IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
December 23, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
RYAN ROBERT WHITMAN, DEFENDANT AND APPELLANT.
Mendocino County Super. Ct. No. SCUK-CRCR-09-91776-002
The opinion of the court was delivered by: Kline, P.J.
P. v. Whitman CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Ryan Whitman (appellant) was convicted, following a plea of no contest, of two counts of first-degree robbery of an inhabited dwelling in concert with at least two other persons. On appeal, he contends the trial court (1) abused its discretion when it imposed the aggravated term of imprisonment on the first count of robbery, and (2) violated the prohibition against the dual use of facts when it imposed a consecutive sentence on the second robbery count. We shall affirm.
Appellant was charged by felony complaint with two counts of first-degree robbery of an inhabited dwelling while acting in concert with at least two other persons (Pen. Code, §§ 211, 212.5, 213, subd. (a)(1)(A)--counts one and two);*fn1 one count of first degree burglary (§§ 459, 460, subd. (a)--count three); and four counts of false imprisonment (§ 236)--counts four through seven).
On September 18, 2009, appellant pleaded no contest to counts one and two: first-degree robbery of an inhabited dwelling while acting in concert with at least two other persons. The remaining charges were dismissed.
On December 18, 2009, the trial court sentenced appellant to the upper term of nine years on count one and a consecutive term of two years on count two.
On December 22, 2009, appellant filed a notice of appeal.
On January 7, 2008, at about 7:00 p.m., five or six men entered the house of appellant's former employer, Michael Stanley, in Mendocino County.*fn3 Michael told police that some of the men were armed and wearing ski masks. Some suspects went into other areas of the house, where Michael's wife and children were located. The men who remained with Michael restrained him with zip ties and assaulted him with a taser gun and the butt of a pistol. One of the men held his head down, and whenever he attempted to lift it, the man would hit him. In addition, the men kept asking him, " 'Where is it?' " and, " 'Where is the marijuana?' " While he was restrained, one of the suspects pulled down Michael's pants and tried to " 'stick a fork up my ass,' " and another threatened to shoot him in the knee if he did not cooperate. The men beat him whenever he did something they did not like.
The men then ransacked the house, taking items of value, including several televisions, cell phones, an X-Box 360, and other household electronic items. Before leaving, the men "hog-tied" Michael and his wife and put them in one of the children's rooms. The children were put in the bathroom with a chair in front of the door. The men then left in Michael's vehicles.
When asked why the suspects might have targeted his home, Michael initially denied that any marijuana or money was taken from him, and said that he was not in the marijuana business anymore. After he was told that a large sum of money was recovered from the suspects, Michael acknowledged he had had a large amount of money stashed in a tree stump about half a mile away from his house. He guessed the amount hidden there was between $30,000 and $40,000, from previous marijuana sales. He told police that he led the suspects to the stump and they took the money, before leaving.
Michael broke free of his restraints, went to his brother-in-law's house, and told him what had occurred. His brother-in-law and two other men said they had seen two vehicles--a blue-green sport utility vehicle (SUV) and a gold Nissan Sentra--parked in a clearing about a mile away from Michael's residence and thought they had looked suspicious. The four men then went searching for the suspects. They located the SUV just north of Willits and called the Sheriff's Office with the vehicle information.
Police observed that Michael had swelling on his head, a hematoma behind his right ear and another near his right eye. He also had marks on his lower back area and marks on his upper right buttocks, consistent with the teeth of a dining fork.
Michael's wife, Nichole, told police that she had been in her children's bedroom before going into the hallway and seeing a male wearing a black mask. The man pushed her back inside the bedroom. She eventually went into the kitchen, where she observed Michael tied up and being beaten by one of the men with a black object she thought was a taser. When she tried to look at the man's face, someone grabbed her by the hair and her face was forced towards the floor. She was then shown a taser and forced into a room with her two children, ages six and two. She was guarded by one of the men until, about an hour later, the men used duct tape to tape her to a chair next to her husband. Her children were locked inside the bathroom with a chair against the bathroom door. The men then fled. Nichole and Michael broke free and went to her brother's house.
After receiving a dispatch, police encountered the SUV on US Highway 101. A high-speed pursuit ensued until the SUV eventually ran over a spike strip that was placed in the roadway, causing three of the vehicle's tires to become deflated. The SUV then slowed to about 20 miles per hour and officers noted a rear door opening and closing several times, with someone throwing items from the vehicle. Eventually the SUV was stopped and the three occupants were arrested. Inside the SUV, police located multiple televisions, jewelry, several X-box video games and music compact discs, a camera, computer speakers and a computer monitor, as well as a large amount of cash.
After months of investigating, police determined that appellant, who had previously worked for Michael, was responsible for providing information to the other suspects about the Stanley residence. After initially denying any knowledge of the robbery, appellant admitted to having participated in the incident, but insisted he never entered the residence. He claimed he was coerced into participating and regretted his involvement. He also claimed he had no prior knowledge of the violence that was going to occur and did not believe the children would be present. Appellant was eventually arrested.*fn4
I. The Aggravated Term on Count One
Appellant contends the trial court abused its discretion when it imposed the aggravated term of imprisonment on count one, in light of his limited involvement in carrying out the crimes.
A. Trial Court Background
At the start of the sentencing hearing, the trial court stated that its indicated sentence would deviate somewhat from the probation report, which recommended that appellant be sentenced to the middle term of six years on count one. The court then discussed its findings regarding circumstances in aggravation, as follows: "[T]he crime involved great violence and displayed a high degree of callousness pursuant to [California Rules of Court, rule] 4.421(a)(1)*fn5 ; two of the victims were young children, and the adults were unarmed and outnumbered, making all of them vulnerable under [rule] 4.421(a)(3); the manner in which the crime was carried out--masked men, firearms, use of a Taser and assault--demonstrated planning and criminal sophistication pursuant to [rule] 4.421(a)(8); the crime involved an actual taking of great monetary value, [rule] 4.421(a)(9); the defendant engaged in violent conduct, which indicates a serious danger to society, [rule] 4.421(b)(1)."
The court also found several circumstances in mitigation, including that appellant's criminal record included only "one felony which occurred after the instant offense, [rule] 4.423(b)(1); the defendant stated he was high on illegal substances when he committed this crime, pursuant to [rule] 4.423(b)(2)." The court further found, in mitigation, that appellant had voluntarily acknowledged wrongdoing before arrest, pursuant to rule 4.423(b)(3), and that his prior performance on the "Prop 36" probation was satisfactory.
The court concluded that, "[e]ven considering those factors in mitigation that are contained in the defendant's mitigating sentence statement report, on balance this Court is of the view that the aggravating factors far outweigh those in mitigation."
After appellant's counsel argued that the aggravating factors did not outweigh the mitigating factors, focusing on the fact that appellant's role in carrying out the crimes was minimal, the court further commented: "[B]y providing the information that this was a--a soft target or a good target for robbery and that there would be money and perhaps marijuana seized, he's--he's set into motion this course of conduct that he knew he was setting into motion, and he unleashed onto this family a complete nightmare. . . . [¶] . . . [A]nd it's foreseeable in a home-invasion robbery that the--the danger, the risk of someone getting killed, is--is pervasive. . . . [¶] . . . He should be held accountable for the risk that he put into this situation. It was a betrayal of trust of someone who had once been his friend. I think that's a--a factor that could be considered in aggravation.
"I see nothing here . . . that suggests that, on balance, the mitigating factors at play should--are sufficient to overcome the aggravating factors. It's just my view that the aggravating factors for this kind of a robbery, for this kind of betrayal, for this kind of injection of an extremely dangerous and terrifying situation into the community could be viewed any other way [sic]."
The court then sentenced appellant to the indicated upper term of nine years on count one and a consecutive term of two years on count two, for a total of 11 years in state prison.
B. Legal Analysis
Section 1170, subdivision (b), provides in relevant part: "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court . . . . In determining the appropriate term, the court may consider the record in the case, the probation officer's report, other reports including reports received pursuant to Section 1203.3 and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim . . . and any further evidence introduced at the sentencing hearing. The court shall select the term which, in the court's discretion, best serves the interests of justice."*fn6
In People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval), the California Supreme Court described a trial court's discretion under the amended law as follows: "Even with the broad discretion afforded a trial court under the amended sentencing scheme, its sentencing decision will be subject to review for abuse of discretion. [Citations.] The trial court's sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.' [Citation.] As under the former scheme, a trial court will abuse its discretion under the amended scheme if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision. [Citations.]" Under the amended law, "a trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions. [Citations.] The court's discretion to identify aggravating circumstances is otherwise limited only by the requirement that they be 'reasonably related to the decision being made.' [Citation.]" (Id. at p. 848, fn. omitted.)
In addition to the aggravating circumstances enumerated in rule 4.421, a trial court may base its sentencing decision on "additional criteria reasonably related to the decision being made. Any such additional criteria must be stated on the record by the sentencing judge." (Rule 4.408(a).)
In the present case, appellant argues that the five aggravating factors upon which the trial court relied in sentencing him to the upper term applied to his accomplices, but not to him.*fn7 According to appellant, "both the probation officer and the sentencing court expressly acknowledged that appellant's participation in this crime was limited to providing his accomplices with information and remaining outside during its commission. . . . In the absence, therefore, of any evidence that appellant either participated in the violent conduct of his accomplices or received a portion of the substantial amount of money which they stole, the record does not support any of the aggravating factors upon which the sentencing court relied." (Cf. People v. French (2008) 43 Cal.4th 36, 49 [in an opinion involving section 1170 prior to its amendment, our Supreme Court held that, although a defendant's plea constitutes an admission of all the elements of an offense, it does not constitute an admission of any of the aggravating factors on which a trial court may rely].)
We shall discuss each of the aggravating factors articulated by the trial court in support of its sentencing choice.
First, the court found that "the crime involved great violence and displayed a high degree of callousness," pursuant to rule 4.421(a)(1). The court specifically found that appellant "unleashed onto this family a complete nightmare. . . . [¶] . . . [A]nd it's foreseeable in a home-invasion robbery that the--the danger, the risk of someone getting killed, is--is pervasive. . . . [¶] . . . He should be held accountable for the risk that he put into this situation."
We conclude that the court's basing the upper term in part on the fact that appellant's actions led to crimes of great violence being committed--with appellant instigating the crime, driving with five or six accomplices to the scene, and remaining there while the other men enacted this "nightmare"--was appropriate and its reliance on rule4.421(a)(1) does not constitute an abuse of discretion. (See Sandoval, supra, 41 Cal.4th at p. 847.) That appellant remained outside and did not actively participate in the violence that took place inside the house does not alter the fact that he was responsible for initiating a home invasion robbery of his former employer, whom he said owed him money and whom he believed to have large amounts of marijuana and money hidden in his home. Appellant also knew that Michael had a wife and two young children. He drove to their home at 7:00 on a Monday evening, when the whole family was likely to be home. He waited outside while his accomplices entered the home with a pistol, a Taser, and zip ties. The court's finding that the crime involved great violence and callousness was therefore " 'reasonably related to the decision being made,' " as applied to appellant. (Sandoval, supra, 41 Cal.4th at p. 848.)*fn8
Second, the court found that "two of the victims were young children, and the adults were unarmed and outnumbered, making all of them vulnerable," pursuant to rule 4.421(a)(3). " ' "[P]articular vulnerability" is determined in light of the "total milieu in which the commission of the crime occurred . . . ." [Citation.]' [Citation.]" (People v. Weaver (2007) 149 Cal.App.4th 1301, 1321.)
Here, the court's finding of particular vulnerability was reasonable. These crimes involved the sudden and completely unexpected incursion of masked, armed men into a family's home. As the trial court found, there were two very young children present and the two parents were unarmed and outnumbered. These facts are sufficient to support the court's vulnerability finding. (See, e.g., People v. Ramos (1980) 106 Cal.App.3d 591, 608, overruled on other grounds in People v. Scott (1994) 9 Cal.4th 331, 353, fn. 16 [trial court's finding of vulnerability was "wholly proper" where victim, who was alone in his home, was surprised by sudden assault of defendant and two companions, and where "[h]is likelihood of gaining help from other individuals or fleeing from the scene was greatly diminished by his confinement in his home"].)
Third, the court found that "the manner in which the crime was carried out--masked men, firearms, use of a Taser and assault--demonstrated planning and criminal sophistication," pursuant to rule 4.421(a)(8).
Appellant initiated the planning of this crime and he accompanied his accomplices to the Stanley home with necessarily some awareness--given the circumstances--that one or more weapons would be used in this home invasion robbery.*fn9 In light of these facts, the court's finding that the crime demonstrated planning and criminal sophistication was also " 'reasonably related to the decision being made' " as applied to appellant. (Sandoval, supra, 41 Cal.4th at p. 848.)
Fourth, the court found that "the crime involved an actual taking of great monetary value," pursuant to rule 4.421(a)(9).
Although appellant did not actually physically take the $30,000 to $40,000 from the tree stump, again, he set these robberies in motion; his knowledge of Michael and the money and/or marijuana he expected Michael to have in his possession was the impetus for the actions of appellant's accomplices. Appellant told his accomplices about Michael in the first place, he accompanied them to the Stanley home, he saw them removing electronic equipment from the house, and he presumably expected to receive a share of the proceeds from the robbery. It was not unreasonable for the court to conclude that rule 4.421(a)(9) was applicable to appellant's crimes.
Fifth, the court found that appellant "engaged in violent conduct, which indicates a serious danger to society," pursuant to rule 4.421(b)(1). According to appellant, "in the absence of any criminal record other than a subsequent conviction for possession of narcotics . . . , there is no evidentiary basis" for this finding.
On the contrary, the court found that appellant provided information that the Stanleys would be "a soft target or a good target for robbery," thereby intentionally "setting into motion" a home invasion robbery, which, as was foreseeable, "unleashed onto this family a complete nightmare." The court clearly was not unreasonable in concluding that appellant was not a passive bystander, but instead engaged in violent conduct indicating a danger to society.
Finally, the court found, as an additional factor, that appellant's actions were a "betrayal of trust of someone who had once been his friend. I think that's a--a factor that could be considered in aggravation." Whether the court was referring to rule 4.421(a)(11) ["The defendant took advantage of a position of trust or confidence to commit the offense"], or was relying on "additional criteria reasonably related to the decision being made," under rule 4.408(a), this additional factor also supports its imposition of the upper term. Appellant used his knowledge of the victims' personal and financial situation--having previously been employed by Michael--to set this crime in motion.
In conclusion, the trial court's sentencing decision in this case was based on an " 'individualized consideration of the offense, the offender, and the public interest.' " (Sandoval, supra, 41 Cal.4th at p. 847.) While appellant was not an active participant in what actually took place inside the home, he was the one who specifically targeted the Stanley family and who set off a series of events that were not only horrific, but were fully foreseeable in the circumstances. His attempt to minimize his role in these crimes is unpersuasive. Moreover, the court's finding that the factors in aggravation "far outweigh" those in mitigation was well within its broad discretion. (Ibid.)
II. The Consecutive Sentence on Count Two
Appellant contends the trial court's imposition of a consecutive term for the second robbery conviction violates the prohibition against the dual use of facts.
In imposing the consecutive sentence, the court stated: "Based on the separate offenses on different victims, pursuant to [rule] 4.425,[*fn10 ] I would be imposing the consecutive term on the subordinate Count 2, which would be two years, one-third the midterm, to run consecutive . . . ."*fn11
Rule 4.425(b), provides in relevant part: "Any circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, except:
"(1) A fact used to impose the upper term . . . ." In addition, as our Supreme Court has explained: "There is no persuasive reason why the trial court should not be allowed to consider the fact of multiple victims as a basis for imposing either the upper term or a consecutive sentence, although it cannot do both." (People v. Calhoun (2007) 40 Cal.4th 398, 408.)
According to appellant, the trial court in this case improperly relied on the existence of multiple victims twice: first, in imposing the upper term on count one by finding aggravation based in part on Nichole's vulnerability, and, second, in imposing a consecutive sentence on count two on the ground that Nichole was a separate victim.
First, it does not appear that appellant objected to the court's imposition of consecutive sentences on this ground, which means he has forfeited this claim on appeal. (See People v. Scott, supra, 9 Cal.4th at p. 353.)
In any event, the court's finding of victim vulnerability as one factor in aggravation was not based on the fact that there were multiple victims, but rather on the fact that this family was particularly vulnerable. (See rule 4.421(a)(3).) The trial court did not violate the prohibition against the dual use of facts. (See People v. Calhoun, supra, 40 Cal.4th at p. 408.)
The judgment is affirmed.