Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County, Super. Ct. No. F03901251-9, Edward Sarkisian, Jr., Judge.
Sharon G. Wrubel, 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, Senior Assistant Attorney General, Stephen G. Herndon and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Gomes, Acting P.J., Dawson, J., Hill, J.
This is an appeal following a resentencing hearing which was ordered by this court in an unpublished opinion that affirmed the convictions of appellant Hugo Cernas on various felony charges but found a sentencing error. In this appeal, appellant contends the court erred by not ordering and considering an updated probation report before imposing the new sentence. We reject this argument, and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Facts
On October 5, 2001, shortly after 7:00 p.m., Ronald Ybarra (Ybarra) identified himself as a gang member to some persons sitting in car, at which point someone inside the car fired several shots at Ybarra, but missed. Approximately two and one-half hours later, Ybarra, appellant and a third person, all armed with guns, walked toward a house that was a “perceived Sureño location” where three persons were sitting outside, and opened fire. All three persons sitting outside the house, one of whom was pregnant, were struck with bullets. The pregnant victim and her child, who was born a month prematurely, survived, as did one of the other victims. The third victim died at the scene. An expert witness characterized both shootings as gang warfare.
Procedural Background
Appellant was arrested in 2003. In March 2005, a jury convicted him of first degree murder (Pen. Code, § 187, subd. (a) in count 1); attempted murder (§§ 187, subd. (a), 664 in counts 2, 3); and, active participation in a criminal street gang (§ 186.22, subd. (a) in count 4). The jury also found true a special circumstance allegation that appellant committed the murder while he was an active participant in a criminal street gang, with the intent to further the gang’s activities (§ 190.2, subd. (a)(22)), and the following enhancement allegations: in committing the murder, appellant personally discharged a firearm, proximately causing the death of a person not an accomplice (§ 12022.53, subd. (d)); and in committing the murder and the attempted murders, he (1) personally used a firearm (§ 12022.5, subd. (a)(1)) and (2) acted for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further or assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(C)).
All statutory references are to the Penal Code.
A probation report was filed on April 12, 2005. On April 25, 2005, the court imposed sentencing as follows: for the murder, life in prison without possibility of parole (LWOP), plus 25 years to life for the discharge-of-a-firearm enhancement and the 10-year upper term for the firearm-use enhancement, with the latter enhancement term stayed; for each of the attempted murders, an indeterminate life term with the possibility of parole, plus the 10-year upper term on the firearm-use enhancement; and on count 4, the upper term of three years. The court stayed the execution of sentence on count 4 pursuant to section 654.
Appellant appealed, and in September 2008, this court, in an unpublished opinion, affirmed the judgment of conviction but vacated the sentence. This court held, inter alia, that the trial court erroneously (1) failed to realize it had discretion under section 190.5 to impose, on appellant’s murder conviction, a determinate life sentence with the possibility of parole instead of an LWOP term; and, (2) imposed upper terms on the count 4 conviction and on the firearm-use enhancements based on aggravating factors it found by a preponderance of the evidence, in violation of appellant’s right to jury trial on, and proof beyond a reasonable doubt of such factors.
Section 190.5, subdivision (b), provides: “The penalty for a defendant found guilty of murder in the first degree, in any case in which one or more special circumstances enumerated in Section 190.2 or 190.25 has been found to be true under Section 190.4, who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime, shall be confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life.”
This court remanded for resentencing, with directions that the trial court determine whether to impose middle terms or aggravated terms on count 4 and the firearm-use enhancements, and to determine whether to impose an LWOP sentence or a life sentence with possibility of parole on the murder conviction.
Thereafter, appellant submitted to the trial court a “Sentencing Memorandum” noting that he was 17 years old at the time of the instant offenses, and argued as follows: The court should exercise its discretion under section 190.5 to impose a sentence of 25 years to life, rather than an LWOP sentence, on count 1; section 190.5 requires “a proper exercise of discretion in choosing whether to grant leniency and impose the lesser penalty of 25 years to life [on a 16-year-old or 17-year-old person convicted of a special circumstance murder]”; and the circumstances in aggravation and mitigation listed in California Rules of Court, rules 4.421 and 4.423, respectively, “do not lose their logical relevance to the issue of mitigation merely because this is not a determinate sentencing matter.” (Italics omitted.) Appellant also stated that he “may be requesting a new Probation report.”
All rule references are to the California Rules of Court.
At the resentencing hearing on February 27, 2009, the court stated it wanted an opportunity to read the transcript of the original sentencing hearing, and continued the matter to March 27. Shortly thereafter, appellant requested the court to order the preparation of a new probation report. The prosecutor objected and the following colloquy ensued:
Further references to dates of events are to dates in 2009.
“THE COURT: Well, I was going to observe, and I was reflecting on, [defense counsel], the fact that you have submitted a sentencing memorandum. And based on the nature of the remand, and it’s remanded with directions, it seems to me based on that and the exercise of the court’s discretion that I don’t believe a necessity of a supplemental report is in order. [¶] But if there’s anything you wish to submit beyond your sentencing memorandum to the Court for its consideration I’m prepared to receive it if you want to provide a copy to [the prosecutor].
“[Defense counsel]: Very good.
“THE COURT: I’ll look at whatever else you wish to present.
“[Defense counsel]: I’ll be consulting with [appellant] over the weekend. If we can come up with some other ideas for submitting to the Court, we will.”
At the continued hearing on March 27, defense counsel stated he was “[submitting the matter on his] sentencing brief, and just asking the Court to weigh the issues outlined in the appellate decision with regard to aggravating [and] mitigating circumstances, and also the other mitigating factors, and other factors as set forth in their opinion. And on that basis, and on behalf of my client, I would ask the Court to impose 25 to life, exercising its discretion, essentially because of his youth, and the fact that the Court is bolstered by two additional 25 years to life sentences on top of that.”
Thereafter, the court imposed a sentence which, as did the original sentence, included an LWOP term on count 1 and upper terms on count 4 and the three firearm-use enhancements.
In stating the reasons for its sentencing choices, the court stated, in relevant part, as follows: “[Of] the 11 factors listed in Penal Code Section 190.3, only one, i.e., the age of the Defendant appears to be a consideration. [¶]... [¶] As [Defendant points] out in Defense Counsel’s sentencing memorandum, Defendant was 17 years of age at the time of the offense. But I note he was and is only nine months younger than Co-defendant Ybarra, who received a life without parole sentence. And it was this Defendant, namely, Cernas, whose gun or firearm actually caused the death of Alvaro Romero....”
Section 190.3 lists the factors a trier of fact may consider in determining whether to impose the death penalty or an LWOP sentence on a defendant convicted of first degree murder when a special circumstance allegation has been found true and the defendant was 18 years of age or older at the time of the commission of the offense. (§§ 190.3, 190.5.) Factor (i) in section 190.3 is “the age of the defendant at the time of the crime.” “[T]he factors stated in section 190.3 are available, to the extent relevant to an exercise of discretion to grant leniency, as guidelines under section 190.5.” (People v. Guinn (1994) 28 Cal.App.4th 1130, 1142-1143.)
DISCUSSION
Appellant argues the trial court, in denying appellant’s request for an updated probation report, abused its discretion and violated appellant’s right to due process of law under the California and United States Constitutions. We disagree.
Appellant was statutorily ineligible for probation. (§ 1203.06, subd. (a)(1)(A) [probation may not be granted to any person who personally used a firearm during the commission or attempted commission of murder]; § 12022.53, subd. (g) [probation may not be granted to any person subject to a section 12022.53 enhancement].) Therefore, a probation report was discretionary. (People v. Bullock (1994) 26 Cal.App.4th 985, 989 (Bullock); People v. Tatlis (1991) 230 Cal.App.3d 1266, 1272-1273 (Tatlis); § 1203, subd. (g); rule 4.411(b).)
Section 1203, subdivision (g), provides, in relevant part: “The judge, in his or her discretion, may direct the probation officer to investigate all facts relevant to the sentencing of [a] person [not eligible for probation].”
Rule 4.411(b) provides: “Even if the defendant is not eligible for probation, the court should refer the matter to the probation officer for a presentence investigation and report.”
“[This] discretion[,]... is not, however, the broad sweeping discretion [the court] is afforded in other circumstances. The use of the word ‘should’ in rule 418 [the predecessor to rule 4.411(b)] bespeaks a somewhat narrower discretion. The advisory sense in which the word ‘should’ is used connotes strong encouragement, the indication of the preferred practice. Hence, while the court has discretion to deviate from the preferred practice, it must have a sound reason for doing so.” (Tatlis, supra, 230 Cal.App.3d at p. 1273.) “[W]hen a defendant has requested a current probation report and the court originally had ordered and considered a probation report, a good countervailing reason will be required for denying the request.” (Ibid.)
See footnote 7, ante.
The court in Tatlis further observed: “If a remanded defendant requests a current probation report, the request in itself suggests the report will reveal favorable, or mitigating, information.... While the same favorable information could be presented to the court in another form, that the court ordered the preparation of a probation report before sentencing the defendant originally suggests the efficacy and utility of evaluating the current information in the same form. The report presents information in a cohesive fashion, facilitating the task of weighing newly revealed mitigating factors in the balance.” (Tatlis, supra, 230 Cal.App.3d at p. 1273.)
In Bullock, this court agreed with the Tatlis court’s characterization of the scope of the court’s discretion and with the need for a “sound reason for departing from the preferred practice of [ordering an updated report],” and recognized, “There may be compelling reasons for ordering a probation report even when the defendant is ineligible for probation. The defendant’s postconviction behavior and other possible developments remain relevant to the trial court’s consideration upon resentencing.” (Bullock, supra, 26 Cal.App.4th at p. 990.) However, the court noted further, “in many cases obtaining a new report will be a meaningless exercise. The trial court is in the best position to evaluate the need for an updated report, with the input of counsel.” (Ibid.)
A comparison of Tatlis and Bullock is instructive. In each case, at issue was the trial court’s failure to order a new probation report in advance of resentencing ordered by the appellate court. In Tatlis, the appellate court held the trial court’s denial of the defendant’s request for an updated probation report was a prejudicial error. Bullock summarized Tatlis as follows: “In Tatlis, the defendant requested a current probation report be prepared and the trial court refused to order one without giving any indication it was exercising discretion. Because there was no good reason appearing on the record for denying the defendant’s request, and because he submitted materials in his petition for writ of habeas corpus showing a reasonable probability that new mitigating circumstances ‘will affect the sentencing calculus favorably,’ the matter in Tatlis was remanded to the trial court for reconsideration of the defendant's request.” (Bullock, supra, 26 Cal.App.4th at p. 990.)
In Bullock, this court rejected the defendant’s claim that the trial court erred in failing to order an updated probation report, reasoning as follows: “There was no request by appellant for an updated report, no evidence that the trial court acted on incomplete information or that there was information which appellant wished to have considered that was not. [Citation.] There is likewise nothing in the record here, as there was in Tatlis, suggesting the trial court incorrectly believed it could not order a probation report had it wanted to do so.” (Bullock, supra, 26 Cal.App.4th at p. 990.)
We recognize that here, unlike Bullock, appellant requested an updated report and, as the Tatlis court indicated, such a request “suggests” that mitigating information exists and would be uncovered by the probation department’s investigation. (Tatlis, supra, 230 Cal.App.3d at p. 1273.) However, other factors in the record rebut any such suggestion here. First, appellant submitted a sentencing memorandum in which although he asserted that the circumstances in mitigation enumerated in rule 4.423 “do not lose their logical relevance” (italics omitted) to the sentencing determinations this court directed the trial court to make, viz., whether to impose an LWOP sentence on count 1 and whether to impose upper terms on count 4 and the firearm-use enhancements, he offered no argument as to which mitigating factors applied here, beyond noting his age and the court’s statutory discretion in sentencing a 16-or-17-year old person convicted of first degree special circumstance murder.
Second, we note the following: At the February 27 proceeding, the court, after it denied appellant’s request for a current report, stated it would consider anything further the defense wished to submit. However, at the continued hearing on March 27, defense counsel, who by then had four weeks to consider the matter, merely submitted the matter on the basis of his sentencing memorandum. In that memorandum, he asked the court to consider the mitigating factors set forth in the rules of court; but again, except for arguing, based “essentially” on appellant’s “youth,” the court should impose a sentence on count 1 that included the possibility of parole, defense counsel did not indicate which mitigating factors were applicable to the sentencing determinations before the court.
Appellant argues that his youth was a mitigating factor the court should have considered and that the original probation report found there were no circumstances in mitigation. However, as appellant acknowledges, the court explicitly considered appellant’s age.
Appellant also argues that notwithstanding the court’s consideration of his age, the absence of an updated report deprived the court of “information with which to gauge the relevance of [his] age... such as [his] level of maturity at the time of the crimes in 2001, whether [he] had been vulnerable to negative influences from a young age and lacked the ability to extricate himself and whether [his] character and maturity had evolved in a positive direction since 2001.” (Italics added.) But, it is fair to assume, from the absence of any discussion of such factors in appellant’s sentencing memorandum and from defense counsel’s failure to present argument regarding such factors at the March 27 sentencing hearing, despite having ample opportunity to investigate, that if any information regarding such factors was available, it would not have been favorable to appellant.
Thus, as in Bullock, but unlike Tatlis, “[t]here was... no evidence that the trial court acted on incomplete information or that there was information which appellant wished to have considered that was not.” (Bullock, supra, 26 Cal.App.4th at p. 990.) As the court stated in Bullock, “We are entitled to presume that the sentencing court properly exercised its discretion in imposing sentence absent contrary evidence.” (Id. at pp. 990-991.) Moreover, as in Bullock, “[t]here is... nothing in the record here, as there was in Tatlis, suggesting the trial court incorrectly believed it could not order a probation report had it wanted to do so.” (Ibid.)
The court did not abuse its discretion or violate appellant’s due process rights in refusing to order a updated probation report.
DISPOSITION
The judgment is affirmed.