P. v. Carruth
P. v. Carruth
Filed 8/9/06 P. v. Carruth CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
Plaintiff and Respondent,
Defendant and Appellant.
(Los Angeles County
Super. Ct. No. MA028840)
APPEAL from a judgment of the Los Angeles County Superior Court, Thomas R. White, Judge. Affirmed.
Marilee Marshall & Associates, Inc., Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Jonathan J. Kline, Deputy Attorney General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Lev Carruth (defendant) of inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)). The jury found defendant not guilty of discharging a firearm with gross negligence (§ 246.3) and the trial court declared a mistrial on a charge of assault with a semiautomatic firearm (§ 245, subd. (b)) after finding the jury hopelessly deadlocked. The trial court sentenced defendant to the middle term of three years in state prison.
On appeal, defendant contends that the trial court abused its discretion in denying his motion to reduce his conviction of inflicting corporal injury on a cohabitant to a misdemeanor. Defendant also contends that the trial court violated his state and federal constitutional rights to a jury trial and due process by relying on facts found not true by the jury to deny him probation and sentence him to state prison. We affirm the judgment.
Gilda Brown and defendant began dating in 1994. In 1999, they moved into a house at 1815 Hart Street in Lancaster. In 2003, defendant, a truck driver, moved to Arkansas because that was “where his job was.” Defendant and Brown maintained their relationship. Defendant kept his “things” at the Lancaster house, he had a key to the house, and when he was not on the road or in Arkansas he stayed with Brown in Lancaster. According to Brown, as of April 24, 2004, defendant still lived with her.
In January 2004, Brown met Algene Taylor at work. Brown and Taylor were correctional officers at the California State Prison, Los Angeles County. Brown and Taylor began dating. Brown continued her relationship with defendant and did not tell him that she was dating Taylor. At around noon or 1:00 p.m., on Saturday, April 24, 2004, Brown called defendant in Arkansas. Defendant did not tell Brown that he was coming to California that day. Later that day, Brown invited Taylor to come over. Brown and Taylor spent the afternoon and evening drinking and went to bed around 10:00 p.m. Brown slept on the left side of the bed next to a dresser in which she kept a loaded Browning .380. Brown always kept a bullet in the gun’s chamber and left the safety off.
Taylor testified that he believed the lights were out in the house when he and Brown went to bed. Around midnight, he woke up when he noticed that a light was on. When he woke up, he saw defendant standing close to the doorway. Defendant walked toward Taylor’s side of the bed and said, “So this is how it is.” Defendant then hurried over to Brown’s side of the bed, took her gun out of the dresser, and chambered a round. Brown got up and asked defendant, “What is going on?” Brown’s expression told Taylor that Brown knew defendant. Brown “went for the gun . . . trying to keep him from doing whatever he was going to do.” As Brown struggled to take the gun from defendant, she pleaded with him to put down the gun. Brown told Taylor, “You need to get out of here.”
Taylor testified that he was afraid and ran out of the bedroom as fast as he could. He ran down the stairs and did not stop until he was out of the house. When Taylor was at the base of the stairs, he heard a gunshot. Taylor did not see anyone behind him, but had the feeling that he was being pursued. Taylor ran to the house next door. He rang the doorbell and knocked on the door, but no one responded. As Taylor ran to the neighbor’s house he noticed a man standing next to a car parked in front of Brown’s house.
About a minute later, the man standing in front of Brown’s house approached Brown’s house. Taylor could not see Brown’s front door from where he stood and did not know if the man entered Brown’s house. Shortly thereafter, defendant and the man returned from the direction of Brown’s house. Defendant put something into his belt area that Taylor believed was the gun. Defendant got into the car and left. Taylor immediately went back inside Brown’s house. He observed that Brown’s left ear was torn and bleeding.
Brown testified that she woke up when Taylor bumped or pushed her. Brown saw someone standing at the doorway, but did not recognize that it was defendant. Because she did not recognize defendant, she rolled over and attempted to retrieve her gun from the dresser. As Brown removed her gun from the dresser, defendant took it from her. Brown got out of bed and attempted to take back the gun from defendant. Taylor ran out of the bedroom. The struggle over the gun took Brown and defendant out of the bedroom. When they were outside of the bedroom, Brown forcefully pushed defendant. Defendant stumbled backwards and the gun went off. According to Brown, defendant pointed the gun at the floor and never pointed it at her or anyone else. Defendant did not chase or run after Taylor.
According to Brown, defendant walked down the stairs and she followed him. When Brown got downstairs, defendant was standing at the front door. Defendant approached Brown and asked her how long “this” had been going on. Brown did not answer and defendant slapped her on the left side of her face. Brown testified that although defendant was “pretty strong,” the slap “wasn’t really that hard.” Brown was unsure if defendant still had her gun when he slapped her.
After defendant slapped Brown, his friend, “Hank,” came in and said, “Come on. Let’s go.” Defendant bent down and picked up something and he and Hank left. Taylor returned and told Brown that there was a trickle of blood coming down the side of her face. Brown noticed that she had a “nick” on the top of her left ear. She disputed a police report that the cut to her ear was one half of an inch long. She estimated that the cut was one eighth or one sixteenth of an inch long.
Brown and Taylor called the police. A recording of Brown’s conversation was played for the jury. On the recording, Brown stated that her ex-boyfriend had come into her home while she was asleep and had assaulted her and her friend. Brown stated that her ex-boyfriend had taken her gun out of a drawer. She thought that her ex-boyfriend pointed the gun at her friend. Her ex-boyfriend told her friend “to get the f . . . get out the house” and chased her friend down the stairs. Brown stated that her ex-boyfriend discharged the gun – she believed he may have discharged it twice – and that he hit her.
Brown testified that some time later – possibly Monday – she returned home and found a note on her screen door. The note was in defendant’s handwriting and informed Brown that he had left her gun in a place where they “usually left stuff” – under a trash can on the side of the house. Brown found her gun there, wrapped in a towel.
On April 26, 2004, Los Angeles County Sheriff’s Department Detective Dwayne Bednar spoke to Brown. Brown told the detective that as she and defendant stood at the front door, defendant said, “This is some mess-up shit.” Brown said that defendant hit her across the face, that her left ear had been injured, and that the side of her face was swollen.
On April 28, 2004, a person identifying himself as defendant called Detective Bednar. Defendant told the detective that he flew to Los Angeles to surprise Brown. His friend “Hank” picked him up at the airport and drove him to Brown’s house. Defendant entered Brown’s house through a side door and went upstairs and turned on the bedroom light.
Defendant told Detective Bednar that he saw a “dude” he did not know in Brown’s bed. Defendant told the man, “Hey, dude, get your shit and move on out of here.” Brown woke up and reached for the dresser. Defendant knew Brown kept a loaded gun beside the dresser and took the gun out of the dresser. He pulled the slide back to render the gun safe. Then, he and Brown struggled over the gun. During the struggle, defendant fell backwards and the gun discharged.
Defendant told Detective Bednar that he went downstairs because he saw Taylor go downstairs. Taylor went out onto the front lawn. Defendant asked Taylor if he had been hit. Taylor ran off and defendant returned to the house. Defendant asked Brown, “How long has this been going on?” Defendant told Detective Bednar, “I beat the hell out of her,” and hit her across the face. Defendant also told the detective, “I slapped the shit out of her.” Defendant then left the house, emptied the gun of bullets, left the gun on the side of the house, and left with Hank.
I. The Trial Court Properly Exercised Its Discretion in Denying Defendant’s
Motions to Reduce His Conviction to a Misdemeanor
Section 17, subdivision (b), gives the trial court discretion to reduce certain offenses known as “wobblers” from felonies to misdemeanors. (People v. Leslie (1996) 47 Cal.App.4th 198, 201; People v. Mendez (1991) 234 Cal.App.3d 1773, 1779.) The infliction of corporal injury in violation of section 273.5, subdivision (a), is a wobbler. (People v. Jackson (2000) 77 Cal.App.4th 574, 576.) We review a trial court’s ruling under section 17 for an abuse of discretion. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 976-977.) A trial court abuses its discretion when it rules in an “arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316.)
On appeal, “‘The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ [Citation.] Concomitantly, ‘[a] decision will not be reversed merely because reasonable people might disagree. “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.” [Citations.]’ [Citation.]” (People v. Superior Court (Alvarez), supra, 14 Cal.4th at pp. 977-978.)
In People v. Superior Court (Alvarez), supra, 14 Cal.4th at page 978, the Supreme Court, reviewing a trial court’s exercise of discretion under section 17 in the context of the Three Strikes law observed that there was “scant judicial authority explicating any criteria that inform the exercise of section 17(b) discretion. (But see In re Anderson  69 Cal.2d [613,] 627.) However, since all discretionary authority is contextual, those factors that direct similar sentencing decisions are relevant, including ‘the nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.’ [Citations.] When appropriate, judges should also consider the general objectives of sentencing such as those set forth in California Rules of Court, rule 410. [Footnote omitted.] The corollary is that even under the broad authority conferred by section 17(b), a determination made outside the perimeters drawn by individualized consideration of the offense, the offender, and the public interest ‘exceeds the bounds of reason.’ [Citations.]”
In this case, at the conclusion of the People’s case, defendant moved the trial court to reduce the charged violation of section 273.5, subdivision (a) to a misdemeanor. Alternatively, defendant requested an instruction on misdemeanor spousal battery under section 243, subdivision (e)(1), as a lesser included offense. The trial court denied defendant’s motion to reduce the charge to a misdemeanor. The trial court later granted defendant’s request to instruct the jury on spousal battery as a lesser included offense. After the jury convicted defendant of inflicting corporal injury on a cohabitant in violation of section 273.5, subdivision (a), defendant moved the trial court at sentencing to reduce that conviction to a misdemeanor. Implicitly denying the motion, the trial court sentenced defendant to state prison.
Defendant contends that the trial court’s failure to reduce his violation of section 273.5, subdivision (a) from a felony to a misdemeanor was an abuse of discretion. There is evidence that supports the trial court’s ruling. The trial court heard evidence of defendant’s description of the incident to Detective Bednar. According to Detective Bednar, defendant stated that he “beat the hell out of [Brown]” and “slapped the shit out of her.” Two days after the attack, Brown told Detective Bednar that defendant hit her across the face, that her left ear had been injured, and that the side of her face was swollen. Taylor testified that Brown’s ear was torn and bleeding. The trial court heard Brown’s testimony that although defendant was “pretty strong,” the slap “wasn’t really that hard.” Brown also testified that the injury she suffered was only a “nick” to the top of her ear that was no more than one eighth of an inch long and that there was only a “trickle” of blood.
The trial court did not abuse its discretion in apparently crediting the more incriminating testimony from Detective Bednar, Taylor and Brown and discounting the less incriminating or exculpating portions of Brown’s testimony. Considering all the evidence, defendant failed to meet his burden of clearly showing that the trial court’s decision not to reduce defendant’s conviction for inflicting corporal injury on a cohabitant from a felony to a misdemeanor was irrational or arbitrary (People v. Superior Court (Alvarez), supra, 14 Cal.4th at p. 977) or that the trial court acted in an “arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice” (People v. Jordan, supra, 42 Cal.3d at p. 316).
II. The Trial Court Did Not Rely on Facts Found Not True by the Jury to Deny
Defendant Probation and Sentence Him to State Prison
Defendant contends that the trial court violated his state and federal constitutional rights to a jury trial and due process by relying on facts found not true by the jury to deny him probation and sentence him to state prison. The record does not support defendant’s contention. The trial court did not rely on the sentencing factors defendant finds objectionable.
The probation officer’s report cites three aggravating factors: (1) the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness; (2) defendant has engaged in violent conduct, which indicates a serious danger to society; and (3) defendant’s prior convictions as an adult are numerous or of increasing seriousness. The report states that there were no known mitigating factors. At sentencing, however, the trial court noted that it had stricken the finding of no known mitigating factors and added “early acknowledgement of domestic violence toward victim Brown.”
In support of his contention that the trial court improperly relied on facts found not true by the jury, defendant argues that the trial court improperly relied on the first and second aggravating factors set forth above. Defendant also argues that the trial court improperly relied on its assessment that Taylor had nearly been shot and that if he had, defendant “would have been looking at ‘an even more dire outcome.’” The jury rejected these facts, defendant alleges, when it acquitted him of negligently discharging a firearm. According to defendant, “the facts, as found true by the jury, indicated that [defendant] slapped his live-in girlfriend a single time in the face after finding her naked, in bed, with another man.” Thus, defendant concludes, “the circumstances of the offense, as found by the jury, were not aggravated.”
Because we disagree with defendant’s characterization of the trial court’s ruling, we set forth the relevant portions of the trial court’s remarks at defendant’s sentencing:
“It is not really an unusual situation where I find that the People are requesting a much more severe term, and in this case even the probation officer has recommended a high term state prison, and the defense arguing for time served, which would be potentially one of the least of the lesser punishment that could be imposed. Perhaps I see the case a little differently than both sides, but reviewing not only my notes, twice now I have gone back and reviewed my recollection of the facts of the case, and the recommendations both by probation and the People’s memorandum, and I certainly also considered what I knew to be at the time the defense’s position and now have had that confirmed by defense argument.
“However, I see a case where it is very difficult for me to find that aggravating factors or mitigating factors would outweigh, or I see by the probation officer’s setting forth the case history of prior arrests that even though some time has passed, there does appear to be emerging an obvious pattern of conduct here that has to be considered.
“Also, this is the type of case where I think all sides, all parties involved, were very fortunate that nothing more serious happened, but the bullet that went in the general vicinity of the second victim, Mr. Taylor, was certainly close enough that but for a little difference in his exiting the house, or perhaps in the party’s struggling in close proximity to him as he exited, that this could have had extremely tragic consequences for all parties. And in that event [defendant] may have been looking at an even more dire outcome.
“Having said all of that, I am trying to give both sides some analysis of my reason for proceeding with sentence.”
Following its remarks, the trial court sentenced defendant to the middle term of three years in state prison for his violation of section 273.5, subdivision (a). Defense counsel objected to imposition of the middle term and requested the lower term if the trial court was not going to grant probation. The trial court responded, “I have indicated that I didn’t feel that mitigating factors were such as to outweigh to the extent that 4.414 and other sections that I have reviewed would require me to find in order to impose a probationary sentence, the request is denied.”
Contrary to defendant’s contention, the record does not demonstrate that the trial court relied on the aggravating factor that the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness; or the aggravating factor that defendant has engaged in violent conduct, which indicates a serious danger to society. The trial court never referred to either aggravating factor. Instead, in its remarks at sentencing, the trial court stated that the aggravating and mitigating factors essentially balanced out. If the trial court had found true all three aggravating factors in the probation officer’s report and balanced those factors against the sole mitigating factor of early acknowledgment of domestic violence, it is unlikely it would have found that those factors balanced out.
Defendant contends that the fact that the trial court struck the finding in the probation officer’s report of no known mitigating factors but did not strike the report’s finding concerning the two disputed aggravating factors indicates that the trial court agreed with the finding concerning those aggravating factors. Defendant cites no authority supporting such an interpretation. We decline to interpret the trial court’s silence as to certain allegedly aggravating factors as indicating the trial court relied on those factors.
For similar reasons, we reject defendant’s interpretation of the trial court’s statement that the parties were fortunate that Taylor had not been shot and that if he had been defendant then might have faced “an even more dire outcome” as indicating that the trial court concluded that defendant intentionally fired the gun. We do not agree with defendant’s contention that the trial court relied on this “finding” as an aggravating factor. The trial court’s suggestion that defendant might have faced “an even more dire outcome” had Taylor been shot does not mean that the court relied on this point as an aggravating factor in sentencing defendant to the middle term sentence. Instead, fairly construed, the comment simply means that had Taylor been shot, defendant might have faced more serious charges, and the jury might have viewed the evidence differently. Accordingly, there was no error in connection with the sentencing.
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J.
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 All statutory citations are to the Penal Code unless otherwise noted.
 Section 17, subdivision (b)(1) provides:
“(b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:
“(1) After a judgment imposing a punishment other than imprisonment in the state prison.”
 Section 273.5, subdivision (a) provides:
“(a) Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.”
 See People v. Corpuz (2006) 38 Cal.4th 994, 996 [identifying spousal battery in violation of section 243, subdivision (e)(1) as a misdemeanor].
 Defendant does not contest that the trial court properly relied on the third aggravating factor cited in the probation officer’s report concerning defendant’s prior convictions.