P. v. Brim
Filed 6/19/13 P. v. Brim CA2/8
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PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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 EIGHT
THE
PEOPLE,
Plaintiff and Respondent,
v.
CORY
A. BRIM,
Defendant and Appellant.
B241573
(Los Angeles County
Super. Ct. No. MA054201)
APPEAL from a judgment of the Superior Court of
County. Hayden A.
Zacky, Judge. Affirmed.
Richard
B. Lennon, 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, Assistant Attorney General,
Scott A. Taryle and Tannaz Kouhpainezhad, Deputy Attorneys General, for
Plaintiff and Respondent.
__________________________
Defendant Cory Brim pleaded no contest to two counts of
the maximum sentence authorized by law.
He contends the trial court abused its discretion by denying probation
and imposing the maximum term. We
affirm.
FACTS
Defendant’s stepbrother was accused of robbing two people
in Bakersfield. After
the stepbrother’s arrest, the two robbery victims were harassed and fled to Lancaster where
they moved into a new home. In an
apparent attempt to prevent the victims from testifying against his
stepbrother, defendant and an accomplice undertook to discover the victims’ new
address. After learning where the
victims lived, appellant and his accomplice rented a car and, equipped with
stocking hats, gloves, and a firearm, drove to the residence. The victims were home at 11:30 p.m. when
defendant and his accomplice cut electrical power to the house, throwing it
into darkness. Peering outside, the
victims saw defendant and his accomplice, one of whom was holding a gun,
standing near the house’s “power switch.â€
The victims called the police, who arrested both men shortly
thereafter.
Defendant entered an open plea to the charge of
dissuading a witness. (Pen. Code,
§ 136.1(c)(1).) At sentencing,
several character witnesses testified on defendant’s behalf. His grandmother, grandfather, and mother
testified that he had lived with them since birth. He had been diagnosed in the second grade
with dyslexia and attention deficit order, and his learning disabilities
troubled him growing up. His father had
abused the family and neglected defendant.
Nevertheless, defendant had, according to his character witnesses, grown
to be a reliable and gentle person.
Defendant’s employer also testified on his behalf. Before his arrest, defendant had been
employed by a security company. A felony
conviction would have jeopardized his employment as a security guard, but
defendant’s supervisor testified that he would retain defendant in another role
if probation were granted. A Los Angeles
Police Department gang officer whose son, a close friend of defendant’s, was
killed by a gang member, testified that defendant had been like a son to him
and that he would continue to mentor him if probation were granted. Defendant also apologized to the one victim
in attendance.
In opposition to defendant’s character witnesses, one of
defendant’s victims spoke about how defendant’s crimes had forced the victim to
change his residence (which the prosecutor noted had required appellant and his
accomplice to locate the victim’s new home), affected his school work in
college, and caused his family to live in fear every day. Despite defendant’s courtroom apology to the
victim, the victim asked the court to impose the maximum sentence on defendant.
After the witnesses completed their statements, the trial
court stated it had read the probation department’s report and defendant’s
sentencing memorandum. On the record
before it, the court found that the sentencing factors in aggravation
outweighed those in mitigation. The
court observed that defendant had committed his offenses of threatening
witnesses from his own free will and volition, and those threats undermined the
justice system. The court also noted
that defendant and his accomplice had tried to conceal their own identities
from their victims by wearing gloves and stocking hats, and had rented a car to
drive to the victims’ home, thus showing sophistication and planning. Additionally, the court noted that the
victims were especially vulnerable because they were home at night with a small
child when defendant and his accomplice cut the electric power to the house,
casting the house into darkness. A
firearm was also used in the commission of the crime. The court thus denied probation and sentenced
defendant to the maximum term of four years on count one plus one year
(one-third the midterm) on count two.
The sentences were ordered to run consecutively.
Defendant filed a timely appeal. He argues that mitigating factors outweigh
aggravating factors and that imposing a maximum sentence for an accomplice with
no prior convictions constituted an abuse of the court’s discretion.
A.
The Standard of Review
is Abuse of Discretion
When a court relies on aggravating circumstances to
sentence a defendant to the high term, the defendant must show upon appeal that
the court abused its discretion. (
41 Cal.4th 825, 847 [“Even with the broad discretion afforded a trial
court under the amended sentencing scheme, its sentencing decision will be
subject to review for abuse of discretion.â€].)
An abuse of discretion is a decision so irrational or arbitrary that no
reasonable person could agree with it. (
367, 377.) So long as the trial court’s
decision was guided by applicable legal principles and policies, its decision
will not be disturbed. (
Imposition of the Upper
Term and Denial of Probation Was Not an Abuse of Discretion.
In sentencing determinations, a single aggravating
circumstance supported by sufficient evidence permits the court to exercise its
discretion to choose the upper term. (
799, 813.) An aggravating circumstance
is one that makes the offense “distinctively worse than the ordinary.†(Id.
at p. 817.) Aggravating
circumstances are listed in the California Rules of Court and include factors
such as the vulnerability of the victim, and an indication that the crime
required planning, sophistication, or professionalism. (California Rules of Court, rule 4.421(a)(3),
(6) & (8) [the list is not exhaustive (rule 4.421(c))].)
Here, the court cited as aggravating factors the planning
that went into the crime and the presence of a child inside the victim’s home
when the electric power was cut, making the victims especially vulnerable.
supported by the evidence. Defendant and
his stepbrother took the time to find the victims’ location, rented a car –
presumably to cover their tracks – and tried to conceal their identity during
the crime. When the victims spotted
them, defendant and his brother had just cut off the power to the house and
were armed with a gun.
name="_ftnref1" title="">
from testifying, and one victim testified at the hearing that his family indeed
lived in fear. Because the aggravating
factors are supported on the record, it cannot be said that the sentencing
decision was clearly arbitrary or capricious.
It was based on reasoned judgment and complied with applicable
sentencing rules, and was therefore not an abuse of discretion.
Defendant contends that mitigating factors outweighed the
aggravating factors identified by the court, and thus denying probation and
imposing the upper term was error. This
same argument, however, was rejected in Black. (See
People v. Black, supra, 41 Cal.4th at p. 814.) Under the determinate sentencing law, the
presence of one aggravating circumstance supports a trial court decision to
impose an upper term sentence. (
had discretion to choose the low, mid, or high term. The court clearly articulated the reasons for
its decision, and its judgment may not be overturned even if reasonable people
might disagree. (People v. Preyer (1985) 164 Cal.App.3d 568, 573.)
DISPOSITION
The judgment is affirmed.
RUBIN,
J.
WE
CONCUR:
BIGELOW, P. J.
GRIMES, J.
name="_ftn1" title="">[1] While the victim did not explicitly
testify to seeing defendant holding the gun, the presence of the weapon
nevertheless made the victim vulnerable.
