(Super. Ct. No. 08F08152)
The opinion of the court was delivered by: Hoch , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Stephen Sherron was part of a group of young men who robbed a man at gunpoint during a power outage at the victim's apartment complex. Convicted by jury of armed robbery and assault with a firearm, defendant was sentenced to a three-year state prison term.
On appeal, defendant contends his trial counsel rendered ineffective assistance at sentencing for failing to object to the trial court's stated reasons for denying him probation. We affirm.
In August 2008, shortly after midnight, the North Highlands neighborhood of Sacramento experienced a power outage. When the lights went out, 18-year-old Chris Marshall stepped outside his apartment to investigate the extent of the blackout. On his way to the street corner adjacent to the apartment complex, Marshall noticed a group of young men hanging out next to one of the apartment buildings.
The apparent leader of this group, Eric Castaneda, a young man who also lived in the complex, approached Marshall. The two briefly engaged in "small talk" before Castaneda left to rejoin the group, which included 19-year-old defendant. When Marshall tried to return to his apartment, he was again approached by Castaneda. This time, the group followed and surrounded Marshall while Castaneda asked whether he wanted to buy any drugs or alcohol. Marshall declined, prompting Castaneda to pull out a revolver. Castaneda hit Marshall in the mouth with the gun while the other group members held his arms and went through his pockets. Marshall was robbed of his cell phone, keys, wallet, and pocket knife.
As already indicated, defendant was convicted by jury of armed robbery and assault with a firearm. The jury also found that a principal in the commission of these crimes was armed with a firearm. The probation report recommended that defendant be sentenced to state prison for the low term of two years, plus an additional year for the firearm enhancement.
Defendant submitted a statement in mitigation requesting a grant of probation and a county jail sentence. He argued several mitigating circumstances supported a grant of probation, i.e., no prior record of criminal conduct, reduced culpability due to physical disability and cognitive impairment, youthful age, and the fact that the victim was not seeking a prison commitment.
In support of his reduced culpability, defendant submitted a neuropsychological evaluation conducted by Dr. John J. Wicks. The report noted, among other things, that defendant was removed from his mother's home by social services at an early age, was placed in a series of foster and group homes, "had problems with normal development throughout his life," and was also diagnosed with epilepsy and placed on anti-seizure medications. The report then provided the results of several cognitive tests. Based on these test results, Dr. Wicks concluded that defendant "clearly has serious neuropsychological impairments which meet the criteria for a formal diagnosis of Cognitive Disorder; it is very likely that he may fit the criteria for a diagnosis of Mental Retardation. His IQ is within the accepted range and many of his other neuropsychological functions fall well into the Extremely Low (Mentally Retarded) range."
Defendant also argued two aggravating circumstances relied on by the probation department should not be used to deny him probation. First, while Castaneda used a weapon during the commission of the offense, defendant merely aided and abetted the commission of the armed robbery. Second, defendant disputed the probation report's conclusion that the crime indicated planning, sophistication, or professionalism. Instead, defendant argued that the crime, occurring as it did during a ...