Opinion
B225591
11-15-2011
THE PEOPLE, Plaintiff and Respondent, v. RAMZI MANSOUR, Defendant and Appellant.
Adrian K. Panton, 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, Assistant Attorney General, Roberta L. Davis and Sonya Roth, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. PA066428)
APPEAL from a judgment of the Superior Court of Los Angeles County. Ronald S. Coen, Judge. Affirmed.
Adrian K. Panton, 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, Assistant Attorney General, Roberta L. Davis and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant of second degree robbery in violation of Penal Code section 211 and found he personally used a firearm within the meaning of section 12022.53, subdivision (b). The trial court found that appellant had served two prior prison terms within the meaning of section 667.5, subdivision (b).
All further references to statutes are to the Penal Code unless stated otherwise.
The trial court sentenced appellant to a total of 17 years in state prison. The sentence consisted of the upper term of five years, 10 years pursuant to the firearm enhancement, and an additional two years for prior prison term enhancements.
Appellant appeals on the ground that resentencing is required because the trial court failed to indicate it considered that appellant exercised caution to avoid harm, and it failed to inform him that his sentence included a period of parole.
FACTS
Prosecution Evidence
On November 13, 2009, Charlie I. was 14 years old and a student at Granada Charter High School. At approximately 7:45 a.m., he went to a 7-Eleven store near his school to buy some snacks before class. As he was walking back to school, Charlie passed by appellant, who was sitting on a planter wall. Charlie heard appellant say, "Hey, come here." Charlie turned around and said, "What?" Appellant told Charlie again, "Come here." Charlie just walked away. He turned to look back at appellant, and appellant nodded at him. Because Charlie thought appellant would just keep insisting, he walked back toward appellant. Appellant said to Charlie, "Give me your wallet." Charlie told appellant that he did not have one. Appellant said, "Your ass better not be lying to me." Charlie said he was not lying and turned again to walk back to school.
Charlie turned around to see if appellant was following him. He saw appellant pull up one leg of his shorts to reveal a gun in a holster on his right thigh. Appellant came close to Charlie with the gun pointed toward the ground. Appellant again demanded Charlie's wallet. Because Charlie was scared, he handed appellant his wallet. Appellant put the gun in his armpit and took the wallet. Appellant opened the wallet, removed approximately $60, and tossed the wallet behind Charlie.
Charlie turned around and picked up his wallet. As he walked away, he looked back to see if appellant was following him. Charlie saw that appellant seemed about to enter an apartment building. The next time Charlie looked back, appellant was gone.
Before the robbery, Charlie had no relationship with appellant, but he had seen appellant approximately seven times hanging around in front of his school with other kids. Charlie did not know appellant's name, but he had heard that appellant was called "Ghost." When Charlie had seen appellant on the prior occasions, he noticed that appellant had some bullet holes tattooed on the left side of his neck. He also noticed tattoos on appellant's forearms in old English script. During the robbery, Charlie saw the bullet hole tattoos on appellant's neck.
Charlie did not tell anyone about the robbery because he feared retaliation. He was afraid for himself and his family. Approximately a week after the robbery, he heard a noise in his backyard and insisted to his mother that he had to find out what it was. Charlie's mother kept asking him why he had to do that. Charlie then told her about the robbery.
Charlie's mother went to see his school counselor, Seth Hankison, on the following day and told him about the robbery. Hankison spoke with Charlie and told him he should report the incident to Officer Leonard Boen of the school police. Because Charlie was still afraid, he did not do so.
Approximately three weeks after the robbery, Charlie and his mother saw appellant crossing the street as they were stopped at an intersection near the school. Charlie's mother asked him if appellant was a student at the school. Charlie put his head down and said, "Mom, please don't look at that man." He asked her to just keep driving. Later that day Charlie reported the robbery to Officer Boen and said that the robber was Ghost.
Appellant was known to Officer Boen. Officer Boen had seen appellant hanging around the school prior to the date of the robbery. Officer Boen had seen him at the 7-Eleven store, in an alley on the south side of the school, and in a shopping center on the north side of the school. For approximately three weeks after the date of the robbery, Officer Boen did not see appellant hanging around the school. On the day Charlie reported the robbery, Officer Boen had seen appellant again. Officer Boen submitted a report on the robbery to the Devonshire Division of the Los Angeles Police Department. Approximately two days later, when shown a photographic lineup, Charlie identified appellant as the man had who had robbed him. Police located appellant and arrested him.
Defense Evidence
Justin Gross was out with appellant at several clubs on the evening of November 12, 2009, and they ended up at Gross's apartment. They drank together until about 6:00 a.m. on November 13, 2009. When Gross woke up between 8:00 and 9:00 a.m., appellant was still sleeping on the couch. Appellant did not leave Gross's apartment until approximately 1:00 p.m.
DISCUSSION
I. Consideration of Mitigating Factor
A. Appellant's Argument
Appellant claims that the trial court abused its discretion because it failed to specifically state at sentencing that it had considered appellant's proffered mitigating circumstance that he exercised caution to avoid harm in his use of the gun.
B. Relevant Authority
A trial court's sentencing decision is subject to review for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) A trial court abuses its discretion if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for the decision. (Ibid.)
The trial court is presumed to have considered all relevant factors unless the record affirmatively shows the contrary. (Cal. Rules of Court, rule 4.409; People v. Weaver (2007) 149 Cal.App.4th 1301, 1318; People v. Kelley (1997) 52 Cal.App.4th 568, 582.) The trial court must state on the record the facts and reasons for its selection of one of the three authorized sentence terms. (§1170, subd. (b); Cal. Rules of Court, rule 4.406(b)(4).)
C. No Abuse of Discretion
We first observe that appellant has forfeited his claim that the trial court failed to consider his exercise of caution, since he did not object to the sentence based on this ground. In People v. Scott (1994) 9 Cal.4th 331, our Supreme Court held that "the waiver doctrine should apply to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons." (Id. at p. 353.)
In any event, appellant's argument fails. At sentencing, appellant told the court that he "exercised caution to avoid harm to persons or damage to property, or that amounts to money or property taken were deliberately small and no harm was done against the victim, which is a mitigating factor as provided in California Rules of Court 4.423(a)(6)." After appellant had finished his entire allocution and the prosecutor had argued for the high term, the trial court stated, "Both sides cited California Rules of Court, rule 4.421, circumstances in aggravation, and rule 4.423, circumstances in mitigation. All these factors need not be weighed one against the other. I just need to state reasons. I reject the mitigation that was proffered by the defendant. I do reject most of the aggravation that was proffered by the People. I do make the following findings only: Defendant has three prior felony convictions, including prior felony conviction, which was not utilized for the purposes of Penal Code section 667.5, subdivision (b), and that is a Orange County felony conviction. And that he was on parole at the time of the commission of this offense. Consequently, the high base term is warranted."
The record thus shows that the trial court heard and considered appellant's mitigating circumstances, including the one to which he specifically alludes. Sentencing courts have wide discretion in weighing aggravating and mitigating factors, and may balance them against each other in qualitative as well as quantitative terms. (People v. Oberreuter (1988) 204 Cal.App.3d 884, 887, disapproved on another point in People v. Walker (1991) 54 Cal.3d 1013, 1022.) The trial court's failure to specifically mention a mitigating factor cannot be construed as a failure to consider it. (People v. White, supra, 117 Cal.App.3d at p. 280.) Furthermore, alleged factors in mitigation are often disputable because they may not be mitigating under the circumstances of a particular case. (In re Handa (1985) 166 Cal.App.3d 966, 973.) In this case, appellant pulled a gun on an unarmed child in order to rob him, and he took all the money he found. Although he kept his gun pointed downward, the potential for harm was still great. "Where an alleged factor in mitigation is disputable, the court may find an absence of mitigating factors and need not explain the reason for its conclusion. [Citations.]" (Ibid.) Moreover, a single aggravating factor, established by a preponderance of the evidence, may warrant imposition of the upper term. (People v. Steele (2000) 83 Cal.App.4th 212, 226.)
In sum, the trial court did not abuse its discretion by rejecting appellant's mitigating factors. (People v. Holguin (1989) 213 Cal.App.3d 1308, 1317; People v. Jones (1985) 164 Cal.App.3d 1173, 1181; People v. White (1981) 117 Cal.App.3d 270, 280, disapproved on another point in People v. Scott, supra, 9 Cal.4th at pp. 352-353 & fn. 16.) The trial court was only required to state the primary factor or factors that supported its exercise of discretion, which the court in this case clearly stated. (People v. Sandoval, supra, 41 Cal.4th at p. 851.) Appellant's claim is without merit.
II. Trial Court's Failure To Mention Parole
A. Appellant's Argument
Appellant contends that the failure to consider the mitigating factor discussed ante was compounded by the trial court's failure to advise him that he would be subjected to a period of parole after serving his prison term.
B. Relevant Authority
Section 1170, subdivision (c) states in pertinent part that, "[t]he court shall also inform the defendant that as part of the sentence after expiration of the term he or she may be on parole for a period as provided in Section 3000."
C. Harmless Error
The record contains no mention of a period of parole. As appellant points out, the failure to advise a defendant of the parole period is error, but the error must be deemed prejudicial in order to obtain relief. (People v. McMillion (1992) 2 Cal.App.4th 1363, 1368-1370 (McMillion).)
In this case, appellant cannot show that the trial court's failure to inform him of his period of parole resulted in prejudice. In McMillion, the defendant had entered into a plea agreement, and he argued that imposition of a parole period violated that agreement. (McMillion, supra, 2 Cal.App.4th at pp. 1366, 1368.) The court held that the defendant was not prejudiced by the court's failure, since it was unlikely he would have entered a different plea had he been advised of the mandatory parole period. (Id. at p. 1371.) In the instant case, appellant made no bargain. He was convicted by a jury, and the trial court had no discretion to impose a prison sentence without a period of parole, which is required by section 3000. (McMillion, at p. 1369.) "Unless waived by the Board of Prison Terms, the parole period following imprisonment is mandatory under section 3000." (Id. at p. 1368.) Accordingly, appellant would not have achieved a better result if the trial court had not inadvertently failed to inform him of this requirement. The trial court's error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) Finally, we reject appellant's claim that the trial court's errors during sentencing constitute cumulative error warranting a remand for resentencing.
Section 3000, subdivision (a)(1) provides: "The Legislature finds and declares that the period immediately following incarceration is critical to successful reintegration of the offender into society and to positive citizenship. It is in the interest of public safety for the state to provide for the effective supervision of and surveillance of parolees, including the judicious use of revocation actions, and to provide educational, vocational, family and personal counseling necessary to assist parolees in the transition between imprisonment and discharge. A sentence pursuant to Section 1168 or 1170 shall include a period of parole, unless waived, or as otherwise provided in this article."
--------
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN
P. J.
We concur:
DOI TODD, J.
CHAVEZ, J.