IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Butte
April 26, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MICHAEL CALEB CAVALLI, DEFENDANT AND APPELLANT.
Super. Ct. No. CM031205
The opinion of the court was delivered by: Butz ,j.
P. v. Cavalli CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Michael Caleb Cavalli pleaded no contest to voluntary manslaughter and admitted he personally used a firearm in the commission of the offense. (Pen. Code, §§ 192, subd. (a), 12022.5, subd. (a).)*fn1 He was sentenced to an aggregate term of 16 years in state prison. On appeal, defendant contends the trial court abused its discretion by imposing the upper term of 10 years on the firearm use enhancement. Finding this contention to be without merit, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Because this case comes to us after a negotiated plea, our statement of facts is derived from defendant's probation report.
In the morning of July 28, 2009, defendant was at his mother's house on Lucky John Road in Paradise. At 8:13 a.m., defendant's mother, Marilynn Hudson, received a phone call from her estranged husband and defendant's stepfather, Ronald Lee Hudson,*fn2 a 48-year-old African-American. Defendant's mother hung up the phone. Approximately 25 minutes later, Hudson approached the residence, knocked on the locked door, and peered through various windows. Defendant responded by securing his mother and younger brother in the bathroom. He then loaded between six and eight bullets into a .25-caliber pistol and cocked it. Defendant opened the door and immediately shot Hudson in the chest. Defendant admitted acquiring the gun and the ammunition the night before.
Hudson hunched over, clutched his abdomen, and walked away from the house. Defendant was seen pursuing Hudson toward an adjacent parking lot with the pistol pointed at an approximately 45-degree angle "down at the ground." At that point, however, defendant made eye contact with a witness and fled back toward his residence. Defendant ran in an eastward direction toward Paradise Intermediate School. As he passed a group of young people at a nearby soccer field, defendant said something like "'You guys are going to read about me in the newspaper tomorrow.'"
When the police officers responding to reports of a gunshot victim located Hudson, his face was covered in blood and vomit and he had a gunshot wound in his upper right chest. Hudson was in a "state of panic" and trying to stand while repeatedly complaining that he could not breathe. Hudson identified "Mike Cavalli" (defendant) as the person who shot him. Hudson was transported to a local hospital and died a short time later.
Officers searching defendant's bedroom found a large flag depicting an iron cross, a large flag depicting a swastika, a large rebel flag with other gang symbols, an unsheathed knife, prison-style shanks, and several letters from a prison inmate who was a known White supremacist.
Defendant turned himself in to the police later that day. He had the letter "W" tattooed on his left knee, which he told the officers meant "White power," although he subsequently insisted that he was not a racist and that his tattoo was actually an "M." On several occasions, it was reported that defendant referred to Hudson as a "nigger" and his mother as a "nigger lover."
Officers discovered the murder weapon in a portable toilet at the Paradise Cemetery. The gun was unloaded with no magazine and the serial numbers had been obliterated.
The District Attorney filed an information charging defendant in count I with the murder of Hudson (§ 187, subd. (a)), with a special allegation that he intentionally discharged a firearm in the commission of the offense (§ 12022.53).
Prior to trial, the prosecutor moved to amend the information to include a second count charging defendant with voluntary manslaughter, with an enhancement for personal use of a firearm. (§§ 192, subd. (a), 12022.5, subd. (a).) The trial court granted the motion. Defendant then pleaded no contest to count II and admitted the firearm enhancement. Count I was dismissed with a Harvey*fn3 waiver.
At the sentencing hearing on July 13, 2010, the trial court sentenced defendant to 16 years in state prison. The sentence consisted of the middle term of six years for voluntary manslaughter, plus an upper term of 10 years for the firearm enhancement.
Defendant contends the trial court abused its discretion by imposing the 10-year upper term for the firearm use enhancement because the aggravating circumstances were far outweighed by the mitigating circumstances. We disagree.
"An aggravating circumstance is a fact that makes the offense 'distinctively worse than the ordinary.'" (People v. Black (2007) 41 Cal.4th 799, 817 (Black).) The trial court may consider the aggregating circumstances listed in the sentencing rules (Cal. Rules of Court, rule 4.421),*fn4 as well as any other fact "reasonably related to the decision being made" (rule 4.408(a)). The trial court's finding of a single, valid aggravating factor warrants imposition of the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Further, sentencing courts have broad discretion in weighing aggravating and mitigating factors, and may balance them against each other in qualitative as well as quantitative terms. (People v. Lamb (1988) 206 Cal.App.3d 397, 401 (Lamb).)
The trial court must set forth the "reasons" for selecting an upper term on the record. (§ 1170, subd. (b); rule 4.420(e).) However, the record need only reflect the "primary factor or factors" in support of a sentencing choice (rule 4.406(a)), and the court may "rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggregating and mitigating circumstances" (Black, supra, 41 Cal.4th at pp. 813, 822).
In sentencing defendant to the upper term on the firearm use enhancement, the trial judge stated: "[T]here is callousness in the way the crime was committed because it was shooting an unarmed man who the defendant had the element of surprise under [rule] 4.421(a)(8), aggravating factors for the use of the firearm. It does indicate planning. [Defendant] believed that the victim was on his way. He gave no warning to the victim, did not try to call the police. The gun was immediately available. There was no need to load it. There was no serial number on the firearm when it was hidden afterward."
This statement refers to at least two factors identified in rule 4.421(a), specifically, (1) "The crime involved . . . acts disclosing a high degree of cruelty, viciousness, or callousness"; and (2) "The manner in which the crime was carried out indicates planning, sophistication, or professionalism" (rule 4.421(a)(1) & (8)).
As we shall explain, each of these factors constituted substantial justification for imposing the upper term.
I. Callousness or Cruelty
Defendant claims the trial court abused its discretion by relying on the factor of "callousness." He insists that all manslaughters involve some level of callousness and, thus, his situation is not "distinctively worse than the ordinary." Not so.
While it is true all voluntary manslaughter cases involve some level of callousness due to the taking of human life, the killing in this case was carried out in a particularly cruel and callous manner. Instead of calling the police or refusing to open the locked door when Hudson arrived, defendant shot the unarmed and surprised victim as he walked toward the front door. As Hudson staggered into a nearby parking lot clutching his abdomen, defendant followed him with the gun in his hand, before fleeing when spotted by a bystander. Although he could see that Hudson was bleeding, defendant did not call for help, instead leaving his mortally wounded victim to suffocate in his own blood. Defendant then fled the scene and hid the murder weapon. He bragged to children in the school yard that they were "going to read about [him] in the newspaper tomorrow." These facts provided a more than sufficient basis on which to conclude that the crime showed a high degree of cruelty or callousness.
II. Planning and Sophistication
Defendant next faults the court for relying on the fact that he shot the victim, noting that "use of a firearm" is subsumed in the very nature of the enhancement. (Rule 4.421(a)(2).) Defendant distorts the comments of the trial court. The upper term was not imposed for use of a firearm. It was imposed because "[t]he manner in which the crime was carried out indicates planning, sophistication, or professionalism." (Rule 4.421(a)(8).) This factor was present here because defendant obtained a firearm and ammunition the night before the shooting, showing that he planned the killing in advance. Defendant anticipated Hudson's arrival, loaded the gun with six or eight bullets, and cocked the gun before opening the door. The weapon was later found in a toilet with the serial numbers obliterated, indicating defendant tried to avoid having the weapon traced to him. These facts clearly support a finding that the killing was carried out with planning and sophistication.
Defendant admits "there may have been a certain amount of 'planning' and 'surprise' involved," but contends it was not "employed for any nefarious, inherently evil purpose." We disagree. Defendant admitted his intent to shoot and injure Hudson to make him "'realize the next time he would die.'" He also admitted that when his stepfather first arrived at the residence, he considered calling the police or simply pointing the gun at him to scare him off. Instead, defendant chose to pull the trigger and shoot Hudson in cold blood. Defendant's claim is not persuasive.
III. Hate Crime
As we have stated, the trial court identified two valid factors justifying the upper term. However, resentencing is not required for the additional reason that the record contains a third aggravating factor that strongly supports the upper sentence, thereby demonstrating that defendant would not receive a more favorable sentence on remand. (See People v. Davis (1995) 10 Cal.4th 463, 552.)
Rule 4.421(a)(12) provides the trial court may consider whether the record shows evidence of a hate crime under section 422.55, defined as a criminal act committed, in whole or in part,*fn5 because of race or ethnicity (§ 422.55, subd. (a)(4)). The circumstances of this killing clearly indicate that Hudson's race played a significant role in motivating defendant to commit the crime.
Defendant referred to Hudson as a "nigger" on several occasions, and called his mother a "nigger lover" for being with Hudson. His room contained multiple large flags, including one with a swastika, a large iron cross, and other gang symbols. He was obsessed with Adolph Hitler, branded his left knee with a symbol of "White power," and maintained ongoing correspondence with a prisoner who was a known White supremacist. The investigating officer notes in his report that the shooting of Hudson would provide defendant "street credit" in the eyes of his White pride and gang associates. Based on these facts, the trial court could easily have found that defendant shot Hudson, in substantial part, because of his race.
Defendant asserts there were a number of factors that militated against imposition of the upper term. The argument misses the point. It is presumed that the trial court considered all relevant mitigating factors in exercising its discretion (rule 4.409) and there is no requirement that the court state reasons for minimizing or disregarding the mitigating factors. (Lamb, supra, 206 Cal.App.3d at p. 401.) A single, valid aggregating factor that is supported by the record will suffice for affirmance of the upper term. (Black, supra, 41 Cal.4th at p. 813.) Here, there were three valid factors supporting the sentence choice. Accordingly, the presence of circumstances in mitigation is irrelevant.
The judgment is affirmed.
We concur: BLEASE , Acting P.J. MURRAY ,J.