P. v. Sisco

Filed 6/30/06 P. v. Sisco CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Barbara R. Johnson, Judge. Affirmed.

Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Theresa A. Patterson and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Duan Sisco challenges his assault with a deadly weapon, first degree burglary, false imprisonment by violence, and grand theft convictions on the ground the trial court abused its discretion by denying him probation. We conclude the trial court did not abuse its discretion by sentencing appellant to prison.

BACKGROUND AND PROCEDURAL HISTORY

Appellant entered the apartment of his former lover, Julian Spence, without permission, and removed Spence's laptop computer, VCR, and other property. Spence returned home about 1:00 p.m., while appellant was still in the apartment. For several hours, Spence attempted to persuade appellant to return his property. Appellant tied Spence to a chair, stuffed a sock in his mouth, and cut his throat with a knife. Spence broke the chair apart and stood up. Appellant punched Spence in the nose, cut Spence's face with the knife, pushed him face down onto the bed, beat him, and held him down. At about 7:00 a.m., appellant left the apartment, and Spence went to a hospital. Appellant waived a jury trial. The trial court acquitted appellant of attempted murder, but convicted him of assault with a deadly weapon, first degree burglary, false imprisonment by violence, and grand theft. The court found appellant personally inflicted great bodily injury in the commission of the assault, but did not find appellant used a knife in the commission of the remaining crimes. Appellant was sentenced to six years in prison, consisting of the three-year midterm for assault with a deadly weapon and a three-year enhancement for the personal infliction of great bodily injury. The court stayed the term for grand theft under Penal Code section 654 and directed that the terms on all other counts run concurrently with the term for the assault conviction.

DISCUSSION

Appellant contends that the trial court abused its discretion by failing to grant appellant probation. He argues his case was unusual because he was in his late thirties, had no prior criminal record, was a peaceful person, suffered from AIDS, was in poor health, was attempting to help Spence overcome addiction, and inflicted only a superficial cut upon Spence's neck.

Spence testified at trial that appellant did not have a key to Spence's apartment and did not have permission to be there on the day in question. When Spence entered the apartment, appellant appeared to be surprised. Spence asked appellant what he was doing there, and appellant said he brought Spence a birthday cake. Spence's birthday, however, did not fall during that month. Spence noticed that his bedroom door, which he had left locked, was damaged. His laptop computer, VCR and other items were missing from the bedroom. Appellant had about eight knives in his pockets and acted as if he had taken methamphetamine. Over the next several hours, Spence talked to appellant to attempt to persuade him to return the missing property. Appellant refused, and expressed concern Spence would call the police. At one point, when appellant dropped one of the knives, Spence handed it back to him in a gesture of reassurance. Appellant then taped and tied Spence to a chair in his bedroom and placed a sock in his mouth. After Spence expelled the sock several times, appellant cut Spence's throat with one of the knives. Spence panicked, broke the arms from the chair, and stood up. Appellant punched Spence in the nose and cut his face with the knife. Appellant pushed Spence face down onto the bed, struck his back, and climbed on top of him. Spence begged appellant to call for help, but appellant refused, saying he would let Spence bleed to death.

When appellant threatened to kill himself, Spence attempted to comfort and calm him. Upon Spence's request, appellant got ice water to help Spence clean his wound, but he reiterated he was going to let him bleed to death. Eventually, appellant left the apartment, and Spence awakened his roommate's friend for assistance. The friend called 911, and Spence drove himself to the hospital.

The emergency room physician who treated Spence, Dr. Christopher Ng, testified the slash wound was across the midline of the neck, 10 centimeters long and penetrated to the subcutaneous level, which is 3 to 6 millimeters deep. Fat tissue, blood, and dried blood were visible. Because none of the underlying vital structures were damaged, the physician characterized the wound as superficial. He sutured the wound with subcutaneous dissolving sutures and closed the top with skin adhesive. Spence's vital signs indicated he had lost more than one unit of blood. In addition, Spence had a broken nose and scratches and contusions.

Appellant testified he had come to Spence's apartment at Spence's request. Spence had previously given appellant a key to the apartment. Inside the apartment, he found indications Spence had been smoking methamphetamine. Appellant took Spence's computer, pornographic videos, drugs, and glass pipe and stowed them in his car. His intent was to withhold these so that Spence would not use drugs during the weekend. Appellant explained his intent to Spence when he arrived.

Appellant testified that Spence was upset about the drugs. He was agitated and threatened to jump off the balcony, and appellant had to talk him out of it. Appellant suggested tying Spence because he did not trust him not to hurt himself. Eventually, Spence agreed. Appellant taped Spence to a chair using clear tape. Afterwards, Spence repeatedly asked appellant to retrieve his belongings from the car, and asked why appellant was torturing him. He also told appellant to kill him. Appellant pressed one of the knives scattered about the bedroom against Spence's throat to attempt to make him realize he did not want to die. Spence swung his neck against the knife. Spence then broke the chair. After they fell to the floor, appellant helped Spence get onto the bed. Appellant tried to persuade Spence to go to the hospital, but Spence thought it was unnecessary and too costly. Appellant cleaned Spence's wound. They ate, and later slept. The next morning, as appellant went out to retrieve Spence's property from the car, Spence's roommate saw the neck wound and called the police.

When announcing its verdict, the trial court stated it found appellant acted deliberately, but without an intent to kill, in cutting Spence's throat. The court also found that the injury constituted great bodily injury. It further found appellant entered Spence's apartment with the intent to steal the computer, with no intention of returning it. The court found Spence surprised appellant by returning home during the burglary, and appellant concocted his story about attempting to prevent Spence from using drugs. The court stated it believed Spence's testimony about the tying and found it was accomplished through menace, but not by the use of a knife. The court referred to testimony by both appellant and Spence that appellant dropped a knife and Spence handed it back to him.

After the trial court announced its verdict, the parties discussed sentencing. Defense counsel asked for probation, noting that appellant was ill and had no criminal record. The court replied, â€