P. v. Osbourn

Filed 5/15/07 P. v. Osbourn CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Arthur Kenneth Osbourn was sentenced to 34 years state prison after pleading guilty to two counts of attempted murder (counts 1 & 2; Pen. Code,  664/187, subd. (a))^[1]and one count of making terrorist threats (count 3;  422), and admitting that he personally used and intentionally discharged a firearm in the commission of the offenses ( 12022.5, subd. (a)(1); 12022.53, subd. (c)). He appeals, contending that the trial court abused its discretion in imposing a nine-year consecutive sentence on count 2 for attempted murder and intentional discharge of a firearm. We affirm.

Facts and Procedural History

On July 28, 2004, appellant entered a Simi Valley residence and assaulted three teenagers with a semiautomatic handgun. Sarah Z. (age 15) and Megan T. (age 15), and Jonathan A. (age 15) were upstairs watching television. Appellant told Jonathan to go down stairs and quiet the dogs. Sarah and Megan were ordered to stay in the bedroom and not use their cell phone.

Appellant pointed the handgun at Megan's head, then Sarah's head, and asked who wanted to die first. He said that he could rape one or both of them, and fired a shot to scare them. After Jonathan returned, appellant fired a second shot. Sarah became hysterical and suffered an asthma attack.

Appellant allowed Sarah and Megan to leave but threatened to shoot Jonathan in the head right then. Jonathan slammed the bedroom door shut, ran outside, and yelled at Megan to run as fast as she could. Following Megan, Jonathan zigzagged down the street dodging bullets.

Simi Valley Police Officer Patrick Coulter saw appellant take a shooting stance, aim, and shoot at Megan and Jonathan. Appellant chased them, reloading the handgun as he ran. A bullet struck a house window and a second bullet hit a palm tree next to another house.

Appellant was arrested with a throwing knife and eight rounds of ammunition on his person. Waving his Miranda rights, appellant told a detective that he was looking for some teenagers to kill. Appellant (age 16) said that he hated teenagers, that he "needed to kill," and that he was "tryin' to take [th]em down" as the victims ran. Appellant also intended to shoot it out with the police.

Appellant was tried as an adult. On January 24, 2006, he entered into a written plea agreement providing for a maximum sentence of 40 years state prison.

At the sentencing hearing, Doctor Patrick Barker, a clinical psychologist testified that appellant suffered from paranoid schizophrenia and recurrent major depressive disorder with psychotic features. Doctor Barker opined that the mental illness contributed to appellant's homicidal impulses but stated that appellant knew what he was doing when he committed the offenses and knew that it was wrong.

The probation report stated that appellant assaulted and threatened other people while in custody. In one incident, he stabbed an inmate in the neck with a pencil, threw the victim on the floor, and punched the victim. Appellant said that "I want to kill him," "I don't like kids," and "If I can't kill out there then I will kill in here." In a second incident, appellant beat an inmate. Appellant said, "I did it because he was the weakest link, and he got lucky I didn't stab him with the pencil."

Defense counsel conceded that appellant committed "an absolutely terrible, terrible act" but requested that the trial court impose the lowest possible sentence: 25 years 8 months. The prosecution argued that the crimes were especially egregious and that appellant was extremely dangerous. It urged the trial court to impose consecutive sentences totaling 38 years so that appellant "faces realtime punishment for each victim."

Appellant was sentenced to 34 years state prison based on the following calculation: Selecting count 1 (attempted murder of Jonathan A.) as the principal term, the trial court sentenced appellant to a five-year low term and added twenty years for intentional discharge of a firearm ( 12022.53, subd. (c)). On count 2 for attempted murder of Megan T., the trial court imposed a nine-year consecutive sentence (one-third the midterm, plus one-third the twenty-year enhancement for intentional discharge of a firearm;  12022.53, subd. (c)). On count 3 for making terrorist threats, the court imposed a concurrent six year sentence (two year midterm plus four years for personal use of a firearm;  12022.5, subd. (a)(1)).

Discussion

Appellant argues that the trial court abused its discretion in imposing a nine-year consecutive sentence on count 2. He claims there are mitigating circumstances, such as his age and mental illness, that warrant a concurrent sentence. Appellant, however, did not specifically object to the consecutive sentence and is precluded from raising the issue for the first time on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353-355; People v. Davis (1995) 10 Cal.4th 463, 551-552.)

Waiver aside, appellant makes no showing that the sentence is arbitrary, capricious, or irrational. A trial court's decision to impose consecutive sentences is discretionary and there is no statutory presumption in favor of concurrent sentencing. (People v. Jenkins (1995) 10 Cal.4th 234, 254; People v. Hernandez (2007) ___ Cal.App.4th __, __ [2007 DJDAR 2577, 2578]; People v. Reeder (1984) 152 Cal.App.3d 900, 923.)

The criteria affecting the decision to impose consecutive terms are set forth in California Rules of court, rule 4.425, subdivision (a) which provides that the trial court may consider: "Facts relating to the crimes, including whether or not: []  (1) The crimes and their objectives were predominately independent of each other; []  (2) The crimes involved separate acts of violence or threats of violence; []  or (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior."

The trial court may also consider circumstances in mitigation or aggravation. (Cal. Rules of Ct., rule 4.425, subd. (b).) Consecutive sentences may be imposed where the crime involves multiple victims (People v. Valenzuela (1995) 40 Cal.App.4th 358, 363-365) or where the defendant commits acts of violence against separate victims. (People v. DeLoza (1998) 18 Cal.4th 585, 594-595; People v. Calderon (1993) 20 Cal.App.4th 82, 87.)

Although appellant claims that his age, lack of criminal record, and mental problems are mitigating factors, the trial court reasonably concluded that it did not outweigh the threat to public safety, the vulnerability of the victims, and the violent manner in which appellant committed the crimes. (Cal. Rules of Ct., rule 4.421(a)(1) and rule 4.421(a)(3).)

The trial court's findings are supported by the probation report which states: "Though the defendant is young and has no prior criminal record, those facts do change the violent and heinous nature of the offenses he has committed. First he entered the private home where 15 year old victims Jonathan, Megan, and Sarah were simply visiting on a summer day. All three victims were strangers to him. Next, while armed, he threatens to rape and kill Megan and Sarah, at one point discharging the gun to frighten them, thus causing Sarah such distress she has an asthma attack. He allowed Sarah to leave, then when Megan and Jonathan manage to escape, he chases them, takes aim, and discharges the gun in their direction several times in an attempt to take their lives. The most disturbing part of this is that the defendant told the police that he did it because he 'does not like humans,' 'hates teenagers,' and he had a 'strong desire to kill for some time.'"

We reject the argument that the trial court abused its discretion in imposing a nine-year consecutive sentence on count 2. (People v. Giminez (1975) 14 Cal.3d 68, 72.) Only one factor in aggravation was necessary to support the consecutive sentence. (People v. Davis, supra, 10 Cal.4th at p. 552.) Appellant cites no authority that the trial court was obligated to impose the lowest possible sentence based on a concurrent sentence calculation.

The task of weighing aggravating and mitigating factors is singularly one for the trial court. (People v. Calderon, supra, 20 Cal.App.4th at p. 87.) A sentencing decision " 'will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." [Citations.]' [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

Kevin J. McGee, Judge

Superior Court County of Ventura

______________________________

California Appellate Project, under appointment by the Court of Appeal, Jonathan B. Steiner, Executive Director and Richard B. Lennon, Staff Attorney, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C Hamanaka, Senior Assistant Attorney General, Theresa A. Patterson, Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.

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^[1]Unless otherwise stated all statutory references are to the Penal Code.