P. v. Miller
Filed 2/24/12 P. v. Miller CA2/4
NOT TO BE PUBLISHED IN THE
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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff
and Respondent,
v.
ROBIN MILLER,
Defendant
and Appellant.
B229662
(Los Angeles County
Super. Ct. No. NA081509)
APPEAL
from a judgment of the Superior Court of
County, Tomson T. Ong, Judge. Affirmed.
Joy
A. Maulitz, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson and
Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Robin Miller appeals from
the judgment entered following his conviction by jury of
used a knife during the commission of the offense and personally inflicted
great bodily injury upon the victim.
(Pen. Code, §§ 664/187; 12022, subd. (b); 12022.7, subd. (a).)
abused its discretion by imposing the upper term sentence for the attempted
murder. We affirm.
On the night of
March 21, 2009, Vincent McLeod was at the Springbok Bar & Grill with his
fiancée and friends, including his best man for the upcoming wedding, Gurjit
Samra. At approximately 10:30 p.m.,
McLeod prepared to leave and walked to the parking lot accompanied by
Samra. They stood by McLeod’s car and
talked. Samra noticed a man walking in
the area of the restaurant, but paid little attention to him. As he and McLeod continued to converse, Samra
saw the man standing behind McLeod’s shoulder.
Samra assumed the man, who appeared homeless, was going to ask for
directions or money. Without speaking a
word, the man swung his arm and struck McLeod in the neck. McLeod felt a
him, and saw defendant.
name="_ftnref3" title="">[3] McLeod felt blood coming out of his
neck. He put his hand on the wound to
put pressure on it and ran back into the bar.
While inside, he removed his hand, causing blood to gush from the wound. A nurse got McLeod to lie on the ground. She recognized that McLeod’s artery had been
punctured and she used towels to maintain pressure on the wound until
paramedics arrived.
Samra
took a step toward defendant and asked, “What the fuck was that” After Samra repeated the question several
times, defendant raised his fist and said, “Do you want one, too” At that point, Samra noticed that defendant
had a Swiss army knife in his hand.
Samra responded, “No.” Defendant
backed up, stopped to pick up a bag, and walked away.
Defendant
was apprehended by police a short distance away. A Swiss army knife was found in his right
front pants pocket. Defendant told the
officer who detained him that he had stabbed someone. At the station, defendant admitted to a
second officer that he stabbed a man in the neck and wanted to kill him. When asked why he stabbed the victim,
defendant said, “I stabbed him in the neck because I wanted the other guy to go
down to the water with me for some personal business.” He also stated, “I had to pop some air into
some of those idiots.” The officer continued
to speak to defendant to ascertain whether he suffered from
McLeod
spent seven days in the hospital, undergoing surgery to repair his carotid
artery and a jugular vein. As a result
of the attack, McLeod has limited range of motion.
DISCUSSION
Defendant’s
attorney filed a sentencing memorandum, asking the court to sentence defendant
to the low term for the attempted murder.
With the enhancements, the resulting sentence would be nine years. Counsel acknowledged there were two
aggravating factors, the infliction of great bodily injury and the use of a
weapon, but argued defendant was not subject to additional time for those
factors because of the alleged enhancements.
Counsel argued substantial evidence demonstrated that although defendant
was legally sane at the time he stabbed the victim, he suffered from mental
illness. The attorney contended there
were four mitigating factors: (1) the crime
was committed because of an unusual circumstance (defendant’s mental illness)
that is unlikely to recur; (2) defendant’s mental illness significantly reduced
his culpability for the crime; (3) defendant had an insignificant criminal
record; and (4) but for his statutory ineligibility for probation, he would be
granted probation.
The prosecutor
also submitted a sentencing memorandum.
She asserted the upper term for the attempted murder was appropriate,
citing three circumstances in aggravation:
(1) the victim suffered great bodily injury; (2) defendant used a knife
during the commission of the crime; and (3) the victim was vulnerable. She conceded that defendant had admitted
wrongdoing at an early stage.
At the sentencing
hearing, McLeod addressed the court. He
said that due to the injuries suffered in the attack, he was unable to pursue
his professional goal of being a counterintelligence agent, a job for which he
had trained. McLeod’s wife stated the
attack had changed their lives forever, and noted her husband would never be
able to pursue his dreams. Defendant
expressed remorse for his actions, which he characterized as a product of his
mental illness.
The court
acknowledged defendant’s mental illness; however it concluded the crime involved
“great callousness and cruelty and viciousness, and under 4.421 of the
California Rules of Court that is a very serious [factor in] aggravation.” Observing that defendant attacked the victim
from behind and without warning, the court found the victim vulnerable,
determining that to be a second aggravating factor. The court stated: “I have looked at the background of the
defendant. I have looked at the
probation officer’s report. I see those
two aggravating factors are so substantial . . . that this warrants
the maximum term allowed by law.” It
sentenced defendant to 13 years.
Defendant contends
the court abused its discretion by imposing the upper term and seeks remand for
a new hearing. He does not dispute the
court’s conclusion that the crime was callous, cruel, and vicious and that the
victim was vulnerable. Instead,
defendant suggests the assault was “a product of [his] mental illness, an
overarching mitigating factor that the trial court misapprehended and
failed to address properly.” Defendant
alleges that by failing to consider the ramifications of his mental illness,
the court did not properly consider the offender as well as the offense. Moreover, he urges, the court erred by
finding the jury’s sanity verdict relevant to the issue whether his mental
illness was a mitigating factor.
Citing
353, the Attorney General contends defendant forfeited his claim by failing to
object to the court’s imposition of the upper term. We disagree.
By filing a sentencing memorandum, defendant clearly set forth his
argument that a sentence less than the upper term for attempted murder was
appropriate. In imposing the upper term,
the court did not consider any factor not discussed by the parties. Thus, no further objection was necessary to
preserve the issue for purposes of appeal.
(See People v. Downey (2000)
82 Cal.App.4th 899, 909, fn. 4.)
A trial court’s
sentencing decision is subject to review for abuse of discretion. (People
v. Sandoval (2007) 41 Cal.4th 825, 847.)
The discretion “must be exercised in a manner that is not arbitrary and
capricious, that is consistent with the letter and spirit of the law, and that
is based upon an ‘individualized consideration of the offense, the offender,
and the public interest.’
[Citation.]” (
The thrust of
defendant’s argument is that his mental condition mandates a sentence other
than the upper term. The problem with
his position is that it ignores the circumstances of the offense. The vicious nature of the attack could very
well have caused the victim’s death but for the assistance of a nurse who
fortuitously happened to be present at the bar.
The victim’s injuries were severe and resulted in the abandonment of his
professional goal. In addition, because
defendant perpetrated the assault by approaching the victim from behind and
striking without warning, the trial court properly determined the victim was
vulnerable.
The trial court
considered the circumstances of the offense and the offender and concluded the
former justified the imposition of the upper term. Although we recognize that reasonable people
might disagree with the sentence imposed, an appellate court is not authorized
to substitute its judgment for that of the trial court. (People
v. Carmony (2004) 33 Cal.4th 367, 377.)
“[A] trial court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree with it.” (Ibid.) As the court’s decision to impose the upper
term is neither irrational nor arbitrary, reversal is not warranted.
Finally, we
address defendant’s claim that the court improperly considered the jury’s
finding at the sanity phase. Even if we
assume the court stated an improper reason for its sentencing choice, “a
reviewing court will set aside the sentence only if it is reasonably probable
that the trial court would have chosen a lesser sentence had it known that some
of its reasons were improper.
[Citation.]” (
492, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1165.) Here, as we have noted, in imposing sentence
the trial court found the aggravating circumstances more compelling than
defendant’s mental condition at the time of the commission of the crime. It is not reasonably probable that the court
would have imposed a lesser sentence had it known it was improper to consider
the jury’s sanity verdict.
The judgment is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA,
J.
We concur:
EPSTEIN, P.
J.
MANELLA, J.
name="_ftn1" title="">[1]
the commission of the crime.
name="_ftn2" title="">
[2]
forth an abbreviated version of the facts.
