P. v. Fisher
Filed 6/10/13 P. v. Fisher CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
AJANI S. FISHER,
Defendant and Appellant.
B241270
(Los Angeles
County
Super. Ct.
No. BA364477)
APPEAL from
a judgment of the Superior Court
of
County. Jose I.
Sandoval, Judge. Affirmed.
Maureen L.
Fox, 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, James William Bilderback
II, Supervising Deputy Attorney General, and Tita Nguyen, Deputy Attorney
General, for Plaintiff and Respondent.
____________________
Defendant Ajani Salim Fisher was charged by information
with one count of murder (Pen. Code, §
187, subd. (a)),
title="">[1] with special
allegations that his victim was over 60 years old (§ 1203.09, subd. (f)). The jury acquitted defendant of murder, but
convicted him of the lesser included offense of
(a)) and found the special allegation to be true. At sentencing, the trial court denied
probation and sentenced defendant to the high term of 11 years in
abused its discretion when it imposed the high term, reasoning that mitigating
factors outweighed the factors in aggravation.
He also contends the error amounts to a violation of his
defendant failed to object at the sentencing hearing. We do not find waiver, but we conclude the
trial court did not abuse its discretion.
We also reject defendant’s attempt to cast his claim of sentencing error
as a federal due process claim.
On November 9, 2009, defendant’s wife, Taneshia Turner, and
two children were at the Saki Liquor store on West
Jefferson Boulevard in Los
Angeles. Turner
often frequented the store, staying for 30 or 40 minutes at a time to play the
scratch lottery. The store was equipped
with cameras, and a video of that day’s events, along with a transcription,
were shown to the jury. Store clerk,
Yongwon Lee, asked Turner why she had been in the store for so long. Turner responded, “Excuse me. Don’t f------ talk to me like that. Do you understand? I’ll stand here as long as I’m buying
s---.†Lee said, “Watch your f------
mouth, you lady, okay?†Turner told Lee
to “watch [his] mouth.†She asked for
the store manager, Connie Chang, who was away but returned to the store later
that day. Turner then asked Lee for his
name. Lee told Turner to leave, and
Turner told him she would not leave, and he could call the police. The two continued to argue, culminating in
Lee again telling Turner to leave, that she was a “b----,†and to “suck [his]
d----.†Turner eventually left.
According
to Turner, she was upset and crying after her encounter with Lee, and told
defendant what Lee had said to her. A
short time after her argument with Lee, she returned to the liquor store to
speak with the store manager, and brought defendant along for support. The video and transcript showed that they
spoke with the store manager, Chang, and complained about how Lee had treated
Turner. Lee joined in the conversation,
arguing that Turner’s children were “hanging around, playing around†the
store. Defendant told Chang, “I’m pissed
off[.] I would never call you [a]
b----. I would never tell you something
like that. This is what this man is
telling my wife – [¶] . . . [¶] –
in front of my children.†Lee
responded, “Okay. I’m sorry. I apologizing.†However, Lee added that Turner was also
responsible for their argument.
Defendant retorted that “[m]y wife never cursed you. [¶] . . . [¶] [Y]ou called her a b----.†Lee said, “We don’t want to argue with you in
the store.†Lee suggested that “we talk
man to man okay. Would you come on out,
please?â€
Turner
continued talking with Chang and another store employee while defendant and the
victim went outside. According to Chang,
defendant soon came back into the store, pulled Turner’s arm, and told her,
“Let’s go, let’s go.†He was in a hurry,
and the two quickly left. Chang ran
outside and saw Lee lying in the street, bleeding. She also saw defendant and Turner fleeing in
a car.
Several
witnesses outside the store saw defendant beating Lee. Bobby Johnson was a passenger in his mother’s
car. He saw defendant on top of another
man, beating him with this fists and his elbow.
Johnson saw the dentures fly out of Lee’s mouth. He saw defendant go inside the liquor store
after the beating.
Veronica
Lopez was outside her place of employment, across the street from the liquor
store, when she saw two men leaving the liquor store. She did not hear them say anything before
defendant started punching Lee in the face.
Lee covered his face with his hands.
Defendant hit Lee 10 or 12 times while Lee was still standing. Lee fell to the ground, still covering his
face with his hands. Defendant held Lee
down with his left hand and continued hitting Lee with his right hand, striking
him six or eight times. Lopez heard a
sound like Lee’s head hitting the pavement.
She screamed for defendant to stop hitting Lee, and threatened to call
police. Defendant did not react. A few moments later, defendant stopped
hitting Lee and went into the liquor store.
He emerged with a woman, and the two quickly walked away.
Gwendolyn
Creighton saw one man hitting the other.
One of the men was knocked to the ground, and the other crouched over
him, using his elbow to slam the other man’s head into the pavement, more than once. She called 911, reporting that she saw a
black man beating an Asian man, and “bouncing†his head off the sidewalk.
Detective
Robert Lait responded to the crime scene.
Based on information obtained from store employees and store
surveillance videos, Detective Lait contacted Turner. Turner told him she was at the store with her
husband that day, but would not provide her husband’s name. However, officers were able to determine
defendant’s identity, and arrested him.
Defendant did not have any significant injuries; just some redness on
his left elbow and a small scrape on his left knee.
Paramedics
transported Lee to the emergency room.
He was pronounced dead later that evening. He suffered from a broken neck, a skull
fracture, a fractured cheek bone, hemorrhaging, and a subdural hematoma. The cause of death was a fatal beating to the
head with a blunt object.
At the time
of the incident, defendant was 33 years old, 5 feet 10 inches tall, and weighed
215 pounds. Lee was 62 years old, 5 feet
7 inches tall, and 170 pounds.
Defendant
testified he was upset on the day of the incident, because he was finalizing a
divorce from Turner. He wanted to try
and make the marriage work. He
accompanied Turner to the liquor store to talk to the store manager about Lee’s
conduct. As they were talking to the
manager, Lee suggested that he and defendant talk outside, man to man. Lee walked out of the store, and beckoned
defendant to join him. Defendant
eventually walked outside, and the two started arguing. Lee then “swung and hit†defendant. Defendant punched Lee in the head, Lee
grabbed defendant, and the two wrestled.
Defendant was on top of Lee and struck him in the head with his
forearm. Defendant hit Lee three or four
times while he was on the ground.
Defendant admitted he hit Lee hard enough to kill him.
Turner
testified that Lee and defendant had been outside for five to seven minutes
before defendant returned to the store, looking “kind of scared and in a
hurry.†He told Turner, “Let’s go.†As they were leaving, Turner saw Lee lying on
the ground. She asked defendant to drive
her to her mother’s house. They did not
discuss what happened, but Turner knew something bad had happened and was
scared. Detective Lait testified that
Turner told him that as she and defendant drove away, defendant told Turner she
was “better off not knowing [what happened] . . . . If you don’t know nothing, you can’t say
nothing.â€
Several witnesses testified to
defendant’s good character. Turner did
not consider defendant to be a violent man.
He never hit Turner or used corporal punishment on their children. Defendant’s cousin, Carl Calhoun; his uncle,
Reverend Reginald Calhoun; and defendant’s mother, Sylvia Fritz-Fisher, all
testified that defendant is an honest, nonviolent man.
The jury acquitted defendant of
murder, but found him guilty of voluntary manslaughter. The People and defendant filed sentencing
memoranda with the court. The People
recommended the maximum period of confinement, contending the vicious nature of
the beating on a vulnerable victim justified imposition of the high term.
Defendant’s memorandum included
numerous certificates of completion of jail programs, such as anger management,
as well as letters from family and friends.
The memorandum urged there were many factors in mitigation, such as the
victim was the provoker (Cal. Rules of Court, rule 4.423(a)(2)); the crime was
committed because of an unusual circumstance, such as great provocation, and is
unlikely to recur (Cal. Rules of Court, rule 4.423(a)(3)); defendant had no
prior criminal record (Cal. Rules of Court, rule 4.423(b)(1)); and defendant
agreed to pay restitution to the victim’s family (Cal. Rules of Court, rule
4.423(b)(5)). The memorandum also
contended defendant was remorseful, accepted blame, had a continuous work
history, has community and family ties, had no history of violence, and had
exemplary behavior in jail.
At the sentencing hearing, several
witnesses, including defendant’s cousin, mother, and former mother-in-law,
Antoinette Porter, testified that defendant was a good person, a good father,
and was not violent. Defendant also
testified. He apologized to Lee and
Lee’s family, and said that he was remorseful.
On cross-examination, defendant admitted he did not call an ambulance
after beating Lee, and that his first call after the fight was to his own
attorney.
Defense counsel requested the low
term. The prosecutor contended the high
term was justified by the viciousness of the crime and that defendant only
looked out for his own interests when he left the scene of the crime and called
his attorney.
The trial court observed that the
video surveillance in the liquor store recorded defendant coming in after the
fight, looking calm, and then leaving with Turner. The court also noted that witnesses testified
“to the particularly violent nature of the beating. At least one witness talked about Mr. Lee’s
head bouncing on the sidewalk or pavement.â€
The court found the particular nature of the crime may be considered as
an aggravating factor. “And I’ll note
that the victim was vulnerable. The
physical distinction between Mr. Fisher, his size, and the victim himself was
made plain to the jury and is evident in the exhibits admitted into
evidence.†The court then sentenced
defendant to the high term of 11 years.
The court acknowledged there were circumstances in mitigation, but found
the “brutal beating†justified imposition of the high term. Defendant did not object after the trial
court stated its reasons, and the sentence was pronounced.
Defendant timely appealed.
Defendant contends the trial court
abused its discretion when it imposed the high term of 11 years in state
prison, reasoning the factors in mitigation outweighed the aggravating
factors. Respondent contends any claimed
error has been waived because defendant made no objection to the court’s
imposition of the high term or the stated reasons for the sentence. (See People
v. Scott (1994) 9 Cal.4th 331, 354, 356 (Scott) [“complaints 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 appealâ€].) Defendant contends he did object to the sentence by
arguing at the hearing and stating in his sentencing memorandum that a low-term
sentence was appropriate.
We agree that
defendant’s arguments in his memorandum and at the hearing are tantamount to an
objection to the trial court’s weighing the factors in support of the high
term. On this record, an additional
objection after imposition of the high term would have been redundant. The purpose of requiring an objection to
preserve a claim is to promptly prevent and correct errors by calling the court’s
attention to them. (Scott, supra, 9 Cal.4th at
p. 353.) Defendant’s arguments in his
memorandum and at the hearing were sufficient to meet this objective.
Nevertheless, we find the trial
court did not abuse its discretion.
Whether to impose the upper term is a decision resting in the trial
court’s sound discretion. (§ 1170, subd.
(b).) In determining the appropriate
term, the court may consider the record in the case, the probation report,
evidence introduced at the sentencing hearing, and “any other factor reasonably
related to the sentencing decision.â€
(Cal. Rules of Court, rule 4.420(b).)
The court “shall select the term which, in the court’s discretion, best
serves the interests of justice.†(§
1170, subd. (b).)
A trial court may base an upper
term sentence upon any aggravating circumstance the court deems significant,
subject to specific prohibitions not at issue here. The court’s discretion to identify
aggravating circumstances is limited only by the requirement they be reasonably
related to the decision being made. (
825, 848 (Sandoval).) The trial court “shall state the reasons for
its sentence choice on the record at the time of sentencing.†(§ 1170, subd. (c); see also Sandoval,
rule 4.420(e).) However, the court is
not required “to cite ‘facts’ that support its decision or to weigh aggravating
and mitigating circumstances,†nor must it provide a “ ‘concise statement
of the ultimate facts that the court deemed to constitute circumstances in aggravation
or mitigation.’ [Citations.]†(Sandoval,
at p. 847.)
A trial court’s sentencing decision
will not be disturbed on appeal unless it is so irrational or arbitrary that no
reasonable person could agree with it. (
853, 860; People v. Carmony (2004) 33
Cal.4th 367, 377; see also Sandoval,
exercise its discretion in sentencing, relies upon irrelevant circumstances, or
relies upon circumstances that constitute an improper basis for the
decision. (Sandoval, at pp. 847-848.)
The burden is on the party attacking the sentence to show the sentencing
decision was irrational or arbitrary, and an appellate court will not
substitute its judgment for that of the trial court. (People
v. Jones, at p. 861.) “Even if a
trial court has stated both proper and improper reasons for a sentence 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.]’ †(
Here, the court found as factors in
aggravation that the crime involved great violence (Cal. Rules of Court, rule
4.421(a)(1)), and the victim was particularly vulnerable due to the size
disparity between Lee and defendant (Cal. Rules of Court, rule
4.421(a)(3)). The existence of only one
aggravating factor is sufficient to support imposition of the upper term. (People
v. Black (2007) 41 Cal.4th 799, 813.)
The court acknowledged there were factors in mitigation, such as
defendant not having a criminal record (Cal. Rules of Court, rule 4.423(b)(1)),
but found that the extreme violence of the crime and physical advantage that
defendant had over Lee outweighed the factors in mitigation. The trial court was well within its
discretion to impose the high term.
Defendant’s callous disregard for Lee’s safety, and preoccupation with
his own (venting his marital frustration on an old man, fleeing the scene, and
calling a lawyer rather than an ambulance for help) support imposition of the
high term. Defendant is asking this
court to substitute its judgment for the trial court’s, which we cannot do. (People v. Jones,
supra, 178 Cal.App.4th at p. 861.)
Because the trial court did not act
in an arbitrary fashion, and properly exercised its discretion when it imposed
the upper term, defendant’s due process claim is without merit. (See People v. Hartshorn (2012) 202 Cal.App.4th 1145, 1153
[due process protects against arbitrary government action].)
The judgment is affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
GRIMES,
J.
WE CONCUR:
BIGELOW, P. J.
RUBIN, J.
All further undesignated
statutory references are to the Penal Code.
