P. v. Kumar

Filed 10/23/06 P. v. Kumar 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

(Sacramento)

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Defendant Sharbeen Kumar appeals following his conviction by jury of one count of solicitation for murder (Pen. Code, § 653f, subd. (b)) and one count of solicitation for robbery (Pen. Code, § 653f, subd. (a)). Sentenced to nine years in state prison (the upper term on count 1, with sentence on count 2 stayed), defendant contends he should have received the midterm rather than the upper term because he was a first offender. We shall affirm.

DISCUSSION

Defendant, a security guard for an armored transport company, conceived a plan to ambush a company truck after it picked up cash from a bank vault, to shoot the driver fatally, and to abscond with the cash. He then solicited two men to do the job and deliver him 25 percent of the proceeds.

After conviction and sentencing, defendant applied for appointed counsel on appeal, but the application was denied because defendant was not indigent. Defendant then wrote to this court, stating that his family had been unable to hire an appellate attorney and asking us to consider his claim of sentencing error. We filed defendant’s letter as an opening brief. The People filed a respondent’s brief describing the evidence in the case and setting out the trial court’s stated reasons for its sentencing choice.

Defendant does not cite authority holding that a first offender may not be sentenced to the upper term, and the law is to the contrary. In making its sentencing decision, the trial court may consider all circumstances in aggravation and mitigation. (Pen. Code, § 1170, subd. (b).) The lack of a prior record is merely a mitigating circumstance, which may or may not outweigh aggravating circumstances. (Ibid.; Cal. Rules of Court, rule 4.423(b)(1); rule references are to the California Rules of Court.]) Furthermore, as well as the statutory aggravating and mitigating factors, the court may consider any criteria reasonably related to the defendant and the crime committed. (People v. Brown (2000) 83 Cal.App.4th 1037, 1044-1045.) The court’s sentencing decision is within its broad discretion and must be affirmed unless arbitrary or irrational. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582; People v. Lamb (1988) 206 Cal.App.3d 397, 401.)

Here, the trial court stated its reasons for choosing the upper term on the record, as required. (Pen. Code, § 1170, subd. (c).)

The court found the following factors in aggravation: (1) The manner in which the crime was committed indicated planning, sophistication, and professionalism. (Rule 4.421(a)(8).) (2) Defendant took advantage of a position of trust or confidence to commit the offense, in that he used his inside knowledge as an employee of the company to perfect his plan. (Rule 4.421(a)(11).) (3) The intended victim, the guard who was to be shot, would have been particularly vulnerable, because he would have been fired upon (aiming at his head to avoid his bulletproof vest) in an isolated, poorly lit spot at a moment when he had no backup and could not defend himself with his own firearm. (Rule 4.421(a)(3).) (4) Defendant’s plan involved the taking of a great amount of money (over $1 million). (Rule 4.421(a)(9).)

In mitigation, the court found that defendant had no prior record (rule 4.423(b)(1)), that he had led a productive life, and that he had tried hard to provide for his family (cf. rule 4.423(a)(8)).

In conclusion, “[b]ased on all the foregoing,” the court found that “the factors in aggravation do outweigh the factors in mitigation.”

Defendant has not offered any argument supported by authority or record citation to show that the court abused its discretion in making this sentencing decision. Therefore we must uphold it. (People v. Avalos, supra, 47 Cal.App.4th at p. 1582; People v. Lamb, supra, 206 Cal.App.3d at p. 401.)

We note that it is not yet finally resolved whether the decision to sentence a defendant to the upper term must be made by a jury rather than by the trial court, because a petition for certiorari is pending before the United States Supreme Court in People v. Black (2005) 35 Cal.4th 1238 (sub nom. Black v. California, case No. 95-6793), in which the California Supreme Court held that this question need not go to the jury. However, so long as People v. Black, supra, 35 Cal.4th 1238, remains the law of California, we are required to follow it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

DISPOSITION

The judgment is affirmed.

SIMS , Acting P.J.

We concur:

HULL , J.

CANTIL-SAKAUYE , J.

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