Opinion
E070759
11-21-2019
THE PEOPLE, Plaintiff and Respondent, v. LARRY LEE MILLER, Defendant and Appellant.
David M. McKinney, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Eric A. Swenson, Allison V. Acosta, Kristine A. Gutierrez and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF118782) OPINION APPEAL from the Superior Court of Riverside County. Dennis A. McConaghy, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. David M. McKinney, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Eric A. Swenson, Allison V. Acosta, Kristine A. Gutierrez and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
In December 2005, a jury convicted defendant and appellant Larry Lee Miller of first degree murder (Pen. Code, § 187, subd. (a), count 1) and attempted first degree murder (§§ 664, 187, subd. (a), count 2). On March 17, 2006, a trial court sentenced him to 25 years to life on count 1 and a consecutive seven years to life on count 2. We affirmed the judgment. (People v. Miller (Apr. 30, 2008, E040249) [nonpub. opn.].) In 2014, the Supreme Court held that a criminal defendant may not be convicted of first degree premeditated murder as an aider and abettor under the natural and probable consequences doctrine. (People v. Chiu (2014) 59 Cal.4th 155, 158-159 (Chiu).) Defendant petitioned this court to vacate his first degree murder conviction in count 1 under Chiu. This court denied defendant's writ without prejudice and directed him to seek relief under Chiu by filing a petition in the trial court. (In re Miller, Aug. 31, 2017, E068955) Defendant did so, and, on December 22, 2017, the trial court reduced count 1 to second degree murder, as agreed upon by the People. On May 25, 2018, the court resentenced defendant to 15 years to life on count 1 and a consecutive seven years to life on count 2.
All further statutory references will be to the Penal Code, unless otherwise noted.
We take judicial notice of our prior unpublished opinion. (Evid. Code, §§ 452, subd. (d) & 459, subd. (a).)
On appeal, defendant argues that: (1) the trial court erred by not considering his commendable postconviction, in-custody conduct at resentencing, when determining whether to run the terms on counts 1 and 2 concurrently or consecutively; (2) at the resentencing hearing, the court erred in not specifying its reasons for imposing consecutive terms; and (3) at the original sentencing hearing in 2006, the court erred in relying on an impermissible factor to impose consecutive terms. Defendant requests that we remand for resentencing again. We affirm the judgment.
FACTUAL BACKGROUND
We reiterate verbatim the facts as set forth at pages 3 through 6 of our prior unpublished opinion: On Sunday, August 15, 2004, defendant called Johnny Casper, a friend, who had agreed to give defendant's sister a bid on a new air conditioning unit that day. Defendant became angry at Casper because he refused to go with defendant to defendant's sister's house in Orange County to give her the bid. Defendant called Casper numerous times over a 20-minute period. Initially, Casper hung up on defendant but then became angry and started yelling.
Defendant decided to go over to Casper's home and confront him. Anticipating there would be a fight, defendant asked Baillie to accompany him as back-up in the likelihood there would be a fight. Baillie picked up defendant and took him to Casper's house in Riverside.
Twenty minutes after defendant stopped calling Casper, defendant showed up at Casper's front door with Baillie. Casper went outside and he and defendant angrily argued, cursed at each other, and started fighting. Casper's brother-in-law, Gregory Loza, stood behind Casper during the altercation. Baillie pulled out a gun and fired it seven times.
Baillie shot Loza three times, in the stomach, arm and side. One of the bullets lodged in Loza's spine, but he survived. Casper was also shot three times and died. One bullet passed through his intestines, aorta, and right kidney. A second bullet passed through his back and entered his arm. The third bullet caused a superficial arm wound. The seventh bullet went through the front of Casper's house.
Defendant and Baillie fled. Officers arrived at the scene and found Loza lying in front of the house, bleeding profusely, and Casper lying inside his home nonresponsive.
Defendant and Baillie abandoned Baillie's car and Baillie's girlfriend picked them up and drove them to defendant's house. Defendant's roommate, John Coe, testified that when defendant returned home, defendant told Coe, "[W]e blasted him." Defendant also mentioned being "on the run." Defendant took some clothes and left with Baillie in defendant's van.
Baillie's girlfriend testified she heard defendant say to Baillie, "You forgot to ask him if that hurt."
Two days later, defendant turned himself in to the police and gave a videotaped statement, admitting he went to Casper's house to confront him because Casper had refused to give defendant's sister an air conditioning bid and had hung up on him. Defendant asked Baillie to accompany him because defendant knew Baillie would back him up if he needed help fighting Casper. When Casper stepped outside the front door, he got too close to defendant. Defendant told him to step back. As Casper swung at defendant and defendant ducked, defendant saw Baillie pull out a gun and fire it. Defendant and Baillie then fled in Baillie's car.
Smith, who interviewed defendant, testified that defendant said he thought Baillie might be carrying a gun because he normally carried it, but had no idea Baillie was going to shoot Casper. Defendant said that he was aware there had been tension between Baillie and Casper because Baillie purchased a car from Casper and believed he had paid it off but Casper claimed Baillie still owed him $200.
Defendant testified he had seen Baillie with a handgun several times prior to the shooting incident, once a month before the incident, and another time three months before the shooting. Defendant had told Baillie he did not want the gun in his home. Defendant also knew Baillie was not on good terms with Casper because of a dispute with Casper over the purchase of a car. Defendant claimed he had no idea Baillie was going to shoot. Defendant was shocked Baillie had fired his gun and denied saying, "[w]e blasted them." Defendant also denied telling Smith that Baillie always had a gun. Defendant claimed he had said he thought he might have one.
ANALYSIS
I. The Court Properly Exercised its Discretion in Resentencing Defendant
Defendant contends the trial court was required by law to consider his commendable prison conduct record in deciding whether to impose consecutive or concurrent terms upon resentencing. He claims the court mistakenly believed it could not consider his prison conduct record and prejudicially erred in not doing so. Thus, he argues the matter must be remanded for resentencing again. We disagree and conclude that the court properly exercised its discretion.
A. Defendant's Sentencing and Resentencing Hearings
At the original sentencing hearing on March 17, 2006, the court stated that it read both the defense motion for new trial and the People's opposition. The parties briefly argued the motion. The court then allowed the victim's family members to speak. Next, the prosecutor argued for consecutive sentencing, since there were two separate victims who had to suffer physical, emotional, and psychological pain at the time of the incident, and one now had to live with a physical disability for the rest of his life. Defense counsel argued for concurrent sentencing, since defendant was "not the person who pulled the trigger and caused the death of Mr. Casper." The court sentenced defendant to 25 years to life on count 1, and seven years to life on count 2. It ran the terms consecutively, stating: "And I am going to run those consecutively just because of the facts of the case, that this was so unneeded. And I do believe that [Baillie . . .¶] was taken there because he was the one that carried the gun."
We note that the title page of the reporter's transcript erroneously cites the date of the original sentencing hearing as March 17, 2016. However, page 4 of the reporter's transcript cites the date as being March 17, 2006.
The court held a resentencing hearing on May 25, 2018, and acknowledged that it had read the People's resentencing brief, statement in aggravation, and defendant's two sentencing briefs, along with "a multitude of accolades from people in the state prison system." The court noted that the parties were there for resentencing on count 1, and the prosecutor stated that the only question was whether to impose consecutive or concurrent sentencing. The victim's family members spoke about how much the victim's death affected everybody, including his children, who witnessed him being killed. The family members asked the court not to reduce defendant's sentence.
The prosecutor then argued that the court weighed the factors in aggravation and mitigation at the original sentencing hearing and correctly determined that consecutive sentencing was appropriate. He asserted that none of the facts of the offense had changed, and defendant's actions, manipulations, and culpability were exactly the same now as they were then. The prosecutor noted the only thing that had changed was that defendant decided to take advantage of the programs in prison. However, the prosecutor argued that "we expect inmates to behave when they reach the prison system" and to "take advantage of the programming that is offered to them that they are continually encouraged to participate in." The prosecutor contended that, while defendant's conduct in prison should be commended, it was "more appropriate for him to advance and present to a parole board, rather than to [the court] at the sentencing." The prosecutor further noted the rules that guided the imposition of sentencing (Cal. Rules of Court, rules 4.425, 4.421, and 4.423) did not list conduct in prison as a factor to consider for concurrent or consecutive sentencing. He further argued that the good things defendant did in prison were commendable, but "in no way shape or form outweigh[ed] the factors in aggravation, which made . . . consecutive sentencing the appropriate sentence." The prosecutor reiterated that the number of classes a prisoner takes or his conduct in custody was "something more appropriate for a parole hearing to heavily weigh, not for this Court to heavily weigh."
Defense counsel responded that his briefing explained why this case should have concurrent sentencing, under California Rules of Court, rule 4.425. Defense counsel also pointed out that there was a factor in aggravation/mitigation concerning whether a person's prior performance on probation was satisfactory. He asserted that defendant had been exemplary in prison, tried to reach out to Casper's family and Loza, and wrote letters of apology. Defendant also educated himself, attended victim's awareness groups, and anger management. He did not commit any violent acts while in custody.
In making its decision, the court stated: "The jury heard the facts. The Court heard the facts. The Court weighed the aggravating factors and the mitigation factors, and I'm not going to repeat those now, because I don't think I have to. And I'd have to pull up the transcript in order to even tell you what was exactly said. But the issue now is simply resentencing on Count 1 . . . whether it could be consecutive or whether it should be concurrent." The court went on to say that defendant "ha[d] done a remarkable job in state prison . . . [a]nd the parole board, if and when it gets to that point, is probably going to give that a lot of weight . . . . But I'm not going to give it any weight here, because I don't think it's appropriate to do so." The court then sentenced defendant to 15 years to life on count 1 and ordered that the term of seven years to life on count 2 be run consecutively. The court asked if there was anything else that either side wanted to put on the record, and both parties said no.
B. Relevant Law
"Section 669 grants the trial court broad discretion to impose consecutive sentences when a person is convicted of two or more crimes." (People v. Shaw (2004) 122 Cal.App.4th 453, 458.) Such discretion will not be disturbed on appeal absent the showing of an abuse of discretion. (People v. Morales (1967) 252 Cal.App.2d 537, 547.)
Factors affecting the decision to impose consecutive rather than concurrent sentences include facts relating to the crimes, such as: (1) whether or not "the crimes and their objectives were predominantly independent of each other"; (2) the crimes "involved separate acts of violence"; or (3) the "crimes were committed at different times or separate places, . . ." (Cal. Rules of Court, rule 4.425, subd. (a).) However, this list of factors is not exhaustive. A trial judge can use additional criteria "reasonably related to the decision being made" and "[a]ny such additional criteria must be stated on the record by the sentencing judge." (Cal. Rules of Court, rule 4.408.) "[T]he court may properly consider all matters affecting a defendant being resentenced up to and including the date of resentencing." (Van Velzer v. Superior Court (1984) 152 Cal.App.3d 742, 744 (Van Velzer).)
C. The Court Considered Defendant's Conduct in Prison and Exercised its Discretion in Not Giving it Any Weight
Defendant's claims that the court mistakenly believed it could not consider his favorable prison conduct record, and that it erred in failing to do so, are not supported by the record. He argues that the court was required by law to consider his in-custody conduct in resentencing him. In support of his argument, he primarily relies upon Van Velzer, supra, 152 Cal.App.3d 742 and People v. Tatlis (1991) 230 Cal.App.3d 1266 (Tatlis). In Van Velzer, the appellate court issued a writ of mandate directing the trial court to consider at resentencing all materials, including a new probation report, relating to the defendant "up to and including the date of resentencing." (Van Velzer, at p. 745.) In Tatlis, the trial court denied the defendant's request for a current probation report before resentencing him. (Tatlis, at p. 1269.) The appellate court concluded that the sentencing court abused it discretion in denying the request, stating that "the court should consider all mitigating circumstances in imposing sentence." (Id. at p. 1274.)
Here, unlike Tatlis, supra, 230 Cal.App.3d 1266, the court did not deny a request for a current probation report. Nonetheless, we agree that a court should consider materials relating to a defendant up to resentencing. (Van Velzer, supra, 152 Cal.App.3d at p. 745.)
Defendant specifically contends the court "mistakenly believed it could not consider his extensive prison record in deciding whether to impose consecutive sentences upon resentencing." (Italics added.) He appears to be arguing that the court misunderstood its sentencing discretion. In support of this claim, he asserts the prosecutor argued for consecutive sentencing and pointed out that the rules of court do not list prison conduct as a mitigating factor. The prosecutor also argued that, although defendant's conduct in prison should be commended, "it [did] not change and should not change the sentencing in this case." Defendant asserts the prosecutor concluded that prison conduct is "more appropriate for a parole hearing to heavily weigh, not for this court to heavily weigh," and the court came to the same conclusion. Defendant emphasizes that the court made the following statement: "I'm not going to give [defendant's remarkable job in state prison] any weight here, because I don't think it's appropriate to do so."
"Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] [¶] Remand for resentencing is not required, however, if the record demonstrates the trial court was aware of its sentencing discretion. [Citations.] Further, remand is unnecessary if the record is silent concerning whether the trial court misunderstood its sentencing discretion. Error may not be presumed from a silent record. [Citation.] ' "[A] trial court is presumed to have been aware of and followed the applicable law." [Citations.]' " (People v. Brown (2007) 147 Cal.App.4th 1213, 1228-1229.)
The record here does not reflect that the court misunderstood its discretion to consider defendant's favorable prison record in deciding whether to sentence concurrently or consecutively. Defense counsel submitted a resentencing brief and attached evidence of all the courses and programs defendant had completed in prison. At the outset of the resentencing hearing, the court expressly acknowledged that it read "defendant's sentencing brief with a multitude of accolades from people in the state prison system." The court also heard the prosecutor's argument that, although defendant's prison record was commendable, it did not outweigh the factors in aggravation "which made [the court's] consecutive sentencing the appropriate sentence." The court heard and considered defense counsel's argument in favor of concurrent sentencing. Thus, the record indicates that the court did consider his conduct while in custody.
In making its decision, the court commended defendant for doing a "remarkable job in state prison." However, it simply decided to run the terms consecutively, stating: "I'm not going to give [defendant's remarkable job in state prison] any weight here, because I don't think it's appropriate to do so." Notably, the court did not say: I can't give his prison conduct record any weight here. Thus, its statement does not reflect a mistaken belief that it could not consider defendant's prison conduct. Rather, the court said it was not "going" to give it any weight because it did not think it was "appropriate" to do so. This comment demonstrates that the court recognized and considered defendant's in-custody record, but chose not to give it any weight. In other words, the court properly exercised its discretion to impose the terms consecutively.
On this record, we see no abuse of discretion. Therefore, remand for another resentencing hearing is not required.
II. Defendant Forfeited His Additional Claims
Defendant next contends the trial court erred by failing to state its reasons for imposing consecutive sentencing and instead adopting by reference the factors it relied on when it initially sentenced him in 2006. Furthermore, he argues that, in 2006, the court relied on an "impermissible factor" that was unsupported by the record, to impose consecutive terms. Defendant has forfeited both claims.
To the extent defendant is contending the court erred by failing to specifically state on the record the reasons for its sentencing choice, he has forfeited this claim by failing to raise it in the trial court. (People v. Morales (2008) 168 Cal.App.4th 1075, 1084; People v. Scott (1994) 9 Cal.4th 331, 353 (Scott) ["[T]he waiver doctrine should apply to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices."].) In his reply brief, defendant argues that his failure to object should not be fatal, since an objection would have been futile. (See People v. Hill (1998) 17 Cal.4th 800, 820.) He claims that the court "was convinced, and stated so with absolute certainty, that it was not required to give reasons for its decision." The court did state that it previously weighed the aggravating and mitigating factors at the original sentencing hearing, and it was not going to repeat them, since it did not think it had to. However, it is speculative to assert that asking the court to state the reasons on the record would have been futile.
As to defendant's argument that the court erred by imposing consecutive terms based on an "impermissible factor" in 2006, he has also forfeited this claim. He specifically states that, in 2006, the court's reason for imposing consecutive terms was that he had taken Baillie along, since Baillie "was the one that carried the gun." Defendant argues that the court erred in relying on this factor, since it was unsupported by the record. However, he did not object to this factor at the original sentencing hearing in 2006. He also failed to object to it at the resentencing hearing in 2018. (Scott, supra, 9 Cal.4th at pp. 354-355 [failure to object that reasons used for sentencing "were inapplicable, duplicative, and improperly weighed" waived the claim on appeal].)
In his reply brief, defendant argues that "by challenging the factors set forth by the prosecutor and adopted by the sentencing court, defense counsel did, in effect, object to the reasons relied upon by the court." (Italics added.) Although defendant did argue in favor of concurrent sentencing in his resentencing brief and resentencing reply brief, citing factors listed in California Rules of Court, rule 4.425, the record does not reflect that he objected to the specific reason he now takes issue with. In any event, defendant failed to object to the factor when the court originally sentenced him in 2006.
Moreover, defendant did not raise this issue in his previous appeal. (People v. Senior (1995) 33 Cal.App.4th 531, 538 ["[W]here a criminal defendant could have raised an issue in a prior appeal, the appellate court need not entertain the issue in a subsequent appeal absent a showing of justification for the delay."].) Defendant has shown no justification for the delay in raising this claim; therefore, it is waived. (Ibid.)
In his reply brief, defendant further contends, for the first time, that the court relied upon factors viewed as valid in 2006, but are no longer valid, since his first degree murder conviction was overturned after the law changed. He argues that the court imposed consecutive terms on "what is effectively a natural and probable consequence theory." However, "[w]ithholding a point until the reply brief deprives the respondent of an opportunity to answer it, however. Hence, a point raised for the first time therein is deemed waived and will not be considered, unless good reason is shown for failure to present it before." (People v. Baniqued (2000) 85 Cal.App.4th 13, 29, fn. omitted.) No good cause is shown here.
Finally, we note that, even if the trial court did rely on an improper factor in sentencing defendant consecutively, any error was harmless. Only a single aggravating factor is required to impose a consecutive sentence. (People v. Osband (1996) 13 Cal.4th 622, 728-729.) The Supreme Court in People v. Calhoun (2007) 40 Cal.4th 398, 408, stated that there is no persuasive reason why the trial court should not be allowed to consider the fact of multiple victims as a basis for imposing a consecutive sentence. (See People v. Leung (1992) 5 Cal.App.4th 482, 504 ["[T]he culpability of the defendant who victimizes multiple individuals is greater than the culpability of a defendant who victimizes a single individual."].) As the People argued at the original sentencing hearing, there were two separate victims who had to suffer pain at the time of the incident.
We conclude that resentencing is not required.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.