Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Los Angeles County No. KA068413. Bruce F. Marrs, Judge. Affirmed.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell, Lawrence M. Daniels, Lance E. Winters, and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, J.
Albert L. Moran (defendant) appeals from the judgment entered following a jury trial resulting in his conviction of elder abuse. (Pen. Code, § 368, subd. (b)(1).) The trial court found that defendant had a 1971 conviction for attempted murder qualifying him for sentencing pursuant to the “Three Strikes” law. (§§ 667, subds. (b)–(i); 1170.12.) Before sentencing, defendant requested that the trial court exercise its discretion to strike his prior felony conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The trial court denied the motion and sentenced him to an aggregate eight-year term in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
He contends that (1) the trial court abused its discretion by permitting defendant to be impeached with his prior felony conviction, (2) the trial court abused its discretion by refusing to strike the prior felony conviction pursuant to Romero, (3) the trial court erred by failing to consider a grant of probation, (4) there are sentencing errors requiring a reversal, and (5) there is Blakely error (Blakely v. Washington (2004) 542 U.S. 296 (Blakely)).
After the initial briefing was completed, the parties submitted supplemental briefing on the effect the decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856 (Cunningham) had on defendant’s Blakely contention. On March 5, 2007, submission was vacated. On August 1, 2007, this court requested further briefing on the effect of the decisions in People v. Black (2007) 41 Cal.4th 799 (Black II), and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval) on the Blakely contention. The parties filed further supplemental briefing, and the cause was resubmitted on September 18, 2007.
The contentions lack merit, and we will affirm the judgment.
FACTS
The information charged defendant with involuntary manslaughter and elder abuse. Also, as to the offense of elder abuse, the information alleged that defendant had proximately caused the victim’s death. (§ 368, subd. (b)(3)(B).) The jury acquitted defendant of involuntary manslaughter and returned a verdict of guilty of elder abuse. The jury found “not true” the elder abuse allegation that defendant had proximately caused the victim’s death.
I. The Prosecution’s Case-in-Chief
When school let out on September 8, 2004, May Siegel and Sidney Siegel (Siegel) went to the Suzanne Middle School in Walnut to pick up their grandson, K.S. The parking lot across from the school was bustling with middle school students, cars, and parents. Cars were lined up attempting to leave the parking lot and to turn onto the street in front of the school. As the Siegels and K.S. were crossing the parking lot, defendant sped in front of them narrowly missing the Siegels. When defendant stopped, Siegel, walked about 20 feet to defendant’s passenger window. Siegel was 80 years old. He yelled through the car window to defendant, “Why didn’t you stop? You saw us crossing? Why didn’t you stop?”
Defendant admitted during his trial testimony that he had replied and called Siegel an “a--h---.” Siegel turned and walked away.
Defendant got out of the car and confronted Siegel. There was a further exchange of words. Defendant started pushing and shoving Siegel with both arms. Siegel reacted defensively, fending off Siegel or flailing at defendant with his arms. After several moments of pushing and shoving, defendant punched Siegel in the face or right temple. As soon as Siegel suffered the blow to his head, Siegel started to collapse. Defendant returned to his car and drove off.
With the assistance of his wife and grandson, Siegel walked to a stop sign and collapsed, losing consciousness. Siegel was transported to the Long Beach Memorial Hospital. He never regained consciousness. Two weeks later, he passed away.
Siegel was five feet nine inches tall and weighed 165 to 170 pounds; defendant was the same height, but was 55 years old and heftier.
Rikki Pruitt, who was near the defendant’s car directing traffic, testified that Siegel had the appearance of a person who was well over age 65. Siegel and his wife moved slowly. After Pruitt heard the children yelling there was a fight, she saw defendant get into his car and speed off.
In addition to presenting the testimony of May Siegel and K.S. as to the events of the confrontation, the prosecution also called three bystanders as witnesses, an adult and two children. The bystanders testified that they saw Siegel fending off defendant and that defendant had then punched Siegel in the head or the face.
II. The Expert Testimony on the Cause of Death
A forensic pathologist testified that the cause of Siegel’s death was pneumonia after Siegel had suffered an ischemic stroke in half of his brain. The pathologist gave his opinion that the blow to the head during the fight was “the precipitating factor” causing the stroke and the other medical issues leading to death. This witness acknowledged that he had never considered Siegal’s medical records.
The defense expert, a well-qualified neurological surgeon who was an experienced emergency room doctor, also gave his opinion on the cause of death. He had considered the Long Beach Memorial Hospital’s medical records before reaching his conclusion. He examined the results of an angiogram taken at the hospital. The surgeon testified that an angiogram of Siegel’s brain unequivocally showed that Siegel had suffered an “internal supraclinoid carotid artery occlusion with subsequent ischemic stroke,” a rare condition that had nothing to do with the infliction of trauma. The surgeon opined that there was no medical basis for finding a linkage between the blow and the occlusion.
III. The Defense
Defendant testified that on the day in question, he had three neighborhood children in his car and was leaving the parking lot in bumper-to-bumper traffic. The pedestrian flow stopped momentarily at Pruitt’s direction. Defendant drove forward to get into line to turn onto the street. At that moment, Siegel, K.S., and May Siegel ran across the driveway in front of his car. He had to slam on his brakes and only narrowly missed hitting K.S. In Siegel’s rush to cross the street in front of defendant, Siegel had also inadvertently pushed another child into defendant’s car.
Siegel started ranting and raving. Siegel walked to the passenger windows of defendant’s car cursing at defendant. Siegel frightened his daughter, M.M., who was his right front passenger as well as R.B., who was seated behind her. Siegel looked in R.B.’s window and called R.B. a “m-----f-----.” Siegel then stuck his head inside M.M.’s window and yelled. Defendant concluded that heat stroke or something else had affected Siegel and that Siegel was dangerous.
Defendant referred to an earlier, unrelated incident, claiming that it was the reason he felt so protective of the children. He said that in 1999, defendant and his daughter, M.M., had been attending a ball game at Dodger Stadium. As they were driving out of the parking lot, a large, young motorist had gotten out of his car and approached defendant. Enraged that traffic was not moving, the motorist choked defendant with his seatbelt and repeatedly punched defendant. To protect defendant, M.M. had thrown herself over him, and the motorist had repeatedly punched her. M.M. had a congenital skin condition making her particularly vulnerable to being cut and scratched.
The present confrontation reminded defendant of that 1991 incident, and defendant did not want his daughter to be beaten up again. Defendant got out of the car. His daughter protested. He replied, “Baby, I need to get this guy away from you.” Defendant confronted Siegel and yelled that Siegel had no right to endanger kids, to push them in front of his car, and to yell at the children in his car.
Defendant claimed that Siegel became physically aggressive, tried to hit and punch him, and threatened to gouge out his eyes. Siegel repeatedly cursed and cut defendant’s arms and belly with some object Siegel had in his hand. Defendant fended off the attack with techniques that he had learned during earlier fist fights. Defendant repeatedly warned Siegel to stay away, but Siegel kept coming at him. Finally, defendant decided to escalate his use of force to keep Siegel away. Defendant pushed Siegel once on the chin, causing Siegel to take several steps backward. Defendant also tried to hit Siegel, but missed and his hand slid across Siegel’s chest. During the melee, Siegel had punched defendant once on the side of his mouth, had jabbed him in the belly, and had slapped him on the face.
The deputy sheriff who arrested defendant said that defendant had shown him two superficial lacerations on his right forearm that could have been defensive wounds. A Polaroid photograph was admitted into evidence showing superficial wounds on defendant’s arm and belly.
Defendant said that after he pushed defendant on the chin, Siegel had said something signaling that he was giving up the fight. Defendant returned to his car and drove off slowly. As defendant drove off, Siegel yelled at him, “I know how to make you pay, and I’m going to f--- you over good.”
Defendant claimed that Siegel looked “60ish,” had dark hair, looked physically fit, and was “pretty quick with his hands.” During the fisticuffs, defendant had been afraid that if he were to be knocked down, Siegel would have hurt the children.
R.B. and M.G., the eighth graders in defendant’s rear car seat, agreed that Siegel yelled into the car, but they could not remember what was said. They said they were frightened and embarrassed by the incident and had ducked under their backpacks. R.B. saw the men “shoving.” M.G. said that he saw Siegel punch defendant in the jaw. Defendant then “came back” and punched Siegel in the lower jaw and in the clavicle.
M.M. testified that during the fisticuffs, Siegel initially was the aggressor, but Siegel’s blows were ineffectual. She observed that when Siegel did not desist in attacking defendant, defendant had “punched [Siegel] once just to keep him away.” Defendant then returned to the car, and they drove off. She recalled the yelling as they drove off.
In rebuttal, Pruitt testified that she was standing next to defendant’s car when he entered his car and drove off. She did not hear Siegel yelling.
IV. Defendant’s Impeachment with the 1971 Prior Conviction
The prosecutor impeached defendant with a 1971 Hawaii prior conviction of attempted murder.
During defendant’s direct testimony, in anticipation of the impeachment, defendant admitted that in 1971 he had suffered the conviction. He explained that at age 18, he had joined the United States Marine Corps. He was a naïve farm boy just off the reservation in South Dakota. He was stationed in Hawaii and assigned to the military police transporting prisoners to and from court. Off duty, he and a Marine friend joined two men to play poker at a private residence. Defendant did not drink, and he was given an alcoholic beverage that he now believes was laced with a drug. He passed out. When he awoke, his Marine friend was holding a bayonet to his throat, and defendant was being sexually attacked by the men. He fought the men off with everything he had. Later, he was arrested and charged with attempted murder. He took the advice of his counsel and of his commanding officer and pled guilty, obtaining a 20-year prison term. He explained that he was actually under confinement for only five years. He spent a year in prison, three years running a hog farm for the state food society, and one year on educational release. Upon his release, he started college. After his release, he earned a bachelor’s degree. Eventually, he also earned a doctorate.
During cross-examination, the prosecutor pointed out that defendant’s testimony during the current trial was that his Marine friend was pointing a bayonet at his throat. But, his friend had also been charged in the case and was his codefendant. Defendant acknowledged that his friend had also pled guilty to attempted murder and had been granted probation.
DISCUSSION
I. The Castro Contention
Defendant contends that the trial court abused its discretion by permitting impeachment pursuant to Castro. (People v. Castro (1985) 38 Cal.3d 301, 314 (Castro).)
We disagree.
A. The Facts
Before trial and immediately before defendant’s testimony, defendant asked the trial court to exclude his prior conviction. Defense counsel argued that the 1971 conviction was 34 years old, and thereafter defendant had suffered no further violations of the law. He urged that the cut-off point in most cases for determining remoteness was 20 years. Defendant claimed that he had been merely defending himself during a homosexual attack and that he was a mere youth when the 1971 incident occurred.
The trial court exercised its discretion and admitted the prior conviction. The trial court said that the whole point of admitting a prior conviction involving moral turpitude was to prevent a witness from testifying with a false aura of veracity. It commented, as follows: “[T]he whole purpose of Proposition 8 was to repeal [the decision in] [People v.] Beagle [(1972) 6 Cal.3d 441] . . . . Prop[osition] 8 . . . carried the language that felony priors should be used for impeachment without limitation. I noted some of my colleagues have chipped away at that, but that’s still the word of the People as I recall. I could be wrong. But I think under our case it’s not identical conduct, and I’m going to agree with myself from yesterday and allow it in.”
B. The Pertinent Legal Principles
A defendant’s prior convictions are admissible in evidence as an aid for the jury to assess credibility if the prior convictions are for crimes involving moral turpitude and the convictions’ probative value substantially outweighs their prejudicial effect. (Castro, supra, 38 Cal.3d at pp. 306–317.) “‘[T]rial courts have broad discretion to admit or exclude prior convictions for impeachment purposes. . . . The discretion is as broad as necessary to deal with the great variety of factual situations in which the issue arises, and in most instances the appellate courts will uphold its exercise whether the conviction is admitted or excluded.’ [Citation.]” (People v. Hinton (2006) 37 Cal.4th 839, 887.)
In exercising discretion in admitting prior convictions, a court is required to consider the following factors: (1) whether the prior conviction reflects on honesty and integrity; (2) whether it is near or remote in time; (3) whether it was suffered for the same or substantially similar conduct for which the defendant is on trial; and (4) what effect admission would have on the defendant’s decision to testify. (People v. Collins (1986) 42 Cal.3d 378, 391; People v. Beagle, supra, 6 Cal.3d at pp. 453–454; People v. Mendoza (2000) 78 Cal.App.4th 918, 925 (Mendoza).)
C. The Analysis
Convictions that are remote in time are not automatically inadmissible for impeachment purposes. (Mendoza, supra, 78 Cal.App.4th at p. 925; People v. Burns (1987) 189 Cal.App.3d 734, 738 [there is no consensus among courts as to how remote a conviction must be before it is too remote].) The prior conviction for attempted murder was highly probative on the issue of defendant’s credibility as that offense is a crime of moral turpitude. (People v. Hinton, supra, 37 Cal.4th at p. 888.) Its remoteness did have a tendency to generally lessen its probative value. Defendant had no other felony convictions, and he claimed that he had led a morally blameless life following five years of confinement. However, defendant’s credibility was an important issue at trial, and his truthfulness was of crucial relevance as defendant claimed self-defense and the defense of others.
Any similarities between the prior conviction and the charges did not require exclusion. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1139.) Defendant told the trial court that in the event the prior conviction was admitted, he wanted to testify about the facts underlying the conviction. Based on defendant’s proffer about the conviction’s circumstances, there were significant differences between the two incidents, including that defendant was 19 or 20 when the other incident occurred and that incident involved his use of alcohol and a claimed attack for the purpose of rape. Further, defendant believed that he was innocent of attempted murder, and he wanted to explain that he was innocent and to show the conviction was a folly of his youth.
Defense counsel told the trial court that admitting the prior conviction would not deter defendant from testifying in defense. The prior conviction was highly probative on an important issue in the case. The trial court reasoned that defendant in this case should not be able to testify with a false aura of veracity, an outcome that Proposition 8 was enacted to prevent. We cannot say that in the above circumstances the trial court abused its discretion by admitting the prior conviction. (See People v. Hinton, supra, 37 Cal.4th at pp. 887–888.)
Defendant argues that the trial court abused its discretion as it used an erroneous legal standard to admit the conviction. Citing the decision in People v. Gurule (2002) 28 Cal.4th 557, 608, defendant argues that because his prior conviction predates the effective date of Proposition 8, the trial court was required to assess admissibility as required by the decision in People v. Beagle, supra, 6 Cal.3d 441. The argument is flawed because defendant has misread Gurule. In Gurule, the Beagle criteria applied because the charged offense occurred before June 8, 1982. The Gurule court held that the date of the charged offense determined whether Beagle or Castro applied, not the date of the prior conviction.
He also asserts that the trial court failed to exercise its discretion pursuant to Evidence Code section 352. The record fails to support his argument. Before the trial court ruled, defendant explicitly argued the proper standard for the ruling mentioning that the trial court was required to consider the factors set out in Mendoza, supra, 78 Cal.App.4th at page 925. Nothing the trial court said during its ruling indicates that the trial court overlooked the rule in Castro, Evidence Code section 352, or the factors in Mendoza. We note that in making its ruling, the trial court specifically mentioned one of the Mendoza criteria, the identity of the prior conviction and the current offenses. The trial court was not required to state its full reasoning process in order to make a proper ruling. As the trial court mentioned the identity criteria, the record reflects the trial court was fully aware of its discretion, and it engaged in the proper balancing process before making the ruling. (People v. Tamborrino (1989) 215 Cal.App.3d 575, 588–589.)
In any event, any error is harmless. At trial, the court limited the jury’s consideration of the prior conviction to credibility. It told the jurors that a prior conviction would not necessarily destroy a witness’s credibility. There was no true dispute that defendant had left his car and initiated the physical confrontation. It was readily apparent that to avoid danger to himself and to the children defendant could have simply permitted Siegel to walk off. The evidence of Siegel’s age and frailty was overwhelming. May Siegel, K.S., and the independent bystanders all testified that Siegel acted only defensively. No witness, except defendant, disputed that defendant had punched Siegel in the head with his fist. Defendant’s justifications for initiating the attack and punching Siegel failed to ring true. The trial evidence so overwhelmingly supports defendant’s guilt that it is not reasonably probable that defendant would have received a more favorable result had the prior conviction been excluded. (Evid. Code, § 353; People v. Watson (1956) 46 Cal.2d 818, 836.)
II. The Romero Motion
Defendant contends that the trial court abused its contention by denying his Romero motion. (Romero, supra, 13 Cal.4th 497.)
The contention lacks merit.
A. The Facts
Defendant filed a Romero motion in which he requested that the trial court strike the prior conviction. To support the motion, defense counsel argued that the circumstances of the prior conviction were mitigating because it arose from a situation in which defendant was acting to avoid or reacting to a homosexual attack. Further, defendant had accepted responsibility for the crime and had served his sentence. After 1971, he suffered no further convictions. In the motion, defendant also argued that the Three Strikes punishment, as applied to him, would constitute cruel and unusual punishment. To support the claim of cruel and unusual punishment, defense counsel cited and discussed the decision in People v. Dillon (1983) 34 Cal.3d 441 (Dillon).
At sentencing, the trial court had before it the probation report and the diagnostic study. Before ruling on the motion to strike, it listened to counsels’ arguments and then denied the motion.
In making a ruling, the trial court said, “In order for me to strike a strike, I have to make a positive finding that the defendant is outside the spirit of the Three Strikes initiative and scheme. And looking at the potential sentences, I do not find the potential sentence to be grossly disproportionate when compared with the culpability of our defendant, even considering his age, his personal characteristics, his state of mind, and the facts of our case.” The trial court attributed the latter part of its remarks to the decision in Dillon.
B. The Pertinent Legal Principles
“The touchstone of the analysis [of whether the trial court properly exercised its discretion in ruling on a Romero motion] must be ‘whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’ ([People v.] Williams [(1998])17 Cal.4th [148,] 161; see also People v. Garcia (1999) 20 Cal.4th 490, 498–499.)” (People v. Philpot (2004) 122 Cal.App.4th 893, 905; accord, People v. Carmony (2004) 33 Cal.4th 367, 376–380 (Carmony).)
“[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion.” (Carmony, supra, 33 Cal.4th at p. 375.) The Supreme Court in Carmony explained that “a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.) Further, that Court said that the Three Strikes law “not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm” (id. at p. 378), and, in doing so, it “creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.” (Ibid.)
C. The Analysis
Defendant raises several arguments. He urges that the trial court failed to consider the many factors in mitigation, including that he was a devoted family man, he was 55 years old, he had made tremendous personal contributions to his community and church, he had counseled and tutored children, he had attended college, and he had recently earned a doctorate degree in religious studies. He claims that the age of his prior conviction, its circumstances, and the nature of the current offense balanced in his favor. He asserts that the diagnostic report was favorable, and that the psychologist’s contingent recommendation for state prison was based upon an erroneous understanding of the facts of the current conviction. He argues that the trial court improperly used a proportionality analysis in considering whether or not to strike, instead of following the controlling authorities on how a trial court is to exercise its Romero discretion. Further, he claims that the trial court improperly relied on aggravating factors “as a strategy for maximizing” defendant’s sentence.
The contention amounts to nothing more than an effort to have this court second-guess the trial court and substitute its own opinion as to leniency, something this reviewing court cannot do. (People v. Williams, supra, 17 Cal.4th at pp. 158–161; see also People v. Garcia (1999) 20 Cal.4th 490, 503; Romero, supra, 13 Cal.4th at pp. 529–531; People v. Myers (1999) 69 Cal.App.4th 305, 310.)
1. Use of Aggravating Factors to Maximize the Sentence
There is no evidence in this record that the trial court improperly relied on aggravating factors “as a strategy for maximizing” the sentence. Nor does it appear that the trial court used an erroneous legal standard to deny defendant’s Romero motion. The trial court’s comments were merely responsive on the one hand to his Romero claim, and on the other hand, to the Dillon claim asserting cruel and unusual punishment.
2. The Trial Court’s Exercise of Discretion
The trial court was not obligated to strike because the diagnostic study recommended probation. (People v. Warner (1978) 20 Cal.3d 678, 683; People v. Downey (2000) 82 Cal.App.4th 899, 910.) The associate warden’s recommendation was not relevant to the trial court’s ruling on Romero as it did not address the issue of the appropriateness of defendant’s punishment as a Three Strikes offender.
Defendant complains that “the [trial] court’s decision-making process was the opposite of what it should have been”—“[f]irst the court decided what sentence it wanted to impose [and] then it decided that in order to achieve that sentence it could not afford to strike the strike.” But defendant has not supported this complaint with any citations to the record. Our review of the record discloses no indication that the trial judge improperly prejudged the length of defendant’s sentence. As such, we decline to address this complaint. (Cal. Rules of Court, rule 14(a)(1)(C); People v. Dougherty (1982) 138 Cal.App.3d 278, 282.)
There is no indication that the trial court failed to consider all mitigating factors or that it improperly considered Siegel’s death in considering the motion to strike. A trial court “is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary.” (People v. Myers, supra, 69 Cal.App.4th at p. 310.) Here, the trial court heard the trial evidence, it read defendant’s motion, the diagnostic study, and the probation report, and it listened to defense counsel’s arguments. There is nothing in the record to suggest that the trial court did not consider the mitigating evidence proffered. Nor is there any indication that the trial court, contrary to the jury’s verdict, used Siegel’s death as a reason to deny the motion.
3. Balancing Factors in Mitigation and Aggravation
Defendant urges that the trial court should have struck the prior conviction and treated him as a first-time offender because the prior conviction was remote in time and his current conviction was not particularly serious. The record fails to support the argument. The trial court had no duty to strike the prior conviction merely because it was 35 years old. The prior conviction involved a similar assaultive offense. Defendant attempted to persuade the trial court of his innocence in that matter. But defendant claimed a memory loss with respect to how the stabbing had occurred and that he had plead guilty to an offense with a 20-year term in spite of his innocence. He was impeached at trial with regard to his claim of innocence. We have no doubt that the trial court considered the prior conviction at face value, as it was entitled to do. (See People v. Warner, supra, 20 Cal.3d at p. 683.) We cannot conclude that it was an abuse of discretion for the trial court to determine that defendant fell within the Three Strikes sentencing scheme in spite of the lapse of time between the two similar convictions.
Furthermore, the current offense was not a minor felony. It was an unprovoked assault with fists on an 80-year-old person. Defendant was 55 years old and was probably physically fit as he worked as a handyman and a carpenter. By comparison, Siegel was frail, and the incident was such that it seriously risked the infliction of great bodily injury.
The trial court may have declined to grant leniency for another reason. Defendant’s explanation for the attack did not ring true. At sentencing, defendant never provided the trial court with a frank explanation for his conduct. If he had truly believed that he had to protect himself and the children from Siegel, his beliefs did not conform to reality. It appeared more likely that defendant simply acted impulsively after he felt embarrassed or humiliated in front of his daughter. Both scenarios suggested that defendant fell within the Three Strikes sentencing scheme as he was dangerous and likely to reoffend.
We conclude the trial court had sufficient discretion in this case to deny the Romero motion. Defendant’s current offense was troubling, and because of defendant’s inability to be frank, the trial court was unable to assess more precisely the danger defendant posed to society. Defendant had performed many good works during his lifetime. But society’s interests in this case weighed more heavily in the balance and supported the trial court’s determination that defendant should not be sentenced as if he were a first-time offender.
III. Eligibility for Probation
Defendant contends that he is entitled to be reconsidered for a grant of probation because the trial court abused its discretion by refusing to strike his prior conviction. We concluded in part II of the discussion, that the trial court properly exercised its discretion by denying the Romero motion. Consequently, we find this contention to be meritless.
IV. The Claimed Sentencing Error
Defendant makes a shotgun challenge to the trial court’s choice of the upper term of four years in computing defendant’s Three Strikes term of eight years. Essentially, he argues the following: (1) some aggravating factors are improper as they encompass the elements of the offense, (2) substantial evidence failed to support some of the aggravating factors, (3) the trial court abused its discretion as it “impliedly relied on victim bereavement” as a factor in aggravation, and (4) the trial court ignored the numerous factors and highly persuasive evidence in mitigation.
We conclude the contention is waived. Even if we addressed defendant’s contention on the merits, we would not order a reversal and resentencing.
A. Background
At sentencing, the trial court considered a probation report and a diagnostic study. We do not summarize the probation report as it fails to contain any relevant information.
The diagnostic study revealed that defendant is a part-time handyman and a stay-at-home father and serves as an ordained minister in a local church. He has a 1979 college degree and a 2004 doctorate in religious studies.
During the diagnostic study’s preparation, defendant told the corrections counselor that he acted in self-defense and that Siegel had grabbed his daughter. This version of the offense was inconsistent with the versions told by the numerous trial witnesses and with defendant’s own trial testimony. Defendant claimed that for nearly 30 years he had been involved “in the Ministry” and that he and his wife helped as many local senior live-ins as possible. He explained that he was devastated by the conviction, and it was “against everything that we are trying to do for others.”
After considering the material disclosed during the interview, the correctional counselor recommended a prison term. She based her opinion on the seriousness of the offense, the victim’s loss of life, and the commission of the offense in front of so many children. She suggested the trial court consider at sentencing that defendant was “open and forthright” with her, that he had stable family ties, and that over the years, he had tried to help his community.
The Department of Corrections psychological evaluator noted defendant’s humble beginnings: defendant was a Native American born on a Sioux reservation. The evaluator said that defendant had type II diabetes, hypertension, and arthritis, and that in childhood, defendant suffered two injuries resulting in a loss of consciousness. Defendant said that his wife was a physician and that they were devoting their later years to helping seniors. Defendant admitted that he had hit Siegel and claimed remorse. The evaluator observed that defendant behaved normally and was of above average intelligence and that there was a significant difference between defendant’s version of the incident and the versions testified to by others.
The evaluator concluded that there was a low risk of recidivism because (1) defendant’s prior conviction was 30 years old, (2) defendant had a sporadic employment history, but had been supporting himself in California for 20 years, and (3) the crime was an impulsive act. The evaluator explained that defendant may have acted because of a personality disorder limiting his focus to the moment, or that he might be unable to understand the needs of others, except in a distant, idealistic way. The evaluator concluded that if probation were imposed with certain conditions, defendant did not appear to be a danger to the community.
The associate warden recommended a grant of probation. His conclusion was that even if probation failed, defendant presented no significant risk.
The defense sentencing memorandum suggested the following factors in mitigation: (1) the prior conviction was remote in time, (2) Siegel had provoked the incident, making it unlikely that defendant would reoffend, (3) defendant had testified and exhibited remorse, (4) defendant overreacted because of his experience during the 1999 assault, (5) during the melee, defendant had pushed the victim away and tried not to harm him, (6) defendant’s prior performance on parole was satisfactory, (7) he had been a law-abiding citizen for the last 30 years, (8) the offense was only moderately grave, (9) defendant was motivated by self-defense and the defense of others, and (10) except for his ineligibility for probation, the trial court would have granted him probation. Defendant produced numerous letters from his friends and family indicating that he was active with his church, in a food bank, and with his daughter’s Girl Scout activities and that he counseled and tutored children.
At the hearing, the trial court announced for the benefit of all present that the jury had acquitted defendant of involuntary manslaughter. It explained the jury had also declined to find defendant’s conduct was the proximate cause of Siegel’s death. The trial court said that consequently, it was limited to imposing a maximum eight-year prison term.
It then listened to the victim impact statements. Siegel’s family members said that Siegel was a good family man who no doubt confronted defendant only to protect the surrounding children. The son expressed his opinion based on Siegel’s family history and his general good health that Siegel would have lived a much longer life in the absence of the blow.
During the trial, the trial court had excluded Pruitt’s testimony that defendant often sped off in his car after picking up his daughter at school.
Defense counsel asked the trial court to reconsider granting probation and commented on the factors in mitigation, especially defendant’s selfless participation in church and community affairs and his genuine belief that he was acting to protect others. The prosecutor argued that defendant had no remorse and that defendant was still claiming that Siegel was the aggressor. Defense counsel responded that defendant was at fault only because he had employed too much force.
The trial court commented on the factors in aggravation and mitigation. The trial court observed that there was no danger to defendant until he got out of the car and confronted Siegel. All defendant had to do to protect the children’s safety when Siegel approached was to roll up the windows and when the traffic permitted, to drive away.
The court cited the following factors in aggravation: (1) there was violence, a threat of great bodily injury, and the attack was cruel and vicious (Cal. Rules of Court, rules 4.421(a)(1) & (b)(1)); (2) defendant had assaulted Siegel in front of many school children and adults should be teaching children how to behave responsibly and properly; (3) the victim was elderly; (4) defendant was the aggressor and provoked the incident by getting out of the car, running, and confronting Siegel, and the jury had rejected defendant’s claim of self-defense (see Cal. Rules of Court, rule 4.423 (a)(2)); and (5) defendant failed to exhibit “a whole lot of” remorse and seemed to be shifting the entire blame to the victim (Cal. Rules of Court, rule 4.414(b)(7)).
The trial court mentioned that the diagnostic study suggested defendant had acted “impulsively” on the occasion and that defendant may have “anger issues” or a “self-centered disorder indicating some type of problem that needed treatment.”
B. Waiver
At the outset, the People assert that defendant waived the contention by failing to make any of the objections in the trial court that he raises on appeal. We agree.
It is well established that, “[a]s a general rule, only ‘claims properly raised and preserved by the parties are reviewable on appeal.’ (People v. Scott (1994) 9 Cal.4th 331, 354.)” (People v. Smith (2001) 24 Cal.4th 849, 852.) In Smith, the California Supreme Court also said: “In the sentencing context, we have applied the rule to claims of error asserted by both the People and the defendant. [Citation.] Thus, all ‘claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices’ raised for the first time on appeal are not subject to review. [Citation.]” (Smith, supra, at p. 852.)
Also, “the Scott [forfeiture] rule [(People v. Scott, supra, 9 Cal.4th at p. 353)] applies when the trial court ‘clearly apprise[s]’ the parties ‘of the sentence the court intends to impose and the reasons that support any discretionary choices’ [citation], and gives the parties a chance to seek ‘clarification or change’ [citation] by objecting to errors in the sentence.” (People v. Gonzalez (2003) 31 Cal.4th 745, 752.)
Here, the trial court did not announce a tentative sentence. But after listening to the parties’ arguments and imposing sentence, it paused and inquired, “Have we overlooked anything?” Defense counsel replied, “No,” and raised two issues unrelated to sentencing. In the circumstances, defendant had a meaningful opportunity to object on the grounds he belatedly raises on appeal. The contention addresses only discretionary sentencing choices, and not jurisdictional issues. Consequently, we conclude that the contention is waived.
C. The Merits
Defendant has demonstrated no reason for a reversal and resentencing.
The trial court has wide discretion in weighing aggravating and mitigating factors, balancing them against each other in both qualitative and quantitative terms, and in selecting an appropriate sentence. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) The trial court’s decision must be affirmed unless the defendant clearly shows that the trial court has abused its discretion, i.e., it acted arbitrarily or irrationally. (Ibid.)
Initially, we observe that the trial court had no duty to follow the associate warden’s recommendation for probation. (People v. Warner, supra, 20 Cal.3d at p. 683; People v. Downey, supra, 82 Cal.App.4th at p. 910.)
Our review of the sentencing proceedings disclose that the trial court committed one insignificant error. It improperly found one factor in aggravation—that Siegel was elderly. Siegel’s status as an elder was an element of the offense of elder abuse. Accordingly, the trial court should not have used that factor in aggravation. (Cal. Rules of Court, rule 4.420(d).)
The use of the other aggravating factors was appropriate, and the factors were supported by the trial and sentencing evidence: (1) there was violence, a threat of great bodily injury, and the attack was cruel and vicious, (2) defendant assaulted Siegel in front of numerous school children, (3) defendant was the aggressor, provoked the incident, and did not act in self-defense, and (4) defendant had little remorse. (See People v. Key (1984) 153 Cal.App.3d 888, 900 [where the evidence of guilt is overwhelming, a denial of guilt can show a lack of remorse that is aggravating].) These aggravating factors provide a sufficient basis to warrant the trial court’s choice of the upper term. (People v. Osband (1996) 13 Cal.4th 622, 730 [California courts have long held that a single factor in aggravation is sufficient to justify a sentencing choice].)
The trial court found “impulsivity” was a factor in mitigation, not a factor in aggravation. Allowing Siegel’s family to make victim impact statements does not show the trial court considered an improper aggravating factor. Pursuant to section 1191.1, Siegel’s family was entitled to make statements. The trial court did not consider the aftermath of the blow in aggravation.
The record fails to support the claim that the trial court ignored the proffered factors in mitigation or improperly weighed them. A trial court’s failure to explicitly weigh mitigation is not error. A trial court has no duty to state reasons on the record for rejecting factors proffered in mitigation. On a silent record, we presume that the trial court has considered all mitigation, but found the mitigation unsupported by the evidence or that it is so minimal as to be outweighed by the aggravating factors. (See People v. Rich (1988) 45 Cal.3d 1036, 1123–1124; People v. Mack (1986) 178 Cal.App.3d 1026, 1032–1033.)
Given that the trial court cited substantial factors in aggravation and found only negligible mitigation, there is no reasonable probability that a more favorable sentence would have been imposed in the absence of the trial court’s one insignificant error in finding aggravation. (People v. Forster (1994) 29 Cal.App.4th 1746, 1759.)
V. The Blakely-Cunningham Contention
Defendant contends that the decisions in Blakely, supra, 542 U.S. 296 and Cunningham, supra, 549 U.S. __ [127 S.Ct. 856] render the imposition of the upper term unconstitutional.
Concurrently with the appeal, on June 6, 2006, defendant filed a petition for a writ of habeas corpus. In the petition, he raises an issue of ineffective trial counsel. He contends that subsequent to the filing of the decision in Blakely, his defense counsel failed to object at sentencing to the imposition of an upper term based on aggravating factors found true by the trial court by a preponderance of the evidence. We shall dispose of the petition by a separate order.
On July 14, 2004, a petition for review was granted in People v. Towne, S125677. Apart from the issue stated in the petition for review, the court asked the parties to address the issue of whether Blakely precluded a trial court from making the required findings on aggravating factors for an upper term sentence, and the standard for a reversal if there was error. Also, later, the court asked for supplemental briefing on the following issues: “(1) Do Cunningham v. California, supra, and Almendarez-Torres v. United States (1998) 523 U.S. 224, 239–247 [140 L.Ed.2d 350, 118 S.Ct. 1219], permit the trial judge to sentence defendant to the upper term based on any or all of the following aggravating factors, without submitting them to a jury: the defendant’s prior convictions as an adult are numerous and of increasing seriousness; the defendant has served a prior prison term; the defendant was on parole when the crime was committed; the defendant’s prior performance on probation or parole was unsatisfactory (Cal. Rules of Court, rule 4.421, subds. (b)(2)–(b)(5))? [¶] (2) Is there any violation of the defendant’s Sixth Amendment rights under Cunningham v. California, supra, if the defendant is eligible for the upper term based upon a single aggravating factor that has been established by means that satisfy the governing Sixth Amendment authorities—by, for example, a jury finding, the defendant’s criminal history, or the defendant’s admission—even if the trial judge relies on other aggravating factors (not established by such means) in exercising his or her discretion to select among the three sentences for which the defendant is eligible?” (People v. Towne (Shawn), S125677, order of February 7, 2007.) Also, on February 7, 2007, the Supreme Court granted review in five more cases to address the impact of Cunningham: People v. Sandoval, S148917, People v. Mvuemba, S149247; People v. French, S148845; People v. Hernandez, S148974; and People v. Pardo, S148914.
During the initial briefing, the People claimed a forfeiture. However, after the decision in Sandoval, they conceded that appellant was in the same procedural posture as the defendant there. Consequently, there is no forfeiture. (Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.) We agree there is no forfeiture.
“[U]nder the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and [must be] established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham, supra, 549 U.S. at pp. ___–___ [127 S.Ct. at pp. 863–864].) For this reason, in Cunningham, that court held that California’s Determinate Sentencing Law (DSL) failed to comply with a defendant’s right to a jury trial. The court concluded that for Sixth Amendment purposes, the middle term under California’s DSL is the maximum term that may be imposed on the basis of the jury’s verdict alone. (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 868].)
However, the United States Supreme Court recognizes “two exceptions to a defendant’s Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury’s verdict. (Blakely, supra, 542 U.S. at p. 303.) Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. (Id. at p. 301; see Apprendi [v. New Jersey (2000)] 530 U.S. [466,] 490; Almendarez-Torres v. United States (1998) 523 U.S. 224, 239–244.)” (Sandoval, supra, 41 Cal.4th at pp. 836–837.)
In Black II, a decision implementing the Cunningham decision in California, the California Supreme court held that as long as there is one valid aggravating factor found true by the jury or admitted by the defendant, or there exists in the record a single aggravating circumstance that is legally sufficient to make the defendant eligible for an upper term sentence, i.e., a prior conviction, the upper term sentence may properly be imposed. (Black II, supra, 41 Cal.4th at pp. 813–814.) This principle applies even where the trial court relied on other factors in aggravation of the term. (Ibid.)
In this case, during defendant’s testimony, he admitted that in 1971 he sustained a conviction for first degree attempted murder and that he had served a five-year prison term for that conviction. The trial court did not explicitly rely on defendant’s criminal history in aggravation of the term. However, the existence in the record of substantial and reliable evidence of the prior conviction for which he had served a prison term rendered the statutory maximum the upper term. Thus, defendant was not entitled to a jury trial with proof beyond a reasonable doubt on the other aggravating factors the trial court relied upon to select upper term punishment.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., CHAVEZ, J.