point a gun at defendant. Chaz C. backed out of the window, dropped his knife, and ran.

Alcarez grabbed defendant by the shirt and attempted to take him down to the floor. At that point, he noticed a bayonet in defendant’s right hand so he let go of defendant. Defendant swung the bayonet when Alcarez took a step back and simultaneously shot at defendant twice. The bayonet came within an inch of Alcarez’s chest. Defendant told the detective that “[he] wasn’t trying to stab [Alcarez], [he] was going for his gun and [Alcarez] must have thought [that defendant] was trying to stab him and that’s when [Alcarez] shot [him].” Defendant left through the front door and Alcarez shot at defendant three more times. Alcarez followed defendant and saw him meet up with two other juveniles.

A three-count information charged defendant with attempted first degree murder (count 1), in violation of sections 664 and 187, subdivision (a); assault with a deadly weapon (count 2), in violation of section 245, subdivision (a)(1); and first degree residential burglary (count 3), in violation of section 459. The information further charged that defendant personally used a deadly weapon during the commission of counts 1 and 3 in violation of section 12022, subdivision (b)(1).

PRETRIAL HEARING

At a pretrial hearing on September 28, 2004, the People moved to amend the information to include a charge for attempted second degree murder (count 4) in violation of sections 664 and 187. Defendant agreed to plead guilty to count 4, attempted second degree murder with the attached deadly weapon allegation and count 3, first degree residential burglary, in exchange for a dismissal of the remaining charges and a sentence no greater than 11 years 4 months in state prison.^[4] At the hearing, the court stated, “My understanding of the plea bargain in this particular matter is that you would enter those pleas, and there would be an 11 year, 4 month lid. You are ineligible for probation, but the Court could sentence you anywhere from the mitigated term up to 11 years, 4 months. [¶] Is that your understanding of the plea bargain, sir?” To this defendant replied, “Yes” and the People consented. The court referred the matter to the probation department for a presentence investigation and report.

PROBATION REPORT

The probation report recommended that the court deny probation to defendant and sentence him to prison for a total of 11 years 4 months (9 years for attempted second degree murder plus 1 year for the deadly weapon enhancement plus 1 year 4 months for residential burglary). In support of the sentencing recommendation, the report noted that defendant was not eligible for probation pursuant to section 1203, subdivision (e)(2), which states that probation shall not be granted to any person who used, or attempted to use, a deadly weapon upon a human being in connection with the perpetration of the crime of which he or she has been convicted. (§ 1203, subd. (e).) Furthermore, the report listed four circumstances in aggravation: (1) the crime involved great violence and great bodily harm; (2) the defendant was armed with or used a weapon at the time of the offense; (3) the defendant occupied a position of leadership in the crime; and (4) the manner in which the crime was carried out indicated planning, sophistication or professionalism. (Cal. Rules of Court, rule 4.421.^[5]) The report noted defendant’s lack of a prior record as the single circumstance in mitigation pursuant to rule 4.423.

THE SENTENCING HEARING

At the sentencing hearing, the trial court noted that “[t]here is a probation officer’s report which the Court has read and considered in this particular matter. [¶] And . . . the Court has received several letters from family members, which the Court has read and considered as it related to [defendant].” Thereafter, the court heard both the People’s and defendant’s arguments regarding the aggravating and mitigating circumstances.

The trial court denied probation and sentenced defendant to a total term of 10 years in state prison, comprised of the upper term of nine years on count 4 and one year for the weapon enhancement. The court also sentenced defendant to four years on the residential burglary charge to run concurrent to the sentence for count 4. However, the court did not state its reasons for imposing the upper term on the record and found that “pursuant to Rule 412,^[6] this was a stipulated agreement, and the Court need not make any findings under the . . . circumstances in aggravation or mitigation.”

DISCUSSION

I. Did the trial court err when it concluded that it was not required to state reasons on the record for imposing the upper term on count 4?

Defendant contends that the trial court erred when it concluded that pursuant to rule 4.412, it was not required to state reasons on the record for imposing the upper term on count 4. “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.” (§ 1170, subd. (b).) Furthermore, “[t]he court shall state the reasons for its sentence choice on the record at the time of sentencing.” (§ 1170, subd. (c).)

However, it is well established that a sentencing court is not required to provide reasons for sentence choices made when imposing a sentence according to a negotiated plea. Rule 4.412(a), provides in pertinent part, “It is an adequate reason for a sentence or other disposition that the defendant, personally and by counsel, has expressed agreement that it be imposed and the prosecuting attorney has not expressed an objection to it. The agreement and lack of objection shall be recited on the record.” (People v. Villanueva (1991) 230 Cal.App.3d 1157, 1162 and People v. Tucker (1986) 187 Cal.App.3d 295, 297, overruled on other grounds by People v. Buttram (2003) 30 Cal.4th 773, 789.)

In People v. Tucker, the First District held that a trial court was not required to state its reasons on the record for sentencing defendant to eight years in prison when defendant bargained for pleas of nolo contendere in exchange for a sentence of “not more than 10 years.” (People v. Tucker, supra, 187 Cal.App.3d at pp. 296-297, overruled on other grounds by People v. Buttram, supra, 30 Cal.4th 773, 789.) The court stated that “rule 440^[7] [citation], reasonably [applied] where, as here, the defendant has agreed to a sentence of ‘not more’ than a certain term of imprisonment. That rule, as relevant, states: ‘(a) If a plea of guilty or nolo contendere was entered . . . and the plea was accepted by the prosecuting attorney in open court and was conditionally approved by the court, the defendant’s specification of the punishment and the prosecuting attorney’s acceptance thereof in open court constitutes an adequate reason for the imposition of the punishment specified.’” (Tucker, at p. 297.)

Similar to Tucker, defendant in the present case specifically agreed to an “11 year, 4 month lid,” which is essentially the same as a sentence of “not more than 11 years and four months.” Furthermore, during the hearing on September 28, 2004, the trial court specifically stated, “My understanding of the plea bargain in this particular matter is that you would enter those pleas [count 4, attempted second degree murder, and count 3, residential burglary, with the use of a knife] but the Court could sentence you anywhere from the mitigated term up to 11 years, 4 months. [¶] Is that your understanding of the plea bargain, sir?” Defendant expressly agreed to those terms on the record when he said “Yes,” and the People accepted. Since there was a plea bargain for a specified term and the court sentenced defendant to a term within the agreed lid, we conclude that the plea bargain was within the confines of rule 4.412(a) and the trial court was not required to state a reason for imposing the upper term on count 4. As such, the court did not err in concluding that it was not required to state reasons for imposition of the aggravated term.^[8]

II. Did the trial court abuse its discretion by imposing the upper term on

count 4?

A. Circumstances in Aggravation

On appeal, defendant contends that the trial court abused it discretion in imposing the upper term on count 4. According to section 1170, the trial court shall impose the middle term, unless there are circumstances in aggravation or mitigation of the crime. (§ 1170.) “‘Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citations], and may balance them against each other in “qualitative as well as quantitative terms” [citation] . . . . We must affirm unless there is a clear showing the sentence choice was arbitrary or irrational.’ [Citation.]” (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) “[A] single factor in aggravation suffices to support an upper term.” (People v. Osband (1996) 13 Cal.4th 622, 730, distinguished on other grounds by People v. Lucero (2000) 23 Cal.4th 692.)

Circumstances in aggravation and mitigation shall be established by a preponderance of the evidence. (Rule 4.420(b).) Furthermore, “each aggravating factor must be supported by the evidence in the record.” (People v. Searle (1989) 213 Cal.App.3d 1091, 1096, citing People v. Arbee (1983) 143 Cal.App.3d 351, 356, and People v. Berry (1981) 117 Cal.App.3d 184, 198.) “In determining whether there are circumstances that justify imposition of the upper or lower term, the court may consider the record in the case, the probation officer’s report, other reports including reports received pursuant to Section 1203.03 and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing.” (§ 1170, subd. (b).) Section 1170, subdivision (b) further states that “[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.”

Two of the four circumstances in aggravation listed in the probation report violate the prohibition against dual use as set forth in section 1170, subdivision (b). Defendant’s possession and use of the bayonet in an attempt to injure Alcarez were cited in the probation report as reasons in support of the following aggravating circumstances: (1) The crime involved great violence or threat of great bodily harm, and (2) The defendant was armed with or used a weapon at the time of the commission of the crime. Assuming the court considered defendant’s use of the bayonet to support one, the other, or both of the above circumstances in aggravation, we must discard those factors since the court already sentenced defendant to a one-year enhancement for using the bayonet in the commission of his crimes. Section 1170, subdivision (b), prohibits the court from using defendant’s possession and use of the bayonet to impose the upper term. Thus, the court could not have based its imposition of the upper term on these two factors. However, it could have considered the other two possible circumstances in aggravation.

1. Planning, Sophistication, or Professionalism

Defendant contends that his poor execution of the crime, resulting in his being shot by Alcarez, demonstrated that the crime was not carried out in a manner that indicated planning or professionalism. Rule 4.421 notes that if the manner in which the crime was carried out indicates planning, sophistication, or professionalism, it is a circumstance in aggravation. (Rule 4.421(a)(8).)

In this case, there is sufficient evidence on the record to support a finding that the manner in which defendant carried out his crimes indicates planning. Interviews with defendant, Chaz C., and the other two juveniles, all confirm that there was a plan in place for defendant and Chaz C. to “hijack” a car. “[Defendant and Chaz C.] were going to knock on the door and demand the keys from the owner, if the owner were home to steal the car.” Defendant even brought a bayonet with him in case he was confronted with a homeowner who resisted because, according to defendant, “it’s kill or be killed.” Furthermore, defendant acted according to the plan. Merely because the crime was poorly planned and executed does not support defendant’s contention that it was not planned at all. Therefore, the trial court could have considered that defendant planned the commission of the crime, which is a valid circumstance in aggravation.

2. Occupied a Leadership Position

Rule 4.421(a)(4) provides that it is a circumstance in aggravation if “[t]he defendant induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in its commission.”

Defendant contends that “there was no credible, solid evidence indicating that [he] was the leader of the offense” because the use of codefendants’ statements violate his Sixth Amendment rights as forth in Crawford v. Washington (2004) 541 U.S. 36. The People argue that the statements were properly considered because a defendant does not have a Sixth Amendment right to confrontation at the sentencing stage of criminal proceedings. (People v. Cain (2000) 82 Cal.App.4th 81, 86.) We agree with the People.

The California Supreme Court noted that “[i]n Williams v. New York (1949) 337 U.S. 241, 251 . . . , the United States Supreme Court concluded that the federal due process clause does not extend the same evidentiary protections at sentencing proceedings as exist at the trial. A sentencing judge ‘may, consistently with the Due Process Clause of the Fourteenth Amendment, consider responsible unsworn or “out-of-court” information relative to the circumstances of the crime and to the convicted person’s life and characteristics.’ [Citation.]” (People v. Arbuckle (1978) 22 Cal.3d 749, 754.) Accordingly, the court properly considered statements made by defendant’s coperpetrators in the present case.

There is sufficient evidence on the record to support a finding that defendant induced others or occupied a position of leadership in the commission of the crime. Chaz C. and another juvenile told the detective that defendant came up with the plan that he and Chaz C. would walk up to a house, knock at the front door, and demand the car keys from the homeowner. He also said that defendant had a bayonet and a large knife with him. Defendant himself stated that he brought the bayonet for self-defense. Furthermore, it was defendant and Chaz C. who rang the doorbell of Alcarez’s house. Chaz C. also told the detective that when no one answered the door, defendant told him to throw a brick through the window and when he refused, defendant picked up the brick and threw it. Defendant was the person who entered the house after he broke the glass door and this fact is corroborated by Alcarez’s testimony. Furthermore, defendant was the person who confronted Alcarez after Chaz C. fled. The consistent statements provided by all who were present support the conclusion that defendant played a leadership role in the commission of the crime. Thus, it was proper for the trial court to consider defendant’s leadership in the commission of the crime as a circumstance in aggravation.

B. Circumstance in Mitigation

Defendant contends that there were several circumstances in mitigation, which outweighed the aggravating circumstances. Therefore, he should have received, at most, the midterm sentence on count 4. Defendant cited his lack of a prior criminal record and his guilty plea before commencement of trial as mitigating factors. The probation report listed defendant’s lack of a criminal history as the single mitigating factor.

Unless the record affirmatively reflects otherwise, the trial court will be deemed to have considered the relevant criteria, such as mitigating circumstances, enumerated in the sentencing rules. (People v. Jackson (1980) 103 Cal.App.3d 635, 639.) At the sentencing hearing, the trial court stated, “There is a probation officer’s report which the Court has read and considered in this particular matter. [¶] And . . . the Court has received several letters from family members, which the Court has read and considered as it relates to Mr. Duncan.” After that, defendant’s counsel provided an argument on the mitigating factors that the court should consider. Furthermore, the court indicated that it also read letters from defendant’s parents. Hence, on the record before us, we must presume that the trial court considered all the mitigating circumstances that were present, but concluded that they were outweighed by the aggravating circumstances. Since the trial court has a wide discretion in weighing the aggravating and mitigation factors and two aggravating factors were present where only one is required to impose the upper term, the trial court did not abuse its discretion when it sentenced defendant to the upper term of nine years for attempted second degree murder.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P.J.

KING

J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Because defendant pled guilty, the statement of facts is derived from information in the probation officer’s report and the preliminary hearing transcript contained in the clerk’s transcript.

^[3] One of the juveniles, Chaz C., defined “hijack a car” as taking a car by force or a carjacking.

^[4] Although the reporter’s transcript and the minute order referenced a violation of section 190, subdivision (b), it is apparent from the record that all parties understood that defendant was to plead to attempted second degree murder. The abstract of judgment correctly states that defendant was convicted of attempted second degree murder pursuant to section 187, subdivision (a).

^[5] All further rule references are to the California Rules of Court unless otherwise indicated.

^[6] Rule 412 was amended and renumbered as rule 4.412 effective January 1, 2001.

^[7] Rule 440 was repealed effective January 1, 1991, and replaced with rule 412(a), which was renumbered rule 4.412(a). The rules are substantively the same.

^[8] Since the trial court did not err by failing to state its reasons for imposing the upper term, we need not consider whether defendant waived his objection to the error.