P. v. Randolph

Filed 6/21/07 P. v. Randolph CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Daniel J. Didier, Judge. Affirmed.

H. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., and Bill Lockyer, Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Robert M. Foster, Deputy Attorneys General, for Plaintiff and Respondent.

Quentel Lamont Randolph appeals from the judgment sentencing him to the midterm of three years in prison after he pleaded guilty to inflicting corporal injury on the mother of his child in violation of Penal Code section 273.5, subdivision (a).[1] On appeal, he contends the court abused its discretion by imposing the midterm of three years when there was a factor in mitigation present. Alternatively, he contends his attorney rendered ineffective assistance of counsel by failing to object to the midterm sentence. We affirm.

FACTS

Randolphs guilty plea was entered before the preliminary hearing on the felony charge. Thus, there is no record of the facts but for the statement contained in the plea form: On 3-24-2003 in O.C., [Randolph] unlawfully inflicted a corporal injury resulting in a traumatic condition upon the mother of [his] child. As for the multiple probation violations resulting in the revocation, the record supports the finding that he sent multiple letters to the victim at her home and he telephoned her at her place of employment, he failed at least one drug test, he failed to appear for a prearranged appointment with his probation officer, and he failed to notify his probation officer of his residential move in advance.

At the imposition of judgment, the trial court stated that Mr. Randolph has repeatedly violated the probationary terms and [is] unamenable to probation. [] He appears as a continuing threat to the victim. And in the courts opinion has no interest in complying with the terms of any existing restraining orders. The courts tentative [ruling] is to deny the probation and sentence Mr. Randolph to the midterm of three years state prison. And the court would also note a restitution amount of $1112.12. Probation was requested by the defense although it noted evidence of circumstances in aggravation[2] but emphasized that Randolph had no prior record and acknowledged wrongdoing at an early stage, which were factors in mitigation. (See Cal. Rules of Court, rules 4.423(b)(1) & (3).) The court rejected probation, imposing the midterm.

DISCUSSION

Imposition of the Midterm

Randolph contends the sentencing court abused its discretion when it denied probation and ordered him to prison for the midterm as provided by law. Specifically, he argues the only valid information before the court supported nothing more than the imposition of the low term, and thus the sentence was erroneously imposed. He concedes, however, that the burden is on him to show the courts decision was a clear abuse of discretion (see People v. Giminez (1975) 14 Cal.3d 68, 71-72), and he acknowledges that sentencing courts possess the power to balance all relevant factors in qualitative or quantitative ways. (See People v. Roe (1983) 148 Cal.App.3d 112, 119.)

Randolph does not directly argue the evidence is insufficient to support the revocation finding. On the other hand, he does complain that his own testimony excused his conduct. However, he cannot attack the evidence sufficiency, in that the trial court specifically found the probation officer and the victim to be the more credible witnesses and accepted their testimony that Randolph committed the acts comprising the violations. In this case, the credibility determination resolves the issue of whether Randolph violated his probation. (See generally 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal, 149-151, pp. 396-398.) 

Randolph then contends that the most the trial court should have found was that his violation warranted the low term in prison. He arrives at this conclusion by resting on the factors in mitigation argued by defense counsel at the hearing and ignoring the trial courts explicit credibility findings. However, since the filing of Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856], a trial court can only impose a midterm sentence unless certain factual findings are expressly made by the jury supporting a deviation from that midterm. (Id. at p. __ [p. 862].) Randolph responds in a letter brief that Cunningham only applies to aggravated terms, because the opinion was limited to sentence-elevating factfinding within the judges province . . . . (Id.at p.__ [p.860], italics added.) He argues that the importance of Cunningham was its effect on the taking of liberty by the state, and a reduced sentence is not, by its nature, a taking of liberty.

Cunninghambrought the issue of an enhanced sentence under Californias Determinate Sentencing Law (DSL) to the United States Supreme Courts attention, but the holding of the Court was not limited to that: The question presented is whether the DSL, by placing sentence-elevating factfinding within the judges province, violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. We hold that it does. (Cunningham v. California, supra, 549 U.S. at __ [127 S.Ct. at 860].) In other words, the DSL violates the pertinent constitutional guarantees in that it grants factfinding power to the sentencing court and does not reserve all such power to the jury. It is this factfinding authority that violates the constitutional safeguards, rendering the DSL unconstitutional.[3]

It is irrelevant whether the Cunningham opinion mandates the middle term in all cases, or whether the low term may be imposed in appropriate circumstances. In Randolphs case, the sentencing court reasonably and appropriately determined the midterm was the fitting punishment, and on review, we are limited to deciding whether that decision fell within the wide boundaries of discretion held by the sentencing court.

Penal Code section 1170, subdivision (b) provides that, in the absence of any specialized factfinding by the sentencing court, the midterm must be imposed. Thus, even were we to assume, as advocated by Randolph, that Cunningham does not apply to the trial courts factfinding on mitigating facts, this judgment must still stand as the trial court imposed the midterm as mandated by the above statute. It is well established that a sentencing court has the power to disregard or minimize the weight of any mitigating factor and may do so without explanation.[4] (See People v. Salazar (1983) 144 Cal.App.3d 799, 813.)

The mitigating factor emphasized by the defense was that Randolph did not have a criminal record: He apparently had only a prior misdemeanor in his past. However, this fact was a feather against the weight of the present case: He beat the face of the mother of his child in the presence of their toddler into a bloody pulp, blackening both her eyes, breaking her nose and septum and putting her into an intense state of fear. This was followed by two years of Randolph violating the essential conditions of the very lenient probation opportunity granted him. These facts more than support the courts decision to accord the lack of a criminal record little weight. It cannot be said that such a determination was made in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice[,]. . . which is the definition of an abuse of discretion. (People v. Sanders (1995) 11 Cal.4th 475, 512.)

Randolphs allegation that the trial court could not have possibly considered the factor in mitigation is wholly unsubstantiated. The presumption is in favor of the court having performed its duty in considering all relevant circumstances. (See People v. Oberreuter (1988) 204 Cal.App.3d 884, 888.) And this trial court permitted the defense to argue twice before it ruled. Each time, the defense

repeated Randolphs lack of criminal record with great emphasis placed on the

fact that it was so unusual for such a gentleman to have reached the mature age of 35 without a criminal record. The defense also observed that the probation officer had detailed the lack of a criminal record in the probation report.[5]

The judgment is affirmed.

SILLS, P. J.

WE CONCUR:

BEDSWORTH, J.

MOORE, J.

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[1] Initially, Randolph received a grant of probation with conditions he not contact the victim, not use drugs and not violate any laws. He failed each of these conditions and his probation was revoked, resulting in the imposition and execution of the prison sentence.

[2] The circumstance in aggravation was later established as California Rules of Court, rule 4.421(a)(1): It was a violent crime with a high degree of cruelty, viciousness, or callousness.

[3] As Cunningham stated, [i]n sum, Californias DSL, and the rules governing its application, direct the sentencing court to start with the middle term, and to move from that term only when the court itself finds and places on the record factswhether related to the offense or the offenderbeyond the elements of the charged offense. (Cunningham v. California, supra, 549 U.S. at __ [127 S.Ct. at 862].)

[4] We need not address whether the aggravating factorof a crime of violence carrying a high degree of cruelty, viciousness and callousness (see fn. 2, ante)clearly outweighed this particular factor in mitigation as the record supports the sentencing courts decision irrespective of that determination.

[5] Randolph also argues that if he waived this issue by failing to sufficiently object, then his attorney rendered ineffective assistance of counsel. We need not address this alternative approach as the point was adequately argued and addressed below.