PEOPLE v. ANGUIANO
Court of Appeals of California, Second District, Division Three.
Filed March 21, 2011.
Here, Arizmendi's contention that the trial court abused its discretion in sentencing him to the high term focuses on various comments the court made. First, Arizmendi suggests that the court "irrationally" thought that the jury erred in finding the gun-use allegations not true. Contrary to this suggestion, the court meticulously recited the evidence at trial, including evidence that Arizmendi had a gun and hit the victim. This evidence made the court wonder "what evidence was presented during the course of the trial to justify a finding that he did not have a firearm. I think he got a tremendous break." "What I'm saying is: the unimpeached evidence, uncontradicted evidence shows that he did have a firearm, yet that is not reflected in the findings of the jury. So what the motivation of it, I agree, is just speculative. But one thing that is clear is that he did receive a break there. He was the only witness who testified as to what occurred in the subgarage, and the jurors believed him to a point where they rendered a verdict on all of the counts in favor of the People." But when defense counsel said it wasn't proper for the court to consider evidence of a firearm in sentencing, the court said it was just reciting the facts, which showed that Arizmendi and Anguiano acted together. There was no "irrational" thought process on the part of the court.
Second, Arizmendi takes the trial court's statement that "were it not for things progressing the way they did as opposed to the alternative, this could very well be a homicide case, a murder case" and paints it as an "irrational" basis for the high term. The court, however, wasn't citing this as a reason for the high term. The court was making a simple observation, in the context of noting that Arizmendi was a "likable" person and that these decisions were "not easy," that this was a serious case that could have easily been a murder.
Arizmendi takes one final comment out of context and cites it as another example of the trial court's "irrationality" in choosing the high term. The court noted that Arizmendi was in juvenile court in 2004 for a robbery committed when he was 14, and "but for, not quite two years difference, it could very well be used as a strike in this case to double his sentence." This statement was made in the context of discussing Arizmendi's youth and defense counsel's argument that Arizmendi had potential, that he was still developing, and therefore, he shouldn't be given a lengthy prison sentence. The court thus responded with the challenged statement to show that Arizmendi had committed serious crimes at an even younger age, potentially exposing himself to harsh sentencing.
Rather than basing its sentencing decision on "irrational" matters, the trial court found these circumstances in aggravation: The crimes involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness; the victim was particularly vulnerable, given that he was in an isolated area at night; the manner in which the crime was carried out included planning, sophistication or professionalism in that the defendants entered the victim's garage with a getaway car; and each defendant engaged in violent conduct indicating a serious danger to society; defendants' prior convictions, as an adult or sustained petitions in juvenile delinquency proceedings, were numerous or of increasing seriousness. Notably, Arizmendi does not discuss these factors. Therefore, because we reject the notion that the court abused its discretion, we need not address Arizmendi's additional contention that the error denied him due process of law.
Arizmendi's final suggestion that his trial counsel was ineffective for failing to object to the imposition of the high term is meritless. His counsel asked for probation and argued for a low-or-midterm sentence, to which the court replied, "Are you seriously making that request?" In any event, the record shows that any additional objection to the high term would not have changed the outcome; hence, any omission was not prejudicial. (Strickland v. Washington (1984) 466 U.S. 668.)DISPOSITION
The judgment is affirmed.