P. v. Poteate
Filed 1/26/09 P. v. Poteate CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A121430
v. (SolanoCounty
Super. Ct. No. 178226)
MARY E. POTEATE,
Defendant and Appellant.
______________________________________/
Mary E. Poteate appeals from a judgment entered after she pleaded no contest to voluntary manslaughter. (Pen. Code, 192, subd. (a).)[1] She contends the trial court abused its discretion when it sentenced her to the upper term. We disagree and will affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
We have addressed this matter before. (See People v. Poteate (Aug. 18, 2006, A112455) [nonpub. opn.].) We set forth the facts of the offense as described in our prior opinion.
On April 2, 2005, police responded to a mobile home park to investigate a report of a homicide. A crew that had been assigned to clean a trailer found a female body, later identified as A.D. A.D. was hog-tied on the floor with a pillowcase over her head. A mattress and box spring were on top. Upon removing the pillowcase, the police saw that A.D.s face and head had been bludgeoned. Her pants were pulled down and there were feces on her body. A.D.s hands were tied behind her back with a shoelace, and her ankles were tied with an electrical cord.
Police investigating the crime quickly focused on appellant and Robert Medeiros as possible suspects. A.D. knew appellant and Medeiros and had been helping them out. At some point, appellant and Medeiros hatched a plan to rob A.D.
The plan was implemented in late March 2005. According to appellant, Medeiros smothered A.D. while she was intoxicated and asleep on a couch. He then dragged her to another room where he punched her. The noise of what sounded like breaking bones upset appellant. She asked Medeiros to make A.D. take some pills so she would not feel any pain. Medeiros gave appellant some pills and told her to shove [them] up [A.D.s] ass. When appellant did so, A.D.s bowels released. Medeiros placed a mattress on top of A.D. and told appellant to bind her hands and feet. Appellant complied. As she did so, appellant heard A.D. say repeatedly, You dont have to kill me.
Appellant and Medeiros fled while A.D. was still alive. They stole her truck and drove to Idaho where they pawned some of A.D.s rings. Subsequently, appellant and Medeiros returned to California where they were arrested by the police.
Initially, appellant denied being involved in A.D.s killing. Eventually she relayed the version of the crime that is set forth above. Appellant told the police she was afraid of Medeiros and thought he might kill her. Appellant also said Medeiros beat her often, an allegation that was at least partially supported by the fact that appellant had a black eye.
Medeiros also spoke with the police and he too admitted being involved in A.D.s death. However, he said appellant had been in charge of everything. Medeiros told several versions of the crime. In one, Medeiros said that when he returned to the trailer one night, he found that appellant had smothered A.D. In another, Medeiros said he covered A.D.s mouth while appellant pinched her nose.
Based on these facts an information was filed charging appellant and Medeiros with murder ( 187, subd. (a)), and second degree robbery ( 211).
The case against appellant was resolved through negotiation. Appellant pleaded no contest to voluntary manslaughter. In exchange, appellant agreed to testify against Medeiros and the other two counts against her were dropped.
On December 13, 2005, the court denied appellant probation, and sentenced her to the upper term of 11 years in prison.
Appellant appealed the judgment. Among other things, she argued the trial court violated Blakely v. Washington (2004) 542 U.S. 296 when it imposed the upper term. This court rejected appellants argument based on binding authority from the California Supreme Court. (People v. Black (2005) 35 Cal.4th 1238.)
Appellant filed a petition for writ of certiorari to the United States Supreme Court. The Supreme Court granted the petition, vacated the judgment, and remanded the matter to this court for reconsideration in light of Cunningham v. California (2007) 549 U.S. 270.
After receiving further briefing from the parties, this court remanded the matter to the trial court for a new sentencing hearing pursuant to People v. Sandoval (2007) 41 Cal.4th 825.
On April 22, 2008, the trial court conducted a new sentencing hearing and imposed the same 11-year sentence that it had imposed originally. This appeal followed.
II. DISCUSSION
The probation report filed prior to appellants first sentencing hearing in December 2005 recommended that appellant be sentenced to an aggravated 11-year term. The court followed that recommendation.
However, the report for the second sentencing hearing recommended that appellant be sentenced to a middle term of six years. The report cited four factors in aggravation: the crime involved great violence and acts disclosing a high degree of cruelty and viciousness (Cal. Rules of Court, rule 4.421(a)(1));[2]the victim was particularly vulnerable in that she was intoxicated and asleep when attacked (rule 4.421(a)(3)); the manner in which the crime was carried out indicated planning and sophistication (rule 4.421(a)(8)); and appellant took advantage of a position of trust and friendship to commit the offense (rule 4.421(a)(11)). The report only cited one factor in mitigation; that appellant had no prior record (rule 4.423(b)(1)).
Appellant submitted a wide array of evidence to the court prior to the second sentencing hearing. Her counsel filed a sentencing memorandum which urged the court to impose the lower term of three years. Counsel cited six statutory factors in mitigation including the fact that appellant played a minor role in the crime, (rule 4.423(a)(1)); appellant was acting under circumstances that constituted duress (rule 4.423(a)(4)); appellants lack of a prior record indicated she was not predisposed to criminal activity (rule 4.423(a)(5)); appellant had not committed any prior crimes (rule 4.423(b)(1)); appellant was suffering from an mental condition, battered womans syndrome, that reduced her culpability (rule 4.423(b)(2)); and appellant voluntarily cooperated with authorities investigating the crime (rule 4.423(b)(3)).
Appellant also submitted a letter from her sister, who said appellants codefendant Medeiros had abused her, and letters from friends who stated that appellant was not a bad person.
In addition, appellant submitted a lengthy report from a psychologist who evaluated appellant and who stated that she was a battered woman who had been physically and psychologically abused by Medeiros. The psychologist opined that appellant being a victim of domestic violence perpetrated by Mr. Medeiros was a critical factor in the events resulting in her arrest.
The trial court weighed these conflicting factors at a sentencing hearing held in April 2008. After hearing argument from counsel, the court explained its sentencing choice briefly as follows:
In the discretion of the Court, the Court is going to choose the high term of 11 years.
Ive taken into consideration the seriousness of the offense, and the fact that the reduction of the crime itself to the manslaughter charges, Ms. Poteate is benefited by that.
So that will be the base aggregate prison term.
Appellant now challenges the courts ruling arguing the court erred when it when it imposed the upper term.
The trial court is granted broad discretion to determine what sentence is appropriate and its ruling will be reversed on appeal only where the court abused its discretion. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) We find no abuse here.
There are several factors that weighed in appellants favor. The record strongly indicates that appellant was a battered woman who had come under the influence of a man, Medeiros, who abused her physically and emotionally. The record also indicates appellant was not a hardened criminal (this was her first offense) and that appellant had qualities that others saw as beneficial. On the other hand, weighing against appellant is her admitted participation in a crime that was breathtaking in its cruelty. Appellant and Medeiros attacked and brutally beat a friend who had been helping them. The victim was asleep and intoxicated when the attack began. Appellant was an active participant in the crime, shov[ing] pills up the victims rectum and binding her hands and feet, but appellant minimized her own culpability. The victims pleas for mercy went unheeded. Appellant and Medeiros then fled, abandoning the victim while she was still alive, hog-tied on the floor and covered with feces.
The trial court reasonably could conclude that what it characterized as the seriousness of appellants crime outweighed the factors in mitigation that had been identified. We conclude the court did not abuse its discretion when it imposed the upper term.
Appellant contends the court erred because one of the factors the court cited when explaining its ruling, the fact that appellant benefited from the reduction of the crime itself to the manslaughter charges was improper. She cites People v. Green (1982) 142 Cal.App.3d 207, 216, which does hold that when a defendant admits to a lesser crime pursuant to a plea bargain, is it improper for the court to consider the fact that the crime was reduced per plea bargain when selecting a sentence. We will assume for purposes of this appeal that the court did violate Green when choosing what sentence to impose. The pivotal question then becomes whether the courts error was prejudicial.
The standard is whether it is reasonably probable appellant would have achieved a more favorable result absent the error alleged. (People v. Osband (1996) 13 Cal.4th 622, 728.) We conclude the answer is no. The primary, and we think overarching characteristic of this offense was its extreme cruelty. All the mitigating factors appellant has identified pale in comparison. We conclude it is not reasonably probable the court would have imposed a different sentence absent the error alleged. Any possible error was harmless.[3]
III. DISPOSITION
The judgment is affirmed.
_________________________
Jones, P.J.
We concur:
_________________________
Simons, J.
_________________________
Stevens, J.*
*Retired Associate Justice of the Court of Appeal, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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[1] Unless otherwise indicated, all further section references will be to the Penal Code.
[2] All further rule references will be to the California Rules of Court.
[3] Having found the court did not commit prejudicial error and that a new sentencing hearing is not necessary, we need not decide whether a different judge should be appointed to hear the matter on remand.
