P. v. Allen
Filed 12/13/12 P. v. Allen CA1/4
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
FRANK DEAN
ALLEN,
Defendant and Appellant.
A135734
(Sonoma
County
Super. Ct.
No. SCR613160)
After
appellant Frank Dean Allen pleaded no contest to a felony violation of Penal
Code section 69
name="_ftnref1" title="">[1] (threatening
a police officer), the trial court denied probation and imposed the upper term
of three years after weighing aggravating and mitigating factors. Appellant argues that the trial court abused
its discretion by imposing the upper term based on
factors not supported by the record. We
disagree and affirm.
I.
Factual and Procedural
Background
1. Procedural History.
A
complaint was filed on January 20, 2012, charging appellant with two felony
counts, violations of sections 136.1,
subdivision (a)(2) (threatening a witness—count one) and
69 (threatening a police officer—count two). On March
29, 2012, appellant accepted an offer to plead no contest to count
two in exchange for dismissal of count one, and appellant entered his plea that
same day. His written waiver of rights
stated he was pleading to “P.C.69 Felony interfering with police officers
execution of his duties.†The plea
agreement provided that appellant understood that the trial court could
consider the dismissed charge against him in determining the appropriate
sentence and setting the amount of victim restitution (a “Harvey waiverâ€). (
754.) The plea agreement also specifically
stated that appellant was aware that the maximum punishment he could receive
was three years. Appellant’s counsel and
the district attorney agreed that there was a factual basis for the plea
according to the police report, and the trial court accepted the plea.
Sentencing
took place on April 24, 2012,
after the trial court considered the probation officer’s written and oral
reports and the arguments of counsel.
After concluding that the aggravating factors outweighed the mitigating
ones, the trial court denied probation and sentenced appellant to the upper
term of three years, with presentence credits in the amount of 196 days. Pursuant to section 1170,
subdivision (h), the trial court ordered that appellant be committed to
county jail for this period of incarceration and that the last three months be
suspended subject to probation. Count
one was dismissed, pursuant to the plea
agreement.
2. The
facts as shown in the presentence report.
On
January 12, 2012, police went to appellant’s residence in Rohnert Park
following an investigation into his possible involvement in a residential
burglary in an unrelated case. They
found appellant to be in possession of methamphetamine and displaying symptoms
of being under the influence of a controlled substance, and they placed him
under arrest. Appellant’s actions after
his arrest are the basis of the charged crimes in this case. Appellant told Sonoma County Sheriff’s
Detective Tony King that he (the detective) was “fucking†with him and that
“you better watch your back.†When
appellant was asked what he meant, he said, “[Y]ou know,†but did not
elaborate. King was familiar with
appellant because of a previous theft investigation.
A
man who had been investigated for his possible involvement in residential
burglary with appellant was in the booking area of the jail when appellant was
there, and the suspect later reported to another detective (not King) that
appellant said that he (the suspect) would “suffer consequences†if he said
anything to law enforcement about the burglary.
During this same encounter, appellant told the suspect, “I’m gonna have
[Detective] Tony King lose his job†and “Tell Tony King that I’m gonna fuck his
daughter up the ass.â€
Detectives
listened to recorded calls made by appellant from jail on the day of his
arrest. He told his mother, “ ‘If I
run into him [Det. King], I’m gonna be doin a lot of time because I’m sick of
this prick.’ †As a result of the
several threats, Detective King alerted his daughter, her school, and his
wife. More than a week after appellant
was released on bail, he was again taken into custody, questioned about
threats, and denied making any.
Appellant admitted, however, that he read about Detective King on the
internet.
According
to the presentence report, appellant did not do well during several other
grants of conditional sentences in other cases, and just three days before the
commission of the crime in this case, he was placed on a conditional sentence
in another case. During appellant’s
interview with the probation officer, he denied ever making any threats to
Detective King or his daughter, showed no remorse for any of his actions, and
minimized his admitted actions. For
example, he admitted saying that he would sue Detective King and make him lose
his job, but said he did not mean that.
He also admitted to a history of substance abuse and anger management
issues. The probation department’s
recommended sentence, endorsed by the deputy district attorney, was followed by
the trial court. Appellant timely
appealed, and his sole argument is that the trial court committed sentencing
error.
II.
Discussion
1. Standard
of review.
We
review a criminal sentence under the abuse of discretion standard (
(1997) 14 Cal.4th 968, 976–977 (Alvarez))
and must affirm the trial court’s sentence “ ‘unless there is a clear
showing the sentence choice was arbitrary or irrational.’ †(People
v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) Appellant bears the burden of affirmatively
establishing an abuse of discretion. (
“Neither
section 1170 nor the California Rules of Court attempt to provide an
inclusive list of aggravating circumstances.
Thus, a trial court is free to base an upper term sentence upon any
aggravating circumstance that (1) the court deems significant and
(2) is reasonably related to the decision being made.†(People
v. Moberly (2009) 176 Cal.App.4th 1191, 1196.)
2.
The trial court carefully weighed all relevant
factors.
Before
imposing the upper term, the trial court stated that it had “spent quite a bit
of time reviewing†the matter, and it explained at length the reasons for its
sentencing decision. The court first
focused on appellant’s lack of insight into his substance abuse and his “very
lengthy [criminal] history†dating back to 1982. The court stressed that appellant had
received “five or six conditional sentences that [appellant] failed by picking
up additional cases,†which was “about the wors[t] way you can fail a
conditional sentence.†Appellant also
had “an extreme anger management issue†that he minimized, according to the
trial court. In mitigation, the court
noted that appellant took responsibility for his actions and avoided a trial,
and there had been prior situations when he had satisfactorily performed during
grants of a conditional sentence. The
court stated that it was “very hard sentencing for the Court,†presumably
meaning that it had a difficult choice to make.
However, the court determined that probation was not appropriate, and
that imposition of the upper sentence was warranted, stating that “the factors
in aggravation outweigh the factors in mitigation by a substantial margin based on the nature of the offense [and
appellant’s] lengthy criminal history.†(Italics added.)
On
appeal, appellant focuses almost exclusively on the former factor (the serious
nature of his offense), and downplays the latter factor (his lengthy criminal
history), as well as the various other factors mentioned during the sentencing
hearing. Nowhere in his appellate briefs
does he acknowledge his burden to demonstrate error or the broad discretion of
the trial court. Appellant’s argument
boils down to this: If threats to Detective King’s daughter were excluded from
consideration, the trial court would necessarily have reached a different
conclusion on the remaining factors and would have granted probation. In light of the other material factors
considered by the trial court, we cannot agree.
Appellant
argues that the trial court wrongly determined that the offense was serious
because inadmissible aggravating factors were considered, and that “neither the
definition of his crime nor the underlying facts supporting his conviction
actually support a finding that his crime was distinctly worse than ordinary on
this basis.†To the extent that
appellant argues that the trial court cannot consider any hearsay, it is well
settled that the court can do so. (People
v. Moberly, supra, 176
Cal.App.4th at p. 1196.) Faced with
this obstacle, appellant argues that the critical facts within the report are
unreliable hearsay and if they were excluded the court would sentence
differently. Thus the core issue in this
argument is whether the factors in the probation report are sufficiently
reliable as in People v. Arbuckle (1978) 22 Cal.3d 749, 755 [probation report
inherently reliable] or whether there are too many layers of hearsay to be
sufficiently reliable as in People v.
Williams (1990) 222 Cal.App.3d 911, 914-918 [multiple hearsay statements in
probation report too unreliable].
Appellant
spends much of his brief arguing that the threats referring to Detective King’s
daughter contained two levels of uncorroborated hearsay and were improperly
considered by the trial court. He
contends that his plea is an admission only to direct threats made to Detective
King and did not include the alleged threats made to his daughter. Appellant further argues that the alleged
threat to the daughter referred to in the presentence report should have been
excluded as unreliable hearsay because it was made to a jailhouse snitch (the
other burglary suspect) who repeated it to a different detective, neither of
whom testified at a trial. Respondent argues
that because no objection was made in the trial court, the irregularity, if
any, was waived. We decline to reach the
questions of waiver, the scope of the plea, or the admissibility of the threat
to Detective King’s daughter for the reasons that follow.
Exclusion
of the threat to Detective King’s daughter is not dispositive. The trial court can impose an aggravated term
if there is a single aggravating factor.
(People v. Jones (2009) 178
Cal.App.4th 853, 863, fn. 7.) Here
there are other aggravating factors, and a single one is enough as long as it
outweighs the mitigating factors. (
198, 202.) Thus, appellant has the
burden of showing that none of the other aggravating factors would support the
sentence imposed.
He
does not meet this burden. Indeed,
appellant overlooks the fact that the trial court rejected an argument similar
to the one he advances on appeal.
Appellant’s trial counsel acknowledged that defendant had made
threatening statements to Detective King upon his arrest and during a conversation
with his mother, but argued that there was insufficient evidence that appellant
in fact made the “horrific threats†directed to the detective’s daughter when
he was in the booking area with the other burglary suspect. The trial court noted that the “gross and
egregious sexual comments†made regarding the detective’s daughter
“corroborate[d]†the fact that appellant was “an extremely angry person.†However, even
excluding appellant’s statements regarding the detective’s daughter, the
crime still qualified as a violation of section 69, according to the trial
court, which considered the crime to be “a violent offense towards any law
enforcement†that “goes to the heart of society[ w]here you don’t respect
those doing their job and go over the line.†Because the trial court considered there to be
sufficient proof that appellant committed the underlying crime even absent
consideration of appellant’s sexual comments, it follows that the court
considered the upper term appropriate even absent proof of the comments.
The
trial court referred to the following additional factors, each of which were
admissible and appropriate criteria affecting the grant or denial of probation
(Cal. Rules of Court, rule 4.414)
circumstances in aggravation (rule 4.421): (1) the nature of the
crime itself was “awful†and went “to the heart of our society,†given the
threats made directly to a law enforcement officer and to a witness (the other
burglary suspect) (rule 4.421(a)(1) [crime involved acts disclosing callousness]);
(2) significant emotional injury was inflicted on Detective King
personally (rule 4.414(a)(4)); (3) appellant had a lengthy criminal
history spanning 30 years (rule 4.421(b)(2)), a factor repeatedly
emphasized by the trial court; (4) his performance on prior grants of
conditional sentences was unsatisfactory (rule 4.421(b)(5)); (5) he
demonstrated no remorse, minimizing his admissions (rule 4.414(b)(7)); and
(6) he had a long history of drug abuse (rule 4.414(b)(4)).
In
short, there is more than one aggravating factor and when weighed with the
mitigating factors it is not unreasonable to conclude that the upper term be
imposed. We are not to substitute our
judgment for that of the trial court. (
cannot conclude that a different result would have occurred without the threat
to Detective King’s daughter.
Appellant’s argument that this is a close case where exclusion of one
factor results in a different sentence is not supported by the record in light
of the trial court’s statement that the aggravating factors outweighed the
mitigating ones by a “substantial margin.†(Italics added.) In short, appellant failed to meet his burden
of showing that the decision was arbitrary or irrational. (Ibid.)
III.
Disposition
The judgment is affirmed.
_________________________
Baskin,
J.*
We concur:
_________________________
Ruvolo, P. J.
_________________________
Rivera, J.
*
Judge of the Contra Costa Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
name="_ftn1" title="">[1]
All statutory references are to the Penal Code.
name="_ftn2" title="">[2]
All rule references are to the California Rules of Court.
