Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. BA317582, Patricia M. Schnegg, Judge.
Robert H. Pourvali, 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, Assistant Attorney General, Keith H. Borjon and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
INTRODUCTION
Appellant Roberto Antonio Carranza challenges the trial court’s sentencing choice, viz., the three-year middle term of imprisonment under Penal Code section 245, subdivision (a)(1). He contends that under the 2007 amendments to section 1170, subdivision (b), the trial court was required to choose the low term of two years, unless it found that factors in aggravation outweighed factors in mitigation. Further, he contends that the court abused its discretion in rejecting the mitigating factors he established, arguing that the court should have found that they outweighed any aggravating factors.
All further statutory references are to the Penal Code.
We reject appellant’s contentions, finding no abuse of discretion under the pre-2007 sentencing statute, which did not require weighing factors in aggravation and mitigation before imposing the middle term. Further, had the court been required under the recent amendments to weigh such factors, and failed to do so, no reversal would be required, as appellant has not shown prejudice. Thus, we affirm the judgment.
BACKGROUND
Appellant was charged in count 1 of the information with the attempted murder of Juan Rodriguez with the special allegation that appellant used a deadly weapon in the commission of the offense. In count 2, appellant was charged with assault with a deadly weapon. It was specially alleged as to both counts that appellant inflicted great bodily injury on the victim.
At trial, Rodriguez--whose true name was Esteban Ramos--testified that on February 20, 2007, while waiting for a bus near Olvera Plaza in Los Angeles, he felt a sensation similar to an electrical charge throughout his body, but saw no one. Moments later, Ramos noticed that he was bleeding on the right lower side of his back, near the kidney. He observed appellant running away holding a knife which was dripping blood. Ramos testified that he was acquainted with appellant and had seen him many times before in the same area. Ramos identified appellant in court and pointed out that he had only one arm.
Ramos testified that when he fell to the ground, a passerby came to his aid. The passerby was applying pressure to the wound, when Ramos lost consciousness. Ramos remained unconscious for four days, and was hospitalized for eight days. He suffered lacerations to his liver, diaphragm and small intestine, and underwent surgery to suture the organs. At trial, Ramos still had scars on his back and abdomen, and felt numbness and a cramp-like pain every day. To ease the pain, he was required to wear a support belt.
Ramos testified that four or five days before the assault, he had quarreled with appellant over the belongings appellant kept in a shopping cart. Appellant yelled something like, “Why are you searching through my things? These are my things.” Appellant accused Ramos of attempting to steal the cart, but Ramos claimed he never touched it or took anything from it. He had merely been walking in the vicinity of the cart. Ramos testified that the quarrel was verbal, not physical, and no threats were made by either man.
Los Angeles Police Officer Miguel Arambula testified that he and his partner David Bowen responded to a call to go to the location of the assault, where they found Ramos on the ground bleeding, and a citizen applying pressure to his wound. After obtaining a description, the officers detained appellant and questioned him at the station. Appellant denied he had attacked Ramos, claiming he had been across the plaza at the time, drinking with friends. Appellant appeared to be very intoxicated, but was cooperative.
Los Angeles Police Officer Abraham Estrada testified that while working at the scene, a citizen directed him to a knife he had found on the sidewalk near the church on Olvera Street. The knife had fresh blood on it.
Los Angeles Police Detective John Arredondo testified that he interviewed appellant the day after the assault. Initially, appellant denied stabbing the victim. Appellant told Detective Arredondo that he was from Honduras, and had no family in the United States. He was homeless, and had been living on the streets for a year and a half. Appellant told Arredondo that he had known Ramos for about one month, and had seen him occasionally on the street. Appellant told him that he and Ramos had quarreled earlier in the week and again on the day of the assault. Appellant claimed that on the day of the assault, Ramos pushed or slapped him in the back of the head. Appellant said this upset him, and he asked Ramos, “Why don’t you pick on somebody with two arms?” Appellant claimed that after more angry words were exchanged, he went away, but came back later, stabbed Ramos once in the chest and then ran across the street and discarded the knife. Arredondo testified that appellant appeared very remorseful.
Appellant testified that he was homeless, and that he regularly slept behind the church on Olvera Plaza. He kept his clothing and blankets in a shopping cart about 50 meters from the church. Appellant claimed that Ramos had stolen from his cart twice before. Appellant claimed that five days before the attack, he saw Ramos from 50 meters away going through his cart taking his pants, and that two days later, he saw him from the same distance, again stealing from the cart.
Appellant claimed that 10 minutes before he stabbed him, Ramos had approached him and hit him on the head, but appellant later admitted that Ramos had never threatened him. Appellant claimed that he took out his knife intending only to scare Ramos, and denied that he intended to kill him. Appellant testified that he was extremely drunk at the time. Appellant admitted that he had been convicted in 2005 of felony possession of cocaine with intent to sell.
The jury acquitted appellant of attempted murder, and found him guilty of assault with a deadly weapon. The jury found true the special allegation that appellant had inflicted great bodily injury on the victim. On October 18, 2007, the trial court sentenced appellant to the middle term of three years for the assault. The court did not state its reasons for choosing the middle term, but stated that it was “mindful of” the mitigating factors advanced by defense counsel. The court enhanced the sentence three years pursuant to section 12022.7, subdivision (a), due to the infliction of great bodily injury, for a total prison term of six years. Appellant timely filed a notice of appeal.
Counsel had argued that the low term was appropriate, because appellant was homeless, illiterate and mentally ill, and believed that the victim had stolen from him. He also pointed out that appellant had been abandoned at a young age and had lost his arm in a train accident, and that he admitted wrongdoing at an early stage of the criminal process.
DISCUSSION
Appellant makes a single assignment of error. He contends the trial court abused its discretion in imposing the middle term of three years for assault with a deadly weapon. Appellant claims the court was required by law to choose the lower term because he established that mitigating factors outweighed the aggravating factors.
“‘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.’” (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) “‘The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
Appellant’s offense occurred in February 2007; he was sentenced in October of that year. The former section 1170, subdivision (b) was amended by urgency legislation, effective March 30, 2007, to eliminate the statutory presumption favoring the middle term, and to require the weighing of aggravating and mitigating factors for any sentencing choice, not only the upper term. (Stats. 2007, ch. 3, § 2 (Sen. Bill No. 40).) Appellant suggests that the current version of section 1170 applied to his sentencing. While the California Supreme Court has suggested that it is “arguable” that the amendments to section 1170, subdivision (b) should be applied to any sentencing proceeding conducted after the effective date of the amendments, the court has declined to decide the issue. (People v. Sandoval (2007) 41 Cal.4th 825, 845.) As the court noted, however, “[c]riminal statutes presumptively apply only prospectively.” (Ibid.) (The court went on to hold that the former statute should be construed to apply to pending cases even though the crime was committed before the effective date of the amendment. [Id. at p. 846.])
Appellant has shown no abuse of discretion under the former statute. At the time appellant committed the assault in February 20, 2007, section 1170, subdivision (b) provided that the middle term was presumed to be the appropriate term: “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.” (Fmr. § 1170, subd. (b).) Thus, under the former statute, the sentencing court was not required to weigh mitigating and aggravating circumstances prior to imposing the middle term. (People v. Keeton (1992) 10 Cal.App.4th 1125, 1131-1132; fmr. § 1170, subd. (b).)
Nonetheless, we infer from the court’s comment--that it was “mindful” of counsel’s argument--that the court considered the mitigating factors advanced by defense counsel. It was well within the court’s discretion to reject them. (People v. Holguin (1989) 213 Cal.App.3d 1308, 1317-1318.) Further, the court was not required to explain its reasons for rejecting them. (People v. Avalos, supra, 47 Cal.App.4th at pp. 1582-1583; see also People v. Sandoval, supra, 41 Cal.4th at p. 847.) We thus conclude the middle term was appropriate under the former section 1170, subdivision (b).
Further, appellant has not shown reversible error under the current version of section 1170, subdivision (b). Applying the recent amendments, and assuming arguendo that the court failed to weigh aggravating and mitigating factors prior to imposing the middle term, appellant cannot establish prejudice, because “the 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, citing People v. Osband (1996) 13 Cal.4th 622, 728, italics added; see also People v. Towne (2008) 44 Cal.4th 63, 75 [single proper factor renders sentencing error harmless].) Although the trial court did not articulate the aggravating factors present in this case, the record disclosed at least two. Appellant had suffered three prior criminal convictions as an adult and was on probation at the time he committed the current offense. Rule 4.421(b) of the California Rules of Court provides now and provided at the time appellant committed the offense that the following factors in aggravation may properly be considered by the court: “The defendant’s prior convictions . . . are numerous or of increasing seriousness”; “[t]he defendant was on probation or parole when the crime was committed.” (Cal. Rules of Court, rule 4.421(b)(2) & (b)(4).)
Because appellant does not seek reversal on the ground that the trial court did not state its reasons for imposing the middle term, he has forfeited any claim of error on that ground under either version of section 1170, subdivision (b). (See People v. Senior (1995) 33 Cal.App.4th 531, 537 [the only points at issue are those raised in opening brief].)
Respondent cited a third factor, arguing that the victim was particularly vulnerable, because his back was turned and he did not see appellant approach or attack him. We do not include it in our discussion, because, although such facts were in evidence, they were not alleged or found true by the jury, and thus their consideration would be improper under Apprendi v. New Jersey (2000) 530 U.S. 466 and Cunningham v. California (2007) 549 U.S. 270. (People v. Miller (2008) 164 Cal.App.4th 653, 669; see People v. Sandoval, supra, 41 Cal.4th at p. 837.)
Neither factor must be found by the jury, as both come within the recidivism exception of Almendarez-Torres v. United States (1998) 523 U.S. 224, cited in Cunningham, supra, 549 U.S. 270 at p. ___ [127 S.Ct. at p. 868]. (People v. Towne, supra, 44 Cal.4th at pp. 75-77, 80-81.)
Appellant acknowledges that he was on probation at the time he committed the offense, but suggests that the California Rules of Court, rule 4.421(b)(4) factor should not have been given much weight, because it did not relate to a violent offense. There is no such qualifier in rule 4.421(b)(4), and appellant has cited no authority to support his assertion. We cannot add terms to a rule that is clear on its face. (See People v. Dobson (1988) 205 Cal.App.3d 496, 503-504 [“on probation” in former version of rule 4.421(b)(4) means either misdemeanor or felony probation], disapproved on another ground in People v. Jones (2001) 25 Cal.4th 98, 110.)
Appellant also contends that California Rules of Court, rule 4.421(b)(2) is inapplicable because his three prior convictions were neither numerous nor of increasing seriousness. We disagree. Three prior convictions are numerous. (People v. Searle (1989) 213 Cal.App.3d 1091, 1098.) The prior convictions need not be both numerous and of increasing seriousness, as that factor is stated in the disjunctive. (Cal. Rules of Court, rule 4.421(b)(2).) Nevertheless, we observe that appellant’s third offense was a felony, a more serious offense than the second offense--a misdemeanor.
Appellant suggests that two factors in aggravation cannot outweigh the mitigating circumstances advanced by defense counsel, because the mitigating circumstances were more numerous. The “weighing of aggravating and mitigating circumstances is metaphorical, connoting ‘a mental balancing process, but certainly not one which calls for a mere mechanical counting of factors on each side of the imaginary “scale”’ [citation]. . . .” (People v. Brasure (2008) 42 Cal.4th 1037, 1062, quoting People v. Brown (1985) 40 Cal.3d 512, 541.)
We conclude that under either former section 1170 or the current amendments to the statute, appellant has not established that the court’s sentencing choice was irrational or arbitrary. Thus, no abuse of discretion has been shown. Further, any error under the current statute was harmless.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J. WILLHITE, J.