P. v. Hamblin

Filed 4/4/06 P. v. Hamblin CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yuba)

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Dennis Lee Hamblin pled guilty to one count of voluntary manslaughter (Pen. Code, § 192, subd. (a) -- subsequent statutory references are to this Code and rule references are the Cal. Rules of Court) and admitted an enhancement that he personally used a firearm in the commission of the offense (§ 12022.5, subd. (a)). The court sentenced him to the midterm of six years for the manslaughter conviction and a consecutive upper term of ten years for the personal use enhancement. On appeal, defendant argues the court erred by imposing the midterm sentence on the manslaughter conviction and the upper term on the personal use enhancement because the aggravating circumstances cited by the trial court also were used to impose the enhancement. In addition, he claims that neither aggravating circumstance is supported by substantial evidence. He requests that we modify the judgment to direct that low terms be imposed for both the offense and enhancement. For the reasons stated below, we conclude defendant has forfeited the first argument by failing to raise a dual use objection at sentencing; the dual use prohibition does not apply where the midterm is imposed on the qualifying conviction; there was no dual use of facts in any event; and substantial evidence supports the aggravating circumstances. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The victim was Michael Martinez. He and defendant had been friends for many years. Following his release from jail, Martinez returned to find his apartment had been burglarized. He suspected defendant was the likely culprit. Between 9:00 and 10:00 p.m. on the evening of August 14, 2003, an acquaintance drove Martinez to defendant's house. Defendant was not there, but Martinez found him in a neighbor's garage. Martinez accused defendant of committing the burglary. Defendant denied culpability. Following a heated argument, Martinez left, after warning defendant to return his property or suffer retaliation. Defendant thereafter received reports that Martinez had contacted gang members in Modesto in order to execute his threat.

Sometime before midnight, Martinez and two other men returned to defendant's residence. As they drove past defendant's house, defendant signaled for them to stop and instructed Martinez to get out of the car, which he did. As Martinez approached defendant (and reached for his pocket, according to defendant), defendant pulled out a semiautomatic firearm and shot Martinez several times, causing him to fall. Martinez managed to get up and retreat to the car, but defendant continued to fire, even while Martinez lay halfway in the car. Defendant then delivered several more shots at close range before ordering the driver to leave. Defendant completed the fusillade by shooting Martinez in the head at point blank range.

According to the pathologist who conducted the autopsy, Martinez suffered a total of twelve gunshot wounds (six of which were fatal), including five to his back, one to his jaw, and one to his forehead. The forehead wound resulted from a shot at a range of six to sixteen inches, and was delivered while Martinez was still alive.

The defense was premised on defendant's belief that Martinez was armed and was about to shoot defendant. An expert testified that individuals in traumatic situations, such as police officers, are often unaware of how many shots they fired in self-defense.

The foregoing evidence was adduced at a jury trial on an information alleging first degree murder (§ 187, subd. (a)) and an enhancement for the personal discharge of a firearm causing great bodily injury or death (§ 12022.53, subd. (d)). The jury acquitted defendant of first degree murder but reached an impasse on the lesser offenses, resulting in a mistrial.

Thereafter, pursuant to a plea agreement, defendant pled guilty to voluntary manslaughter (§ 192, subd. (a)) and admitted an enhancement alleging personal use of a firearm (§ 12022.5, subd. (a)).

The probation report identified two aggravating circumstances: the crime demonstrated planning (rule 4.421(a)(8)) and it was carried out in a callous, cruel or vicious manner (rule 4.421(a)(1)). In the People's sentencing brief, vulnerability of the victim was identified as an additional aggravating circumstance. (Rule 4.421(a)(3).) At sentencing, the court chose not to rely on planning as an aggravating circumstance because the jury had acquitted defendant of premeditated murder.[1] However, the court was persuaded to adopt the vulnerability of the victim as an aggravating circumstance. The court identified three mitigating circumstances: duress, insignificant criminal record, and successful completion of a prior grant of probation. (Rule 4.423(a)(4), (b)(1) & (b)(6).) The court found that the vulnerability of the victim when the final gunshots were delivered balanced the mitigating factors, and thus imposed the midterm sentence of six years for the voluntary manslaughter conviction. The court imposed a 10-year upper term on the section 12022.5, subdivision (a) enhancement due to the cruel, vicious or callous nature of defendant's acts.

Defense counsel did not object to the sentence on dual use grounds, instead arguing that the aggravating factors were factually unsupported.

DISCUSSION

I

Dual Use

A. Forfeiture

Defendant initially argues the court made an impermissible dual use of facts, because both aggravating circumstances the court cited -- the cruel, vicious and callous manner of the killing as well as the vulnerability of the victim -- were premised on defendant's use of a gun, which itself was the factual predicate for the enhancement.

Respondent contends defendant forfeited this argument by neglecting to object on this basis at sentencing. Defendant replies that he did argue that victim vulnerability was inapplicable to the facts, and that this argument should be construed to include a dual use objection, particularly since the prosecutor indicated he wanted to avoid any dual use problem. Even if we expansively construe the argument defendant made at the sentencing hearing, it still failed to satisfy his obligation to object on dual use grounds. Similarly, the prosecutor's expressions of concern regarding dual use by no means satisfied defendant's obligation to object. Following the prosecutor's argument, defense counsel again addressed the merits of the sentencing factors, but at no point did he lodge a dual use objection. Consequently, the dual use objection was forfeited. (People v. Scott (1994) 9 Ca1.4th 331, 356-357; People v. Partida (2005) 37 Cal.4th 428, 433-435 [appellate review precluded unless party states precise basis of objection].)

B. Dual Use Does Not Apply to Defendant's Sentence

An objection based on a dual use of facts did not apply in any event. The prohibition is based on section 1170, subdivision (b), which provides in part: â€