No. C082526.

THE PEOPLE, Plaintiff and Respondent, v. DAVID SCOTT MILLIRON, Defendant and Appellant.

Court of Appeals of California, Third District, Butte.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115


Defendant David Scott Milliron pleaded no contest to assault by means likely to cause great bodily injury and was sentenced to the upper term. On appeal, he contends reversal is required because the trial court failed to consider two factors in mitigation and improperly used one factor in aggravation. We disagree and affirm.


The Incident

The victim was riding his bike when he heard a car horn behind him and someone yelling: "`Get out of the road!'" The victim turned and "`flipp[ed] off'" the car. The victim then saw a car passenger, defendant, run towards him. Defendant tried to hit him, but the victim pedaled away.

The victim, however, stopped his bike and started taking photos with his cell phone. Defendant again approached the victim and asked, "`Why did you flip off my girlfriend?'" Defendant grabbed the victim's phone, threw it to the ground, and stomped on it.

As the victim bent down to retrieve his phone, defendant punched him in the face. The victim then—determined to get the license plate number—pulled a pen from his pocket. As he did, another man, the codefendant, exited the car and punched the victim twice in the face.2 The victim fell to the ground, hitting his head on the asphalt (he was fortunately wearing a bike helmet). The victim ultimately suffered a blowout fracture of his left orbital floor.

Defendant and his codefendant ran back to the car. They were followed by a witness to the attack, who tried, unsuccessfully, to take the keys from the ignition. Defendant and the codefendant punched the witness in the face multiple times.

The probation report, prepared for sentencing, reflected that the witness saw the codefendant punch the victim twice in the face. It also reflected defendant told probation he had personally punched the victim one time.

Plea and Sentencing

Defendant pleaded no contest to assault by means likely to cause great bodily injury. (Pen. Code, § 245, subd. (a)(4).)

At sentencing, defense counsel argued in mitigation that his client had not hit the victim. The court responded that it had only what was in the probation report, but it offered to counsel, "[i]f you have a witness that says [defendant] didn't hit anybody, I'd sure like to hear it and have probation interview them." Counsel referred the court to the statement in mitigation, which stated a witness told law enforcement defendant did not punch the victim, and that synopsis had been left out of the probation report. The court responded: "All right. I've seen it, reviewed it again."

The trial court imposed the upper term of four years. It noted "the crime involved violence,"3 the witness was vulnerable, defendant had engaged in conduct indicating a serious danger to society, he had served a prior prison term, he was on parole when he committed the offense, and his performance on probation and parole had been unsatisfactory.


On appeal defendant contends reversal is required because, in imposing the upper term, the trial court failed to consider two factors in mitigation and improperly used a factor in aggravation. We disagree.

We review a trial court's decision to impose the upper term for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) An upper term may be based on "any aggravating circumstance" the court deems significant. (Id. at p. 848, citing Cal. Rules of Court, rule 4.408(a).) A court abuses its discretion if it relies on circumstances not relevant to the decision or that "constitute an improper basis for decision." (Sandoval, at p. 847.)

A challenge to the sentence must show the decision was irrational or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) Absent such a showing, "`the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.'" (Id. at pp. 977-978.)

Factors in Mitigation

Defendant first argues the trial court failed to consider two factors in mitigation: (1) he played a minor role in the crime in that neither the witness nor his codefendant saw him strike the victim, and (2) the victim provoked the incident by making an obscene gesture and escalated the confrontation by taking photos. We find no error.

That neither the witness nor the codefendant saw defendant punch the victim carries little weight when the victim saw defendant, and defendant himself told probation he had punched the victim. Similarly, the victim's provocation hardly pushes the needle in terms of mitigation when balanced against defendant's highly disproportionate conduct. As such, the trial court was well within its right to disregard these factors. (See People v. Lai (2006) 138 Cal.App.4th 1227, 1258, quoting People v. Salazar (1983) 144 Cal.App.3d 799, 813 [the "trial court may `minimize or even entirely disregard mitigating factors without stating its reasons'"].)

Factors in Aggravation

Defendant next argues the trial court inappropriately considered as a factor in aggravation that "the crime involved violence." Defendant reasons violence is present in every instance of assault by means likely to cause great bodily injury. We disagree.

The trial court may have been alluding to the serious nature of the offense when it noted "the crime involved violence." Indeed, the trial court in articulating reasons for denying probation referred to, "the nature, seriousness and circumstances of the crime as compared to other incidences of the same crime." But even if the use of this factor was inappropriate, the other factors in aggravation amply support the trial court's exercise of discretion. (See People v. Black (2007) 41 Cal.4th 799, 815 [the presence of a single aggravating circumstance permits a trial court to impose an upper term sentence].)

The trial court acted well within its discretion in imposing the upper term.


The judgment is affirmed.

BLEASE, Acting P. J. and HULL, J., concurs.


1. The parties stipulated to a factual basis in the probation report. The facts are derived from that report.
2. The codefendant is not a party to this appeal.
3. Before listing that factor, the trial court denied probation and noted in support, "the nature, seriousness and circumstances of the crime as compared to other incidences of the same crime."


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