Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FMB1400119) APPEAL from a judgment of the Superior Court of San Bernardino County, Rodney A. Cortez, Judge. Affirmed. Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
In 2016, Brock Mackinzie Myers was convicted of second degree murder (Pen. Code, § 187, subd. (a)). The jury also found Myers had used a firearm within the meaning of section 12022.5, subdivision (a)(1). Myers appealed and this court determined there was not enough evidence to support a finding of implied malice, thus the court reduced the conviction to involuntary manslaughter, vacated the sentence and remanded the case to the trial court for resentencing. (People v. Myers (Jan. 4, 2019, D074462) [unpub. opn.].)
All further statutory references are to the Penal Code unless otherwise specified. --------
Upon remand, the trial court imposed an upper-term sentence of four years for involuntary manslaughter and an upper-term of 10 years for the firearm enhancement.
Myers again appeals and contends the trial court erred in selecting the upper term for both the offense and the enhancement. The People contend the issue has been forfeited for failure to object. We will agree with the People and decline to determine whether the sentence imposed was an abuse of discretion.
STATEMENT OF FACTS
The facts surrounding the offense in this case are fully addressed in our prior opinion, we will not set them forth fully in this opinion. We will include the brief summary of the facts as set forth in appellant's opening brief for convenience.
The post-remand record does not contain the record of trial, but the relevant facts are set forth in the appellate opinion. Myers and his fellow marines, including his best friend, S.K., had spent the day shooting in the desert, grilling food, and drinking beer. At the end of the day, several members of the group were preparing to drive home.
As they were about to leave, Myers walked up to the truck and asked S.K. for a lighter. S.K. said no. Myers asked for it again. S.K. told Myers, "If you put that pistol in my mouth and pull the trigger, I'll give you this lighter." The two friends were joking and there was no indication of ill will or anger between them. Myers took his pistol out of his holster and released the magazine. S.K. opened his mouth and stuck out his tongue. Myers then put the gun in S.K.'s mouth and pulled the trigger. The gun fired, killing S.K.
When the police arrived, Myers was sitting on the ground talking on his cell phone. Myers was "[h]ysterical" and told the police he had accidentally shot his best friend, and he was going to jail for a long time. After Myers was handcuffed and placed in the patrol car, he began screaming and banging his head against the window.
The other marines present told police Myers racked his gun and did not see him clear it. In a police interview, Myers told police they always joked around with guns and start caring less and less as they drink. Myers did not believe he had any rounds in the chamber, he expected it to dry fire.
Myers testified in his own defense. He stated that the day he shot S.K., he drank about 12 beers. S.K. was sitting in the backseat of the truck when Myers approached him. Myers had his gun in his right hand and a cigarette in his left hand. Myers asked S.K. for a lighter or a cigarette. S.K. responded "something to the extent of like no balls or something along those lines like—." Myers and S.K. were not arguing but were laughing. Myers interpreted the statement "no balls" like a dare.
Myers thought his gun was in "condition three," meaning there's a magazine inserted in the pistol grip but there is not a round in the chamber. Myers explained that when he pulled the trigger he was expecting the hammer to go forward and the gun to "dry fire." Myers did not believe the gun was loaded when he pulled the trigger. He also stated that he did not "[chamber] a round" and did not know how the bullet got into the chamber. Myers testified that if he had known his gun was loaded, he would not have pointed it at anyone.
After the court heard argument and reviewed the evidence from the trial, the trial judge made the following decision:
"The court has considered the sentencing factors in determining that the aggravated and consecutive sentence totaling 14 years in state prison is the appropriate sentence given for what was presented at trial.
"As the conviction of voluntary manslaughter the triad is two years, three years, or four years. And the court imposes the aggravated term of four years, as he was armed with a firearm and the victim was vulnerable and unable to protect himself pursuant to the rule 4.421 of California Rules of Court. And that is not outweighed by the lack of a prior record or that Mr. Myers acknowledged wrongdoing at an early stage.
"The court also selects the aggravated term of ten years on the gun enhancement pursuant to Penal Code [s]ection 12022.5[, subdivision] [a], selecting the aggravated term based on a crime involving grace [sic] violence under rule 4.421. He didn't merely brandish a weapon. He fired a deadly weapon into the mouth of the victim at point blank range giving [S.K.] no chance of survival."
Earlier in the hearing defense counsel objected to resentencing on the enhancement because the original sentence on the enhancement was three years. The court rejected the defense argument that double jeopardy prohibited resentencing on the enhancement since this court vacated the sentence in its entirety following reduction of the conviction. Myers does not renew that argument here.
Myers contends the court erred in selecting the aggravated terms because the court relied on invalid factors in aggravation. For the first time on appeal, Myers contends the court's reliance on the use of a firearm to increase the manslaughter sentence was improper because the court also imposed a term for the firearm enhancement (§ 1170, subd. (b)). Myers also argues on appeal there is not substantial evidence to sustain the finding the victim was vulnerable, Myers does not discuss the other reasons given by the trial court in support of its decision.
A. Legal Principles
Ordinarily objections to sentencing decisions must be made first in the trial court before they can be raised on appeal. (People v. Scott (1994) 9 Cal.4th 331, 356.) The court in Scott made it clear that challenges to the selection of terms by sentencing judges must be raised first in the trial court or be subject to forfeiture. The court pointed out that "Routine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention. As in other cases, we hope to reduce the number of errors committed in the first instance and preserve the judicial resources otherwise used to correct them." (Id. at p. 353.)
Where the alleged error is one of pure legal analysis and does not require analysis of the facts, appellate review without forfeiture is appropriate. (In re Sheena K. (2007) 40 Cal.4th 875, 885.)
The lack of meaningful opportunity to object is a valid reason to decline to apply forfeiture. However, a tentative opinion in advance of the sentencing decision is not required. (People v. Zuniga (1996) 46 Cal.App.4th 81, 84.)
Although there was no tentative opinion provided before sentencing, the defense had adequate opportunity to object. Counsel objected on other grounds earlier in the proceeding. After the court stated its decision it asked counsel if there was anything else. Counsel then discussed possible additional restitution and a potential schedule for addressing the issue. The defense did not bring any perceived errors in the prior sentencing discussion to the court's attention. The entire hearing was conducted in a fashion to provide both sides the time needed to present their positions. We have no reason to believe the court would not have permitted further objection if needed, but none was made.
Without in depth discussion of the sentencing factors, the trial court reasonably thought that Myers, a trained Marine, who shoved a gun in his friend's mouth and pulled the trigger presented a far more aggravated manslaughter than required by only the elements of the offense. And, of course Myers did not simply use a gun as contemplated by the bare elements of section 12022.5, he pulled the trigger. The victim was certainly made more vulnerable to death by placing the gun in his mouth, assuring death if there was an error.
Although this court earlier found insufficient evidence of implied malice, we did not minimize the egregious nature of the reckless behavior of the appellant.
The judgment is affirmed.
HUFFMAN, J. WE CONCUR: BENKE, Acting P. J. AARON, J.