Filed 9/25/00
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
B134542
(Super. Ct. No. BA157410)
v.
LINDA CATHERINE BROWN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. Andrew
Kauffman, Judge. Affirmed with modifications.
Schonbrun, Desimone, Seplow, Harris & Hoffman and Paul L. Hoffman for
Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney
General, Carol Wendelin Pollack, Senior Assistant Attorney General, John R. Gorey,
Supervising Deputy Attorney General, and Renee Rich, Deputy Attorney General, for
Plaintiff and Respondent.
*
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is
certified for publication with the exception of the indicated portions of part III.A, B, C.1
heading, C.2, and C.3.
I. INTRODUCTION
Defendant, Linda Catherine Brown, appeals from her conviction for attempted
voluntary manslaughter. (Pen. Code, 1 §§ 664, 192, subd. (a).) She was also found to
have personally used a firearm in the commission of the offense and inflicted great bodily
injury. (§§ 12022.5, subd. (a)(1), 12022.7, subd. (a).) Defendant argues that the trial
court improperly: admitted evidence of prior incidents; refused to instruct the jury with
defendant’s proposed pinpoint instruction; and sentenced her to the high term for the
firearm enhancement. Defendant also argues that the 10-year section 12022.5 subdivision
(a)(1) enhancement constitutes cruel and unusual punishment. Both defendant and the
Attorney General agree that the abstract of judgment should be corrected to reflect the
imposition and stay of a three-year enhancement pursuant to section 12022.7, subdivision
(a). In the published portions of this opinion we discuss several sentencing issues raised
by the parties. Other than the modification to the abstract, the judgment is affirmed.
II. FACTUAL BACKGROUND
We view the evidence in a light most favorable to the judgment. (Jackson v.
Virginia (1979) 443 U.S. 307, 319; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908909; People v. Osband (1996) 13 Cal.4th 622, 690.) Defendant, who was unmarried, and
Kevin Cummings, who was married, had an extra-marital affair between 1994 and 1997.
Throughout this time period, both were employed by the Santa Monica Police Department
as police officers. On October 1, 1997, Mr. Cummings felt he needed to talk to
defendant. He wanted to end their relationship. Mr. Cummings had gone to the sand
dunes at Manhattan Beach that evening to work out. When he left there, he received a
page indicating only a tone. He believed the page was from defendant. Mr. Cummings
had been receiving pages from defendant three or four times each day. However,
1
All further statutory references are to the Penal Code unless otherwise indicated.
2
Mr. Cummings had neither responded to the pages nor communicated with defendant for
approximately two weeks. Mr. Cummings drove towards Santa Monica where he planned
to use the credit union automated teller at the police station. He needed to withdraw $300
cash for his wife. However, while en route, Mr. Cummings realized that he did not have
his bank card. He exited the freeway in order to return home.
Thereafter, Mr. Cummings received another tone page, which he believed was
from defendant. Mr. Cummings decided to telephone defendant. He drove around until
he found a phone booth in what he believed was a safe neighborhood. In the meantime,
he received another page that listed a phone number of “10-20” and several other
numbers. Mr. Cummings tried to telephone defendant at her home without success. He
then paged her and indicated the number of the pay phone from which he was calling.
Thereafter he received another page with “10-20” followed by other numbers.
Mr. Cummings believed the 10-20 was the police code requesting “your location.” He
did not receive a call at the phone booth. Mr. Cummings then got back on the freeway to
go home. While on the freeway, he observed defendant drive up behind him. Defendant
signaled Mr. Cummings to follow her. Thereafter, Mr. Cummings followed defendant to
her home.
Once inside defendant’s home, Mr. Cummings told defendant that he intended to
end their relationship. Defendant attempted to change Mr. Cummings’s mind. When she
was unable to do so, she became angry. When Mr. Cummings tried to leave, defendant
put her arms around him, told him she loved him and said, “Don’t do this.”
Mr. Cummings turned to leave. Defendant ran to a coffee table, reached inside, and
pulled out a rolled up towel. Defendant stood up with the towel in her hand.
Mr. Cummings turned to see what was happening. Mr. Cummings heard two loud pops
and saw two flashes of light and smoke. Mr. Cummings felt his physical state slow down
but did not realize he had been shot. He heard another pop and saw a flash and smoke.
He felt a burning sensation above his right hip. When Mr. Cummings realized he had
been shot, he moved toward defendant. He yelled at defendant and attempted to grab the
3
gun from her. Both defendant and Mr. Cummings fell over the coffee table. As
Mr. Cummings tried to get the gun away from defendant it fired. The bullet struck
Mr. Cummings in the right thigh. Mr. Cummings took the gun and ran out of the house to
his car. Defendant stood between the open car door and Mr. Cummings. Defendant told
him to stay. She said she would get help. Mr. Cummings backed his car up and closed
his door. He then drove himself to the hospital. While en route to the hospital,
Mr. Cummings threw the gun out of his car window onto a center median.
Mr. Cummings underwent surgery for two bullet wounds to his chest, one to his midabdomen, and one to his leg.
On October 1 and 2, 1997, Mr. Cummings was interviewed by officers from the
Inglewood and Manhattan Beach police departments. Mr. Cummings gave them varied
accounts regarding where and by whom he had been shot. On October 3, 1997,
Mr. Cummings told Inglewood Police Detective Craig Lawler that defendant had shot
him at her home. On October 3, 1997, Los Angeles County Sheriff’s Detectives Kenneth
Gallatin and Ronnie Lancaster and Lieutenant Ray Peavy interviewed defendant at the
Santa Monica Police Department. The detectives advised defendant that they were there
to investigate the shooting of Mr. Cummings. Defendant was advised of her
constitutional rights. Defendant asked what time Mr. Cummings was shot. Detective
Gallatin told her that her name was mentioned as the individual responsible for the
shooting. She responded, “‘No, I am not.’” Defendant told the detectives that she had
been with her friend, Bob Barton, on the night of the shooting. She and Mr. Barton had
gone to a gym to work out. They returned to his home for an hour and a half. She then
returned to her home alone.
On October 4, 1997, Detective Gallatin recovered a loaded .22 semiautomatic
handgun containing a clip from the center divider on La Cienega Boulevard, where
Mr. Cummings had thrown it. The gun had a live round of ammunition in the chamber.
In the early morning hours of October 2, 1997, Inglewood Police Officer Lawrence
Kirkley went to Daniel Freeman Hospital to speak to Mr. Cummings. However,
4
Mr. Cummings was in surgery. Officer Kirkley looked at Mr. Cummings’s pager. The
number displayed was “102074952.” The time displayed was 8:59. It was subsequently
determined that the number of a pay telephone located at a 7-Eleven store near
Mr. Barton’s home was “310 207-4952.” Defendant presented defenses of perfect and
imperfect self-defense as well as heat of passion. Both defendant and Mr. Cummings
were impeached by lies they told to detectives at various stages of the investigation of the
shooting.
III. DISCUSSION
[The following portions of parts III.A, III.B, and the heading for III.C.1, are
deleted from publication. See, post, at p. 12 where publication is to resume.]
A. Evidence of Prior Incidents
Defendant argues that the trial court improperly admitted evidence of prior
incidents of violence that occurred between defendant and Mr. Cummings.
1. Factual and procedural background
Prior to trial, defendant brought an in limine motion to prevent the introduction of
evidence of various incidents that occurred during 1996. The prosecutor agreed that he
would not introduce such evidence during his case in chief. However, the trial court left
open the possibility that the issue could be renewed if the evidence became relevant on
rebuttal. During the prosecutor’s opening statement, defense counsel objected to the
prosecutor’s reference to a relationship between defendant and Mr. Cummings and events
occurring in March 1996. In proceedings outside the presence of the jury, the trial court
inquired about what matters the prosecutor intended to discuss in his opening statement.
The trial court then ruled that the prosecutor could discuss only those events that occurred
on the night Mr. Cummings was shot.
5
Defendant testified that after March 1996, she no longer had a relationship with
Mr. Cummings. She stated they were friends and she was not jealous of any other women
in Mr. Cummings’s life. Defendant also testified that on October 1, 1997, Mr. Cummings
had come to her home uninvited; argued with her; and physically assaulted her. She also
testified that she shot Mr. Cummings in self defense. Thereafter, the issue of the
admissibility of evidence of prior incidents was renewed. The trial court stated: “. . . The
only evidence of self-defense comes from Miss Brown. The only evidence that shooting
was not done in self-defense comes from Mr. Cummings. Accordingly, the credibility of
Miss Brown and Mr. Cummings are -- is the primary issue the jury will have to resolve.”
Thereafter, the trial court indicated that evidence of whether there was a relationship
between defendant and Mr. Cummings on October 1, 1997, was relevant and admissible
for purposes of impeachment. The court noted that Mr. Cummings had testified that his
reason for wishing to meet defendant on October 1, 1977, was to terminate their
relationship. The trial court also noted that defendant had stated that she did not know
Mr. Cummings’s home address until June of 1996. As a result, the trial court determined
that the prosecutor could question defendant regarding the fact that she gave a private
investigator Mr. Cummings’s home address in July 1995. The trial court also indicated
that the prosecutor could question defendant regarding her prior testimony concerning a
trip to Las Vegas in the Fall of 1996, where she met Mr. Cummings.
During the course of further cross-examination of defendant, the trial court
considered whether the prosecutor could inquire about various phone records of both
defendant and Mr. Cummings. Defendant was questioned regarding the phone records
outside the presence of the jury. She indicated that she had removed Mr. Cummings’s
phone records from his backpack. She also admitted that she made approximately 25
calls during the summer and fall of 1996 to phone numbers found in those records to
determine if they belonged to males or females. Defendant also admitted that during the
summer of 1996, she illegally used the Department of Motor Vehicles computers to
determine the identity of the holders of various license plate numbers written on papers in
6
the backpack. The trial court determined: “[W]ith respect to the phone records of
Mr. Cummings, which are Exhibit 28, the court is of the view that questioning of
Miss Brown is highly relevant as to her credibility. And she has now testified to the jury
that she has -- essentially say solely a business relationship with Mr. Cummings and that
she had no particular feelings and certainly no feeling of jealousy. [¶] This relates, is
directly contradictory to that and relates directly to the issue of her credibility.”
2. Admission of the evidence
Defendant argues that the trial court committed prejudicial error by allowing the
admission of this “inflammatory, prejudicial testimony.” Defendant further argues that in
exercising its discretion to allow this testimony, the trial court did not affirmatively reflect
that it balanced the probative value of the evidence sought to be introduced against the
prejudicial effects of such testimony.
Evidence Code section 352 provides: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.” The California
Supreme Court has repeatedly held: “Rulings under Evidence Code section 352 come
within the trial court’s discretion and will not be overturned absent an abuse of that
discretion. [Citations.]” (People v. Minifie (1996) 13 Cal.4th 1055, 1070; People v.
Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; People v. Cudjo (1993) 6 Cal.4th 585, 609;
People v. Hall (1986) 41 Cal.3d 826, 834.) In this case, the trial court initially determined
that the evidence was inadmissible. However, the trial court left open the possibility that
the admissibility of the evidence could be reevaluated for impeachment purposes when
defendant testified. During the cross-examination of defendant, the motion was
reevaluated on more than one occasion. In each instance, the trial court carefully
reviewed each of the contested issues outside the presence of the jury. The trial court
specifically found that each was relevant and material to defendant’s credibility. No
7
abuse of discretion occurred. Furthermore, the California Supreme Court has determined
that a trial judge need not expressly weigh prejudice and probative value on the record.
(People v. Clair (1992) 2 Cal.4th 629, 660; People v. Mickey (1991) 54 Cal.3d 612, 656.)
In any event, even if it was error to admit the evidence in question, any such error
was harmless. Evidence Code section 353 states: “A verdict or finding shall not be set
aside . . . by reason of the erroneous admission of evidence unless: [¶] . . . [¶] (b) The
court which passes upon the effect of the error or errors is of the opinion that the admitted
evidence should have been excluded on the ground stated and that the error or errors
complained of resulted in a miscarriage of justice.” The evidence of defendant’s guilt
was significant: defendant drew a gun; aimed the gun at Mr. Cummings; shot him twice
in the chest and once in the side before he was able to struggle with her and force the gun
out of her hand; lied to investigating officers about her involvement in the shooting; and
destroyed evidence at her home. The evidence incurring the nature and extent of
defendant’s relationship with Mr. Cummings albeit relevant, was unlikely to inflame the
jury. Further, defendant’s conduct after the shooting in taking no steps to report as a
peace officer, what she claimed in court was a criminal attack upon her, is strong
evidence of an unlawful conduct on her part, strongly undermining her believability.
Therefore, it is not reasonably probable that defendant would have received a better result
if the challenged evidence had been excluded. (People v. Ayala (2000) 23 Cal.4th 225,
271; People v. Sakarias (2000) 22 Cal.4th 596, 630.)
B. Proposed Pinpoint Instruction
Defendant argues that the trial court improperly refused to instruct the jury with
her proposed pinpoint instruction regarding the prosecution’s burden of showing absence
of self-defense.
8
1. Procedural history
The record reflects that the trial court reported a discussion regarding jury
instructions had taken place in chambers. The trial court advised the parties that it would
instruct the jury on attempted murder as well as the lesser and necessarily included
offense of attempted voluntary manslaughter based on sudden quarrel or heat of passion.
In addition, defense counsel indicated that defendant would agree to an instruction on the
law of imperfect self-defense. Defense counsel submitted a modified version of CALJIC
No. 5.15. Defense counsel indicated that the instruction would focus on the issue of
burden of proof regarding self-defense. The proposed modified instruction read: “The
burden is on the prosecution to prove beyond a reasonable doubt that Linda C. Brown did
not act in self-defense. You must be satisfied beyond a reasonable doubt that she was not
acting in self-defense before you may convict her. If from all the circumstances of the
case you have a reasonable doubt whether Linda C. Brown was acting in self-defense,
you must give her the benefit of the doubt and find her not guilty.” However, the trial
court pointed out that the proposed instruction did not relate to the imperfect self-defense
theory. Defense counsel acknowledged that inadequacy. Thereafter, defense counsel
agreed that the trial court’s proposed modification to CALJIC No. 5.15 would be more
appropriate.2
2. Waiver
Preliminarily, we agree with the Attorney General that defendant’s acquiescence to
the trial court’s proposed modification of CALJIC No. 5.15 resulted in a waiver of the
issue on appeal. (People v. Guiuan (1998) 18 Cal.4th 558, 570; People v. Beeler (1995) 9
Cal.4th 953, 982-983; People v. Rodrigues, supra, 8 Cal.4th at p. 1189; People v. Bonin
CALJIC No. 5.15 was given as follows: “Upon a trial of a charge of attempted
murder, an attempt to kill is lawful if it was justifiable. [¶] The burden is on the
prosecution to prove beyond a reasonable doubt that the attempted homicide was
unlawful, that is, not justifiable.”
2
9
(1989) 47 Cal.3d 808, 856 [a trial court is under no obligation to amplify or explain an
instruction absent a request]; People v. Daya (1994) 29 Cal.App.4th 697, 714 [“[A]
defendant is not entitled to remain mute at trial and scream foul on appeal for the court’s
failure to expand, modify, and refine standardized jury instructions”].)
3. Pinpoint instruction
Notwithstanding that waiver, we find other properly given instructions adequately
addressed the prosecutor’s burden. A trial court is obliged to instruct, even without a
request, on the general principles of law which relate to the issues presented by the
evidence. (§§ 1093, subd. (f), 1127; People v. Ervin (2000) 22 Cal.4th 48, 90; People v.
Wims (1995) 10 Cal.4th 293, 303; People v. Turner (1990) 50 Cal.3d 668, 690; People v.
Grant (1988) 45 Cal.3d 829, 847; People v. Melton (1988) 44 Cal.3d 713, 746; People v.
Flannel (1979) 25 Cal.3d 668, 680-681.) The California Supreme Court has determined
that a defendant has a right to instructions that pinpoint the theory of the defense. (People
v. Noguera (1992) 4 Cal.4th 599, 648; People v. Sears (1970) 2 Cal.3d 180, 189-190.)
However, the California Supreme Court has also held that a trial court need not give
instructions which are adequately addressed by other properly given instructions. (People
v. Noguera, supra, 4 Cal.4th at p. 648 [trial court properly refused to give pinpoint
instruction where other instructions given adequately covered the defense]; People v.
Wright (1988) 45 Cal.3d 1126, 1134-1138; People v. Whitehorn (1963) 60 Cal.2d 256,
265; People v. Tapia (1994) 25 Cal.App.4th 984, 1028.)
We review the instructions as a whole to determine whether the jury was properly
instructed. (People v. Smithey (1999) 20 Cal.4th 936, 987; People v. Roybal (1998) 19
Cal.4th 481, 525-526; People v. Mendoza (1998) 18 Cal.4th 1114, 1134-1135; People v.
Frye (1998) 18 Cal.4th 894, 957; People v. Musselwhite (1998) 17 Cal.4th 1216, 1248,
People v. Castillo (1997) 16 Cal.4th 1009, 1016.) The trial court instructed the jury with
CALJIC No. 15.12, which defined justifiable self-defense. CALJIC No. 15.15 instructed
the jury that the prosecution had the burden of proving beyond a reasonable doubt that the
10
attempted murder was not justifiable. In addition, the jury was instructed regarding:
reasonable doubt (CALJIC No. 2.90); defense of property (CALJIC No. 5.40); selfdefense against assault (CALJIC No. 5.30); self-defense--assailed person need not retreat
(CALJIC No. 5.50); self-defense--actual danger not necessary (CALJIC No. 5.51);
attempted voluntary manslaughter (CALJIC No. 8.40); and actual but unreasonable belief
in necessity to defend (CALJIC No. 5.17). The instructions given adequately informed
the jury that the prosecutor had the burden to prove defendant did not act in self-defense.
The instruction that defendant suggests should have been given was adequately addressed
by and is duplicative of the other instructions given by the trial court. No error occurred.
In addition, it is not reasonably probable that a judgment more favorable to
defendant would have resulted had the instruction been given. (People v. Breverman
(1998) 19 Cal.4th 142, 165; People v. Wims, supra, 10 Cal.4th at pp. 314-315.) The
evidence established that defendant: shot Mr. Cummings twice in the chest and once in
the abdomen from at least 42 inches away; destroyed evidence of the shooting; and lied to
police investigators about the shooting. Any error in failing to give the instruction was
harmless under any standard of reversible error. (Chapman v. California (1967) 386 U.S.
18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.)
C. Sentencing
1. Firearm enhancement
[The following portions of the opinion are to be published.]
Defendant argues that the trial court’s imposition of the high term of 10 years for
the section 12022.5, subdivision (a)(1), firearm enhancement was arbitrary and
inconsistent with the verdict and the evidence. She further contends it was error to
impose the 18-month low term for attempted voluntary manslaughter yet require her to
serve the 10-year term for firearm use. We disagree.
11
Preliminarily, defendant failed to object to the reasons for the sentencing choice at
trial, thereby waiving at specific issue on appeal. The failure to state reasons or the use of
improper circumstances for a sentencing decision is not a jurisdictional error. (People v.
Scott (1994) 9 Cal.4th 331, 355 [defendant’s claim that reasons used for sentencing were
“inapplicable, duplicative, and improperly weighed” was waived]; People v. de Soto
(1997) 54 Cal.App.4th 1, 7-8 [improper dual use of facts underlying weapons use to
impose the upper term waived by failure to impose a more specific objection at
sentencing]; People v. Kelley (1997) 52 Cal.App.4th 568, 581-582 [failure to consider
mitigating factors]; People v. Middleton (1997) 52 Cal.App.4th 19, 36 [defendant cannot
object to enhancement for first time on appeal]; People v. Minder (1996) 46 Cal.App.4th
1784, 1791-1792 [failure to comply with requirement in rule 433(b) of the Cal. Rules of
Court to state reasons for imposing upper term when imposition of sentence is
suspended]; People v. Erdelen (1996) 46 Cal.App.4th 86, 91 [improper dual use of facts
to impose upper term waived]; People v. Zuniga (1996) 46 Cal.App.4th 81, 83-84 [failure
to state any reason for sentence choices]; People v. Dancer (1996) 45 Cal.App.4th 1677,
1693, overruled on other grounds in People v. Hammon (1997) 15 Cal.4th 1117, 1123
[improper use of particularly vulnerable aggravating factor to impose upper term]; People
v. Douglas (1995) 36 Cal.App.4th 1681, 1691 [finding application of waiver rule to
improper use of enhancement to impose upper term and reaching the merits of the issue];
People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1310-1312 [failing to state reasons for
upper term]; People v. Neal (1993) 19 Cal.App.4th 1114, 1117-1124 [failing to state
reasons for consecutive sentences].) As a result, no jurisdictional error occurred and any
dispute with the reasons selected for imposing the upper term of 10 years pursuant to
section 12022.5, subdivision (a)(1), has been waived.
Notwithstanding that waiver in terms of the specific reasons for the sentence
choice, we agree with the Attorney General that no error occurred. At the time sentence
was imposed, the trial court reviewed the probation report, sentencing memoranda, and
letters presented by defense counsel on defendant’s behalf. Defense counsel requested
12
that the trial court consider the case to be unusual and grant probation. Defense counsel
further argued: defendant should not be punished for acting in self-defense and using bad
judgment; the gun was not really an aggravating factor; defendant had an upstanding life;
defendant was a good police officer; and Mr. Cummings also lied about what occurred.
The prosecutor argued that during the trial evidence became available in the form of
medical records that served to refute the fact that defendant had been injured during the
struggle with Mr. Cummings. He further argued that defendant’s crime was more serious
than other attempted voluntary manslaughters due to the use of the gun. Finally, he
argued that although defendant’s character before the crime occurred was exemplary, her
behavior after the shooting reflected that she: committed misdemeanors while employed;
had an obsession with Mr. Cummings; did not demonstrate remorse; and she engaged in
course of “denial” and “coverup” during the trial.
In imposing sentence, the trial court indicated that it would base its sentencing
decision on the evidence presented during the trial. The trial court noted, “You [defense
counsel] indicated as well that what we’re dealing with in this case is momentary lapse of
judgment on the part of [defendant], but the crime of voluntary manslaughter involved a
momentary lapse of judgment.” The trial court continued that the case was unusual
because the defendant was a police officer. The court noted: “We certainly do not expect
a police officer to shoot a fellow police officer multiple times during what I think could
most charitably be described as a lover’s quarrel. We don’t expect that very same police
officer to destroy the evidence, and then to go about her business as if nothing has
happened. [¶] This is not a case . . . where we’re dealing with a police officer who, in the
performance of her duties, makes an error of judgment, used -- perhaps used excessive
force in apprehending a suspect. . . . [¶] . . . [¶] This is a situation where a police
officer, who should know better, chose to use deadly force to solve a personal problem
and during the course of that use of deadly force inflicted some very severe injuries.”
Thereafter, the trial court found this was not an unusual case in the statutory sense. The
trial court denied probation. The trial court sentenced defendant to one and one-half
13
years for the attempted voluntary manslaughter, noting defendant’s lack of prior
significant criminal history. In imposing the 10-year enhancement pursuant to section
12022.5, subdivision (a)(1), the trial court chose the high term noting defendant “used this
firearm repeatedly and inflict[ed] great bodily injury.” The trial court then imposed and
stayed a three-year term for the great bodily injury enhancement pursuant to section
12022.7, subdivision (a).
California courts have long held that a single factor in aggravation is sufficient to
justify a sentencing choice, including the selection of an upper term for an enhancement.
(People v. Osband (1996) 13 Cal.4th 622, 730; People v. Cruz (1995) 38 Cal.App.4th
427, 433; People v. Williams (1991) 228 Cal.App.3d 146, 152-153; People v. Dreas
(1984) 153 Cal.App.3d 623, 636-637; People v. Castellano (1983) 140 Cal.App.3d 608,
615.) The California Supreme Court has determined: “[T]he Legislature contemplated
the use of factors relating both to the crime and the defendant in imposing the upper or
lower term. The fact that [People v.] Cheatham [(1979) 23 Cal.3d 829, 834-837] and
[People v.] Wright [(1982) 30 Cal.3d 705, 709-714] were concerned with substantive
offenses rather than enhancements does not alter their analysis of the legislative intent
underlying section 1170, which govern sentencing both with respect to substantive
offenses and enhancements.” (People v. Hall (1994) 8 Cal.4th 950, 961, original italics;
see People v. Rayford (1994) 9 Cal.4th 1, 9-10.) In addition, aggravating factors may
include other circumstances that are reasonably related to the sentencing determination.
California Rules of Court, rule 408, subdivision (a), provides: “The enumeration in these
rules of some criteria for the making of discretionary sentencing decisions does not
prohibit the application of additional criteria reasonably related to the decision being
made. Any such additional criteria shall be stated on the record by the sentencing judge.”
(See also People v. Valenzuela (1995) 40 Cal.App.4th 358, 363; People v. Bradford
(1995) 38 Cal.App.4th 1733, 1738-1739; People v. Guevara (1979) 88 Cal.App.3d 86, 93
[“Moreover, the ‘circumstances’ the sentencing judge may look to in aggravation or in
mitigation of the crime include ‘attendant facts,’ ‘the surroundings at the commission of
14
an act.’ [Citation.] ‘Circumstances’ include ‘practically everything which has a
legitimate bearing’ on the matter in issue. [Citations.]”].) The trial court here made
reference to the fact that defendant was a police officer who decided to use deadly force
to solve a personal problem and caused serious injury thereafter destroying evidence.
Such is particularly an aggravating factor--a peace officer’s sworn duty is to protect the
guilty and the innocent--not to unlawfully shoot an unarmed estranged lover. Further, the
trial court noted she used the handgun repeatedly--she shot Mr. Cummings four times-and inflicted great bodily injury on him.3 The trial court did not abuse its discretion in
sentencing defendant to the upper term for the firearm use enhancement.
[The following paragraph is deleted from publication.]
Moreover, even if the trial court’s stated reasons were improper, the California
Supreme Court has held: “When a trial court has given both proper and improper reasons
for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably
probable that the trial court would have chosen a lesser sentence had it known that some
of its reasons were improper. (People v. Price (1991) 1 Cal.4th 324, 492; People v.
Avalos (1984) 37 Cal.3d 216, 233; People v. Edwards (1993) 13 Cal.App.4th 75, 80,
overruled on another point in People v. Hall, supra, 8 Cal.4th at p. 964, fn. 9.) Based
upon the record, it is not reasonably probable the trial court would have chosen a lesser
sentence had it known some of its reasons for imposing the upper term for the
enhancement may be viewed as improper.
We disagree with defendant’s assertion in the opening brief that the only reasons
given for the imposition of the upper term were the repeated use of the handgun and the
serious bodily injury sustained by Mr. Cummings. The trial court began its statement of
reasons, none of which was the subject of any objection, by stating it was basing its
sentencing decision on the evidence presented in this case. The trial court then discussed
the incongruency of a peace officer acting as defendant did in this case. Later, the court
added the factors of repeated handgun use and great bodily injury in its recitation of
sentencing reasons for the imposition of the upper term on the section 12022.5,
subdivision (a) enhancement.
3
15
[The following indicated two paragraphs are to be published.]
Further, defendant argues that it was inappropriate for the trial court to impose the
18-month low term for attempted voluntary manslaughter but then require her to serve the
aggravated 10-year sentence for firearm use. Defendant argues: “In this case, the trial
court had already determined that the mitigating factors outweighed the aggravating
factors. This balance could not magically swing to the other end of the spectrum in the
context of a firearm enhancement. When weighing the ‘entire record’ the mitigating
factors clearly outweighed the aggravating factors for all purposes and [a]ppellant should
have received the three-year low-end enhancement.” This contention has no merit. The
statutory basis for the selection of punishment for offenses or enhancements which
contain three potential terms is section 1170, subdivision (b) which states in pertinent
part: “When a judgment of imprisonment is to be imposed and the statute specifies three
possible terms, the court shall order imposition of the middle term, unless there are
circumstances in aggravation or mitigation of the crime. . . . In determining whether there
are circumstances that justify imposition of the upper or lower term, the court may
consider the record in the case, the probation officer’s report, other reports including
reports received pursuant to Section 1203.03 and statements in aggravation or mitigation
submitted by the prosecution, the defendant, or the victim, or the family of the victim if
the victim is deceased, and any further evidence introduced at the sentencing hearing.
The court shall set forth on the record the facts and reasons for imposing the upper or
lower term. The court may not impose an upper term by using the fact of any
enhancement upon which sentence is imposed under any provision of law.” (See People
v. Hall, supra, 8 Cal.4th at pp. 960-961 [enhancements]; People v. Cheatham, supra, 23
Cal.3d at p. 836 [principal offenses].) California Rules of Court,4 rule 428(b) states:
4
All further references to rules are to the California Rules of Court unless otherwise
indicated.
16
“When the defendant is subject to an enhancement that was charged and found true for
which three possible terms are specified by statute, the middle term shall be imposed
unless there are circumstances in aggravation or mitigation or unless, under statutory
discretion, the judge strikes the additional term for the enhancement. [¶] The upper term
may be imposed for an enhancement based on any of the circumstances in aggravation
enumerated in these rules or, under rule 408, any other reasonable circumstances in
aggravation that are present. The lower term may be imposed based upon any of the
circumstances in mitigation enumerated in these rules or, under rule 408, any other
reasonable circumstances in mitigation that are present.” Rule 408(a) makes it clear
additional relevant criteria may be utilized beyond that set forth in the California Rules of
Court in making a discretionary sentencing decision. Further, in determining whether to
impose an aggravated sentence, rule 421(a) allows the trial court to rely upon facts
relating to the crime. Rule 421(b) permits the court to rely on facts relating to the
accused. Nothing in the express language of section 1170, subdivision (b) nor rule 428(b)
requires that if the low term is imposed for the principal offense, the aggravated sentence
may not be imposed in connection with an enhancement. Insofar as defendant argues as a
matter of statutory or rule-promulgated law that the sentence for a principal offense and
accompanying enhancement must always be of the same level, upper, middle, or lower,
her contention has no merit.
Likewise, there is no merit to defendant’s argument that an abuse of discretion
occurred in this case when the trial court imposed the 18-month low term for attempted
voluntary manslaughter while requiring her to serve the full 10-year firearm-use sentence.
In determining that a low term for attempted voluntary manslaughter was appropriate, the
trial court focused on the absence of the significant prior record on defendant’s part as
well as the violation of her duties as a police officer. The trial court reasonably could
have concluded that her misconduct in connection with the commission of principal
offense, occurring during the heat of passion or unreasonably in response to a perceived
threat by Mr. Cummings, was a less serious form of attempted voluntary manslaughter
17
particularly given her absence of any prior felony convictions and her previous
commission of only a single misdemeanor offense as a youth. Without abusing
discretion, the trial court could legitimately conclude that the low term was in order.
However, the trial court could also intelligently conclude that the misuse of the handgun
in this case was aggravated by: the fact defendant fired four times; she inflicted great
bodily injury on an unarmed victim; and she profoundly abused her sworn duties as a
peace officer by acting as she did while using a handgun and destroying evidence. The
trial court could have determined that there was nothing mitigating about the repeated use
of a handgun to shoot an unarmed victim under these circumstances. The trial court ruled
on facts pertinent to both the firearm use and defendant in making its decision something
explicitly approved by rules 408, 421, and 428. No abuse of discretion occurred.
[Parts III.(C).(2)-(3) are deleted from publication.
See, post, at page 22 where publication is to resume.]
2. Punishment
Defendant argues that her sentence for the firearm-use enhancement is so grossly
disproportionate as to violate the United States and California Constitutions. (U.S.
Const., 8th Amend.; Cal. Const., art. I, § 17.) The California Constitution, article I,
section 17, prohibits the imposition of cruel and unusual punishment. However, in order
to constitute cruel or unusual punishment, the California Supreme Court has determined
that a sentence must be “so disproportionate to the crime for which it is inflicted that it
shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch
(1972) 8 Cal.3d 410, 424, fn. omitted; People v. Frierson (1979) 25 Cal.3d 142, 183.)
The California Supreme Court found that in administering that rule, reviewing courts
should: look to the nature of the offense and the offender; compare the punishment with
the penalty for more serious crimes in the same jurisdiction; and compare the punishment
to the penalty for the same offense in different jurisdictions. (In re Lynch, supra, 8
18
Cal.3d at pp. 425-427.) The California Supreme Court has also emphasized that the
defendant must overcome a considerable burden in challenging a penalty as cruel and
unusual. (People v. Wingo (1975) 14 Cal.3d 169, 174.)
In this instance, the trial court carefully reviewed both the nature of the offense
and that of the offender. The trial court repeatedly noted that defendant’s status as a
police officer made the offense more deplorable. The trial court noted: “These are
people who have received a certain degree of professional training. We’re talking about
people who are -- we would expect able to handle stressful, threatening situations as they
arise. They are people who are authorized by us to use deadly force in appropriate
circumstances. But we assume that these people will use reason and good judgment in
deciding whether to use this type of force, that we use it sparingly, only when absolutely
necessary.” The trial court stated that this was not a lapse in judgment on defendant’s
part because society does not expect one police officer to repeatedly shoot another or to
destroy evidence. As noted above, the trial court also observed that defendant used
deadly force to deal with a personal problem. Defendant fired the gun from close range
four times and inflicted serious injury on a fellow police officer. Defendant was a veteran
police officer. She failed to report the shooting and destroyed evidence. The
circumstances are minimized only by the fact that the jury’s verdict demonstrated that the
jurors believed defendant acted either in the heat of passion or on an unreasonable belief
in the necessity to defend herself. We find the nature of the offense and the offender
supports imposition of the 10-year enhancement. (See People v. Ingram (1995) 40
Cal.App.4th 1397, 1415-1416, overruled on another point in People v. Dotson (1997) 16
Cal.4th 547, 560, fn. 8 [“Fundamental notions of human dignity are not offended by the
prospect of exiling from society those individuals who have proved themselves to be
threats to the public safety and security”].)
Nor do we find the sentence violated defendant’s Eighth Amendment rights. In
Harmelin v. Michigan (1991) 501 U.S. 957, 997, the United States Supreme Court found
that the Eighth Amendment encompassed “a narrow proportionality principle.” The
19
Harmelin Court explained: “[T]he Eighth Amendment does not require strict
proportionality between crime and sentence. Rather, it forbids only extreme sentences
that are ‘grossly disproportionate’ to the crime.” (Harmelin v. Michigan, supra, 501 U.S.
at p. 1001 [a life sentence without possibility of parole for a defendant who possessed 672
grams of cocaine was upheld against an Eighth Amendment challenge] see also Rummel
v. Estelle (1980) 445 U.S. 263, 284-285 [life imprisonment for third felony conviction for
fraudulent use of a credit card, passing a forged check, and obtaining money by false
pretenses did not constitute cruel and unusual punishment]; Spencer v. Texas (1967) 385
U.S. 554, 559-560; People v. Dennis (1998) 17 Cal.4th 468, 511-512.) Defendant’s
11-1/2 year sentence for attempted voluntary manslaughter and personal use of a handgun
is not “grossly disproportionate” to her crime and the serious threat she poses to the
public.
3. Correction of abstract of judgment
Following our request for further briefing, the Attorney General argues and
defendant agrees that the abstract of judgment should be corrected to accurately reflect
the sentence imposed by the trial court. An abstract of judgment may be corrected to
reflect the intent of the trial court. (§ 1207; see also In re Daoud (1976) 16 Cal.3d 879,
882, fn. 1 [trial court could properly correct a clerical error in a minute order nunc pro
tunc to conform to the oral order of that date if there was a discrepancy between the two];
In re Candelario (1970) 3 Cal.3d 702, 705 [“The distinction between clerical error and
judicial error is ‘whether the error was made in rendering the judgment, or in recording
the judgment rendered’”]; People v. Trotter (1992) 7 Cal.App.4th 363, 370 [abstract of
judgment may be corrected where the revision affects only the jury’s recordation of its
verdict, not the actual verdict rendered]; see also People v. Williams (1980) 103
Cal.App.3d 507, 517[“‘[A] discrepancy between the judgment as orally pronounced and
as entered in the minutes is presumably the result of clerical error’”].)
20
At the time of sentencing, the trial court imposed and stayed a three-year
enhancement pursuant to section 12022.7, subdivision (a). However, the abstract of
judgment does not reflect the trial court’s sentence on the great bodily injury
enhancement. The abstract of judgment is modified to reflect that a three-year term
pursuant to section 12022.7, subdivision (a), was imposed and stayed. The clerk of the
superior court is directed to forward a copy of the amended abstract of judgment to the
California Department of Corrections.
21
[The balance of the opinion is to be published.]
IV. DISPOSITION
The clerk of the superior court is directed to modify the abstract of judgment to
reflect the imposition and stay of the three-year enhancement pursuant to Penal Code
section 12022.7, subdivision (a), the clerk is to then forward a copy of the amended
abstract of judgment to the California Department of Corrections. The judgment is
affirmed in all other respects.
CERTIFIED FOR PARTIAL PUBLICATION
TURNER, P.J.
We concur:
GRIGNON, J.
GODOY PEREZ, J.
22