P. v. Peters



Filed 6/23/11 P. v. Peters CA1/4



NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, Plaintiff and Respondent, v. REGGIE PETERS, Defendant and Appellant.

A128981 (Alameda County Super. Court No. 160205)

I.
Introduction
Reggie Peters (appellant) appeals from a 12-year state prison sentence he received (subject to local custody credits) following his convictions for involuntary manslaughter (Pen. Code, § 192, subd. (b)[1]), with personal use of a firearm (§ 12022.5, subd. (a)), and a separate conviction for possession of a firearm by a felon (§ 12021, subd. (a)(1)). He contends the personal use enhancement must be vacated because the conduct underlying his involuntary manslaughter conviction, brandishing a firearm, was a misdemeanor. Alternatively, he argues that the aggravated 10-year term he received for personal use of a firearm was an abuse of discretion. We disagree with appellant’s first contention, and conclude that he has forfeited the second by failing to object at sentencing. Even if not forfeited, we conclude that the trial court’s choice of the aggravated term for the enhancement was supported by the evidence. Accordingly, we affirm the judgment.
II.
Procedural Background
Appellant was charged by information filed by the Alameda County District Attorney with murder (§ 187, subd. (a)), shooting at an inhabited dwelling (§ 246), and possession of a firearm by a felon (§ 12021, subd. (a)). Numerous sentencing enhancements were also alleged in the information.
Jury selection commenced on March 23, 2010,[2] and was completed on the following day. However, once seated, appellant waived a jury trial, and the jury was discharged. The matter was continued to April 14 for a court trial. A court trial took place over portions of six days, and concluded on April 26, with the court finding appellant guilty of involuntary manslaughter (§ 192, subd. (b)), enhanced by a true finding that appellant personally used a firearm in the commission of that crime (§ 12022.5, subd. (a)). He was also found guilty of being a felon in possession of a firearm (§ 12021, subd. (a)(1)). Appellant was acquitted of shooting at an inhabited dwelling (§ 246).
At sentencing, the court selected the involuntary manslaughter conviction as the principal term, and sentenced appellant to the low term of two years in state prison. It also imposed a consecutive, upper term of 10 years for the firearm use enhancement. In selecting the upper term, the court found that it was appellant who introduced the firearm into the confrontation with the victim, and that the victim was particularly vulnerable. A concurrent state prison term of two years was imposed for the firearm possession conviction. No objections to the sentence were made by appellant in the trial court.
III.
Evidence at Trial Supporting the Convictions
and Sentencing Choices

Because appellant does not claim the evidence presented at trial failed to support his conviction, we summarize that evidence only briefly.
Michael Augerlavoie (Mike) had known appellant for about 18 months before the incident leading to the current charges. The two met in a residential drug treatment program. Both men moved into an apartment building on 37th Street in Oakland, California, and they remained there for about a year until the shooting occurred. Appellant and Mike shared unit B in the apartment building. A woman named Brenda rented unit C, the other apartment on the same floor as unit B. The insulation in the walls between the two apartment units was “thin.” People talking could be heard through the walls.
Mike received a call on the morning of December 30, 2007, from appellant’s cousin informing him that appellant’s car had broken down in South San Francisco or Daly City. Mike went to that location, helped appellant fix a flat tire and gas up the vehicle, and the two then returned to Oakland.
Appellant seemed “stressed out” that day, and admitted that he had recently relapsed. Mike had to go to Hayward to pick up his grandson. Brenda, appellant, Bobby Jones (Bobby), and a few others were in Brenda’s apartment when Mike left. Appellant had a black automatic handgun in his lap. Mike told him to “get rid of it” inasmuch as Mike was on parole.
While he was on the road, Mike received a telephone call from his daughter Leona who told him that appellant had approached her with a gun in his hand and had made sexual gestures towards her. Leona was able to leave the apartment unharmed on the pretext that she needed to get some clothes.
When Mike returned to the apartment building in Oakland, he went looking for appellant. He found him in his own room. Appellant’s head was down and he was saying he was sorry. He still had the gun. Appellant was persuaded to put down the gun, but as Mike advanced to get it, appellant picked it up, threw Mike against the wall and put the gun to his own head crying and saying he was sorry. Appellant then put the gun to his chest. Mike ran out of the room and down the hallway with the intent to get his grandson, and leave the building. After he “grabbed” his grandson, he went outside and put the child in his truck. He then heard a second shot and drove away from the building with his grandson. As he drove away, he saw appellant outside the building.
Some time later, Mike learned that someone had been shot. A person named Marcel called Mike and told him that appellant had fired the gun, and the bullets went through the wall and hit Bobby.
Jimmy Jones (Jimmy), Bobby’s brother, testified that he went to Bobby’s apartment on the evening of December 30. Jimmy was there to pick up his brother and to take him out to help celebrate Jimmy’s birthday. He walked into the apartment and went directly to his brother’s room. The apartment was full of people. Bobby was laying on his bed watching television. Jimmy was in the room trying to get his brother to hurry up for about 45 minutes when he heard the first shot. It sounded like it came from outside. A short time later he heard a second shot. He looked over and heard Bobby say he had been hit. Jimmy helped Bobby to the ground when he started to fall. It looked like he had been shot in the chest.
Jimmy then went outside to get his car to take his brother to the doctor. He saw appellant and asked him who was shooting. Appellant went back into the house to help Jimmy. When he saw Bobby, appellant “lost it.”
Jimmy went back outside with appellant, who asked Jimmy to “get [him] out of there.” He also saw Mike. Mike and appellant talked, but Jimmy could not hear what was being said. Jimmy never saw a gun that day at the apartment building.
Mark Bennett, a criminalist from the Oakland Police Department, examined two bullet cartridges, and two fired bullets found at the scene. The bullets had been fired from the same weapon which was a High Point automatic .45-caliber pistol. He performed some tests on the bullets found at the scene and conducted an experiment to determine how far the two shots were fired from the wall of appellant’s room. Bennett’s testing led him to conclude that the shots were fired from between six inches and one foot from the wall of the apartment.
An investigator employed by the Alameda County District Attorney’s Office, Louis Cruz, testified that he interviewed appellant two times. During the interviews, appellant admitted that he fired the shots through the wall of his bedroom. No gun was found in a search of the premises after the shooting was reported. During the first interview, appellant claimed that it was Mike who had the gun in his hand when the shots were fired. The officer did not think that appellant generally was being truthful during that first interview, and appellant was told his story was not believable. However, some of the details of what appellant said appeared honest. The officer believed him when he said he had been drinking and using cocaine around the time of the incident.
IV.
Discussion
Appellant’s first claim of error relates to the trial judge’s imposition of a 10-year state prison enhancement based on a true finding that appellant personally used a firearm during the commission of the charged crime (§ 12022.5, subd. (a)). Appellant argues that this enhancement must be vacated because the conduct underlying the use of the firearm was a misdemeanor violation of section 417, subdivision (a)(2).[3]
While appellant admits in his brief that he was convicted of involuntary manslaughter, a felony, he claims that because the trial court found that the homicide resulted from misdemeanor conduct, the enhancement could not be imposed. He fails to cite any authority to support his novel argument.[4]
The firearm use enhancement imposed in this case, section 12022.5, subdivision (a), provides: “(a) Except as provided in subdivision (b), any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense.”
The Attorney General points out the obvious: appellant was not charged with misdemeanor brandishing of a firearm, but with involuntary manslaughter. That crime is charged under section 192, subdivision (b), which requires proof of the following:
“Manslaughter is the unlawful killing of a human being without malice. It is of three kinds: [¶] . . . [¶] (b) Involuntary—in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle. . . .”
Thus, involuntary manslaughter occurs from two separate types of misconduct resulting in the death of another. The first is death resulting from the commission of a misdemeanor, referred to by the parties and case law by the misnomer “misdemeanor manslaughter.” (See People v. Boyer (2006) 38 Cal.4th 412, 478.) The second type is death resulting from the commission of a lawful act in an unlawful or negligent manner, referred to as “criminal negligence manslaughter.” (See People v. Lee (1999) 20 Cal.4th 47, 54.) Under either theory, the manslaughter is a felony. That being the case, the enhancement was imposed for conduct constituting a felony and appellant’s claim of error fails.
Furthermore, in rebutting appellant’s argument, the Attorney General relies on People v. Read (1983) 142 Cal.App.3d 900. In that case, the defendant shot the victim with a shotgun, and was charged with involuntary manslaughter. The jury was instructed both on the theory of “misdemeanor manslaughter,” and “criminal negligence” manslaughter. (Id. at p. 902.) One of the arguments made by the defendant on appeal was that a conviction for involuntary manslaughter grounded on the misdemeanor conduct of brandishing a weapon (§ 417) cannot support the imposition of a firearm enhancement. In rejecting this argument, the court held: “The policy reasons favoring application of the statute to murder or assault with a deadly weapon where a firearm is used are equally applicable to involuntary manslaughter. The purpose of section 12022.5 is to discourage the use of firearms, and more fundamentally, to prevent people from being killed. (In re Culbreth [1976] 17 Cal.3d 330, 333, overruled on another ground in People v. King (1993) 5 Cal.3d 59, 79; People v. Aguilar [1973] 32 Cal.App.3d 478, 486.) [¶] Had appellant not brandished a firearm, the victim in this case might be alive. Imposition of an additional penalty for use of a firearm is consistent with the language and purpose of the statute, and is eminently reasonable.” (People v. Read, supra, at p. 906, italics omitted.)[5]
Even if appellant were correct and the firearm enhancement could not be imposed upon a finding of “misdemeanor manslaughter,” a proposition we reject, the trial court here found that the evidence supported a conviction for felony involuntary manslaughter on both theories, or forms of that crime. The trial court, in relevant part, stated: “A killing occurred during the commission of an unlawful act, not a felony, which is dangerous to human life under the circumstances of its commission. [¶] Here exhibiting a firearm in a rude and angry manner. [(§ ]417[, subd.] ([a](2).[)] A loaded gun in a small room and considering his emotional state, certainly fall within that definition of involuntary manslaughter. [¶] Also, the commission of an act ordinarily lawful, which would be handling a loaded gun by itself is not unlawful, but involves a high risk of death or great bodily injury without due circumspection or caution considering his mental state and state of sobriety at that time certainly falls within that definition. [¶] And therefore, the court wants to record to be clear that was the basis of the finding for the involuntary manslaughter.”
Accordingly, we find no error in the imposition of a 10-year prison term for the personal use of a firearm in the commission of a felony under section 12022.5, subdivision (b).
As to appellant’s alternative argument that, even if lawful, the trial court abused its discretion in imposing the 10-year aggravated term for the enhancement, we find that claim of error has been forfeited by the failure of counsel to object at the time of sentencing. “[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal.” (People v. Scott (1994) 9 Cal.4th 331, 356.) More recently, in People v. Jones (2009) 178 Cal.App.4th 853, the court rejected a claim that the trial court abused its discretion in imposing an aggravated term when the defendant failed to object at sentencing. (Id. at p. 859.)
In any event, the trial court indicated that it was selecting the aggravated term, in part, because the victim was particularly vulnerable. A finding that the victim was particularly vulnerable, if supported the record, is a valid basis upon which to select an aggravated term. (Cal Rules of Court, rule 4.421(a)(3); People v. Spencer (1996) 51 Cal.App.4th 1208, 1223 [victim vulnerability as an aggravating factor means defenseless, unprotected, accessible, assailable, or one who is susceptible to the defendant’s criminal act].) A single factor in aggravation justifies the imposition of the aggravated term. (See People v. Black (2007) 41 Cal.4th 799, 816.)
The record supports this finding. Bobby was in his bedroom preparing to go out with his brother Jimmy for a birthday celebration. Appellant was in an adjoining room having his “meltdown.” The walls between the two rooms were thin. The weapon used by appellant was an automatic .45-caliber handgun, and the shots were fired six to twelve inches from the common wall with Bobby’s bedroom. The bullets passed through the wall. There was no provocation, dispute, or warning that a firearm would be discharged and two bullets would be passing through the wall into his bedroom. Under these circumstances, Bobby was defenseless, accessible, susceptible, and unable to protect himself against appellant’s reckless and lawless act. (See, e.g., People v. Loudermilk (1987) 195 Cal.App.3d 996, 1007 [firing gunshots at sleeping victim involved particularly vulnerable victim].) Clearly, Bobby’s circumstances fell well within the definition of his being a vulnerable victim, as defined in this state’s felony sentencing regime. As such, the court’s choice of the aggravated sentence on the firearm use enhancement was well within the court’s discretion, and was supported by substantial evidence.
V.
Disposition
The judgment and sentence imposed are affirmed.





_________________________
RUVOLO, P. J.


We concur:


_________________________
REARDON, J.


_________________________
RIVERA, J.

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