Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF113070E, Patrick J. O’Hara, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Maggy Krell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Gomes, J., and Kane, J.
Appellant, Rolando Bermudez, pled no contest to voluntary manslaughter (Pen. Code, § 192, subd. (a)) and admitted an arming enhancement (Pen. Code, § 12022, subd. (a)), and a gang enhancement (Pen. Code, § 186.22, subd. (b)(1)(C)) in exchange for a maximum term of 12 years. On October 25, 2007, the court sentenced Bermudez to an aggregate 12-year term, the upper term of 11 years on his manslaughter conviction and a one-year arming enhancement. On appeal, Bermudez contends the court: 1) committed Cunningham error, and 2) abused its discretion when it imposed the aggravated term on his manslaughter conviction. We will affirm.
Cunningham v. California (2007) 549 U.S. 270 (Cunningham).
FACTS
On April 8, 2003, Jose Lemus was driving in Porterville with Manuel Martinez (Manuel), Pablo Garcia, and Bermudez as passengers. As they drove by Francisco Martinez (Francisco), a Norteño gang member, Francisco “mad dogged” them and gestured with his hands as if to challenge them. Lemus pulled the car over and his three passengers got out. Francisco yelled “Norte” and threw a punch at Garcia. Garcia swung back striking Francisco and knocking him to the ground where he and Bermudez began kicking him. Garcia and Bermudez finished beating Francisco and were walking back to the car when Manuel pulled out a shotgun. Manuel shot Francisco in the shoulder as Francisco stood with his hands in the air as if asking Manuel not to. Manuel shot the victim two more times knocking him to the ground and killing him.
On September 22, 2005, the prosecutor filed an information charging Bermudez with murder, two arming enhancements, and a gang enhancement.
On September 21, 2007, he entered a plea to a reduced charge of voluntary manslaughter and admitted an arming enhancement and the street gang enhancement.
On October 25, 2007, after hearing counsel’s arguments, the court struck the gang enhancement and sentenced Bermudez to an aggregated term of 12 years as noted above. In pronouncing sentence the court stated,
“I look at this case and I see really one thread going through and that is that one of the individuals was attacked by Norte[ñ]os over by the Tule River. Subsequent to that, this group went to another town, Terra Bella, Pixley, one of those towns, picked up a shotgun and went out, as I recall, going towards a place where they thought Norte[ñ]os hung out. There were none to be found. They found an individual with a red shirt, dressed in red colors, walking down the street. They slowly went by. Once he claimed red, the three individuals, including the defendant, got out and beat him. Beat him to the ground. Subsequent to that he was shot.
“And there is one overriding factor here in aggravation, and that is this victim was vulnerable. He was walking down the street minding his own business when these individuals came up and attacked him brutally, for no other reason than his colors, his perceived gang association. So I find the factor in aggravation, in my opinion, outweighs everything, and that is the senselessness, the vulnerability of this individual with this attack by this defendant and his cohorts. [¶]…[¶]
“I find there is that factor in aggravation that outweighs any factors - - other factors in aggravation or mitigation.”
DISCUSSION
The Cunningham Issue
Bermudez contends the court committed Cunningham error because it imposed the upper term on his voluntary manslaughter conviction based on the vulnerability of the victim, a circumstance that was not found true by a jury. We disagree.
“In Apprendi [v. New Jersey (2000) 530 U.S. 466],the Supreme Court held, ‘Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ [Citation.] In Blakely [v. Washington (2004) 542 U.S. 296], the United States Supreme Court held that ‘[t]he “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.’ [Citation.]” (In re Saade (2008) 162 Cal.App.4th 1391, 1396.)
In Cunningham, the Supreme Court found California’s former Determinate Sentencing Law (hereafter DSL) (former Pen. Code, § 1170) unconstitutional. In discussing the former DSL the Cunningham court stated,
“Under California’s DSL, an upper term sentence may be imposed only when the trial judge [found] an aggravating circumstance. . . . An element of the charged offense, essential to a jury’s determination of guilt, or admitted in a defendant’s guilty plea, [did] not qualify as such a circumstance. [Citation.] Instead, aggravating circumstances depend on facts found discretely and solely by the judge. . . . [T]herefore, the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum. [Citation] (‘[T]he “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.’ (emphasis in original). Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, [citation], the DSL violates Apprendi’s bright-line rule: Except for a prior conviction, ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ [Citation.] [¶]…[¶]” (Cunningham v. California, supra, 127 S.Ct. at p. 871, italics added.)
The Legislature has since amended the DSL (Pen. Code, § 1170) in response to Cunningham to give trial courts genuine discretion within a statutory sentencing range consisting of three terms. (See, Stats. 2007, ch. 3, § 2, eff. March 30, 2007.) In People v. Sandoval (2007) 41 Cal.4th 825, our Supreme Court implicitly found Penal Code section 1170, as amended, constitutional. In Sandoval, after finding that the trial court erred in imposing the upper term, the court rejected the Attorney General’s suggestion that it reform California’s former DSL law, under which the defendant had been sentenced, “to afford the trial court ‘broad discretion’ in selecting among the three terms specified by statute for the offense, subject to the requirements that the court consider the aggravating and mitigating circumstances as set out in statutes and rules and that reasons be stated for the choice of sentence. Under the Attorney General’s proposed reformation, an upper term sentence would be authorized by the jury’s verdict without any requirement of additional factfinding by the judge.” (People v. Sandoval, supra, 41 Cal.4th at pp. 843-844.)
The court also stated,
“This reformation of the DSL would cure the constitutional defect in the statute, because the United States Supreme Court repeatedly has made clear in the line of decisions culminating in Cunningham that it ‘ha[s] never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. [Citations.] ... For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.’ [Citations.]”
The Sandoval court, however, found it unnecessary to amend California’s former DSL. Instead, it implicitly found the new DSL constitutional stating:
“In the present case, however, it is unnecessary for us to decide whether the statute should be judicially reformed to render it constitutional because, while this case was pending, the California Legislature amended the DSL in substantially the same manner proposed by the Attorney General. (Stats. 2007, ch. 3.) [¶]…[¶]
“Under the former scheme, the trial court was required to state reasons for imposing the upper or lower term, but not the middle term. Citation. Under the amended scheme, a statement of reasons is required even if the middle term is imposed. Citation. The reasons, however, no longer must ‘include a concise statement of the ultimate facts that the court deemed to constitute circumstances in aggravation or mitigation.’ Citation.” (People v. Sandoval, supra, 41 Cal.4th at pp. 845, 847, fn. omitted.)
Here, the court sentenced Bermudez in October 2007, after the amendment of California’s DSL. Further, since the constitutionality of the amended DSL was upheld by the court in Sandoval, we reject Bermudez’s contention that the court erred in imposing the upper term on his manslaughter conviction because it relied on facts that were not found true by a jury.
The Court did not Abuse its Discretion when it Imposed the Upper Term
The court imposed the upper term based on its finding that the victim was particularly vulnerable. Bermudez contends the court abused its discretion in imposing the aggravated term because its finding that the victim was particularly vulnerable is not supported by the record. We disagree.
We review the trial court’ sentencing decision for abuse of discretion. (People v. Lamb (1988) 206 Cal.App.3d 397, 401.) The court’s sentencing choice will be upheld unless defendant shows the sentence was arbitrary or irrational. (People v. Hubbell (1980) 108 Cal.App.3d 253, 260.)
The vulnerability of a victim is a proper consideration in sentencing a defendant. (California Rules of Court, rule 4.421(a)(3).) “[A] ‘particularly vulnerable’ victim is one who is vulnerable ‘in a special or unusual degree, to an extent greater than in other cases. Vulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant's criminal act. An attack upon a vulnerable victim takes something less than intestinal fortitude. In the jargon of football players, it is a cheap shot.’ [Citation.] [Rule 4.421 (a)(3)] has thus far been applied exclusively in criminal cases involving violent felonies, where the age or physical characteristics of the victim, or the circumstances under which the crime is committed, make the defendant’s act especially contemptible.” (People v. Bloom (1983) 142 Cal.App.3d 310, 321-322.)
All further rule references are to the California Rules of Court.
Here, the victim was alone when he was confronted by Bermudez, Garcia, and Manuel. After Garcia and Bermudez finished viciously kicking the victim as he lay on the ground, the victim managed to get up, undoubtedly dazed from the beating, and Manuel pointed the shotgun at him. As the victim held his hands up in an act of surrender, Manuel fired three shots at the victim, killing him. These circumstances support the court’s imposition of the aggravated term based on its conclusion that the victim was particularly vulnerable because they show the victim was unarmed and outnumbered and by the time Francisco pointed the shotgun at him he was incapable of defending himself or fleeing because of the beating he had just endured.
Bermudez cites People v. Levitt (1984) 156 Cal.App.3d 500, to argue that the victim should not be deemed particularly vulnerable because he was responsible for instigating the altercation. In Levitt the court found that the victim who was shot and killed by the defendant was particularly vulnerable because he was caught unaware by the defendant and did nothing to provoke or partially excuse the defendant’s conduct. (Id. at p. 515.) The court, however, did not hold that a victim cannot be found to be particularly vulnerable if his conduct in any way leads to the victim being assaulted. Instead, the absence of any provocation by the victim in Levitt led the court to conclude that the victim was particularly vulnerable because he was caught by surprise, thus limiting his ability to protect himself from the defendant.
Here, the victim’s gang member status and his conduct in “mad dogging” the defendant and his cohorts may have made him a less sympathetic victim. It did not, however, ameliorate the effect of the circumstances cited above that made the victim particularly vulnerable. Thus, we conclude that the court did not abuse its discretion when it relied on the vulnerability of the victim to impose the aggravated term.
DISPOSITION
The judgment is affirmed.