Opinion
A157080
11-19-2019
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY LEE BALDWIN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Del Norte County Super. Ct. No. CRF 129177)
In 2012, Anthony Lee Baldwin was sentenced to nine years in prison. (People v. Baldwin (2018) 30 Cal.App.5th 648, 650-652.) The sentence was based on three years for robbery (Pen. Code, § 211), plus six consecutive one-year enhancements for prior prison terms (§ 667.5, subd. (b)). (Baldwin, at p. 650.) In 2018, this court remanded to the trial court for "plenary resentencing, with the now misdemeanor convictions for his 1998, 2000, and 2003 convictions, as well as his 1995 felony conviction, no longer eligible for use as section 667.5(b) enhancements, subject only to the requirement that Baldwin may not receive an aggregate sentence greater than that previously imposed." (Baldwin, at pp. 657-658.)
Undesignated statutory references are to the Penal Code.
In March 2019, Baldwin was resentenced to seven years in prison. Baldwin appeals. He contends the court abused its discretion by failing to consider a mitigating factor during his resentencing. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Walmart Incident
Baldwin's conviction was based on a robbery at a Walmart in 2012. Baldwin stole a pair of shoes. When confronted by an assistant manager, Baldwin had a box cutter in his hand and stated " 'I'll fuck'n cut you.' " Baldwin told the probation officer he "stole the shoes because he was wearing a pair of boots that were hurting his feet, and he was in a lot of pain."
Baldwin requests we take judicial notice of the presentence investigation report, the supplemental report of the probation officer, and the abstract of judgment from case No. A147588. We previously deferred ruling on the request. We now grant the request for judicial notice. --------
II. Baldwin's Resentencing
At Baldwin's resentencing hearing, the People argued that various factors in aggravation applied, and that there were no factors in mitigation. The People sought a sentence of seven years based on the upper term of five years for robbery and two one-year enhancements for prior prison terms. The probation officer also recommended resentencing based on "the aggravated term."
Defense counsel argued the court should adhere to its 2012 decision to sentence Baldwin to the midterm for robbery. Defense counsel argued "there was a mitigating factor that wasn't considered. And that was the fact that my client had taken the shoes from Walmart for necessities of life. He needed the shoes. So that was something that the original sentencing court did not decide and something that you can decide and consider at this point." Defense counsel requested a sentence of three years for robbery plus two one-year enhancements resulting in "a five-year prison sentence."
The court resentenced Baldwin to seven years. The court read the presentence investigation reports from 2012, which included a supplemental report. The court stated "there's a conviction for a second-degree robbery . . . after jury trial verdict, as well as . . . two special allegations . . . . [¶] I am mandated under law to follow Rules 421 and 423. So I have to make my own independent analysis . . . . [¶] So when I look at that, I look at Rule 421, circumstances in aggravation, I find (a)(2) to be true; I find (b)(1) to be true; (b)(2) to be true; (b)(3) to be true; and (b)(4) to be true. [¶] Turning to circumstances in mitigation, there are none. [¶] So it's obvious to me that the aggravated sentence should be chosen. I would [not] be doing . . . my job and a disservice if I did not follow the law." After resentencing Baldwin to seven years in prison, the court awarded Baldwin credits of 2,937 days. Baldwin timely appeals.
DISCUSSION
Baldwin contends the court abused its discretion by failing to consider a mitigating factor. We disagree and affirm.
I. Governing Law and Standard of Review
"When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court." (§ 1170, subd. (b).) "In exercising . . . discretion in selecting one of the three authorized terms of imprisonment . . . , the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision." (Cal. Rules of Court, rule 4.420(b).) Circumstances in aggravation include: "The defendant was armed with or used a weapon at the time of the commission of the crime." (Id., rule 4.421(a)(2).) Circumstances in mitigation include: "The defendant was motivated by a desire to provide necessities for his or her family or self." (Id., rule 4.423(a)(8).)
II. Baldwin Forfeited His Claim of Sentencing Error
Preliminary, we note that Baldwin forfeited the argument he makes on appeal. "[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott (1994) 9 Cal.4th 331, 356.) In People v. Jones (2009) 178 Cal.App.4th 853, the defendant argued the trial court imposed aggravated terms at sentencing "without considering a number of mitigating factors that were available in the court's records . . . ." (Id. at p. 859.) The appellate court refused to reach the merits of the claim because the defendant did not object at the time of sentencing. (Ibid.) Similarly here, Baldwin failed to object when the court stated there were no factors in mitigation. Thus, his claim of sentencing error is forfeited.
III. Even If Not Forfeited, Baldwin's Argument Fails
Considering Baldwin's argument on its merits, he fails to demonstrate the court did not consider his proposed mitigating factor, and, even if it did not, Baldwin cannot show he suffered prejudice.
Baldwin contends "the record affirmatively reflects that the trial court did not consider the mitigating fact that '[t]he defendant was motivated by a desire to provide necessities for his or her family or self.' (Rule 4.423(a)(8).)" Baldwin's 2012 presentence report contained a statement regarding his motivation. Baldwin contends his trial counsel brought this mitigating factor to the court's attention, but the court "did not then proceed to consider" it because the court stated there were no circumstances in mitigation.
We are not persuaded. The court indicated it read the presentence reports. During resentencing, defense counsel argued the court should consider the mitigating factor that Baldwin took the shoes from Walmart "for necessities of life." When addressing circumstances in mitigation, the court stated "there are none."
We read this statement to mean the court found Baldwin's proposed mitigating factor did not justify a more lenient sentence, not that it did not consider it. We presume the court simply discounted Baldwin's proposed mitigating circumstance, as it was entitled to do. (People v. Weaver (2007) 149 Cal.App.4th 1301, 1318 ["[b]ecause the trial court expressly stated on the record that it . . . considered . . . documents [listing circumstances supporting probation], we presume the court did, in fact, consider those circumstances even though it did not expressly restate, recite, or otherwise refer to each one"], disapproved on another ground as stated in People v. Cook (2015) 60 Cal.4th 922, 934-935; People v. Salazar (1983) 144 Cal.App.3d 799, 813 ["A trial court may minimize or even entirely disregard mitigating factors without stating its reasons."].) Baldwin fails to demonstrate an abuse of discretion.
In arguing otherwise, Baldwin relies on People v. Simpson (1979) 90 Cal.App.3d 919. But in Simpson, the court considered the defendant's alcoholism as an aggravating factor when it should have considered it as a mitigating factor. (Id. at pp. 926-927.) Baldwin does not argue the same error occurred here. Baldwin also relies on People v. Strunk (1995) 31 Cal.App.4th 265, a case in which the sentencing judge failed to consider three mitigating factors. (Id. at pp. 273-275.)
But here, even if we assume the court failed to consider one mitigating factor, the court listed five circumstances in aggravation. As Baldwin recognizes, "the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term." (People v. Black (2007) 41 Cal.4th 799, 813.) Baldwin argues it is "reasonably possible" the resentencing court would have imposed the midterm if it considered "the mitigating factor of Rule 4.423(a)(8)." Given the court's reliance on five aggravating factors, Baldwin fails to establish a reasonable probability of this outcome. (People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
We affirm.
/s/_________
Jones, P. J. WE CONCUR: /s/_________
Simons, J. /s/_________
Needham, J.