(Super. Ct. No. 10F01924)
The opinion of the court was delivered by: Duarte , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The People charged defendant Richard Michael Douglas with 20 criminal counts, with multiple enhancements for having personally used a firearm, due to his participation in a home invasion robbery. In return for the dismissal of 15 counts and the firearm enhancements with a Harvey*fn1 waiver, he agreed to plead no contest to five counts with a stipulated 13-year lid (maximum prison exposure). The trial court sentenced him to the 13-year lid, consisting of the upper term of nine years on the principal count and consecutive terms on the remaining counts.
Defendant contends the court abused its discretion--both by imposing the upper term on the principal count and by running the subordinate terms consecutively. Disagreeing, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
According to the probation report, on March 19, 2010, at around 12:10 p.m., R.L. (husband) and M.L. (wife) were at home when defendant and his cohort knocked on the front door, identifying themselves as police and dressed in police attire. The robbers forced their way into the house, displayed handguns, handcuffed R.L. and M.L., and made them lie face down on the floor. While one robber held a gun to the back of M.L.'s head, the other ran upstairs and ordered J.L. (age 12) and E.P. (age 64) out of bed, threatening to kill them if they did not comply. They handcuffed J.L. and ordered him to lie face down. They ordered E.P. into a downstairs bathroom and shut her inside. They threatened all of the victims with death. One robber ran upstairs and ransacked parts of the house while the other held the victims at gunpoint. The two escaped with the victims' property by stealing R.L.'s car.
Based on these facts, the People charged defendant with: count 1, conspiracy to commit home invasion robbery (Pen. Code,*fn2 § 182, subd. (a)(1)); counts 2 through 5, home invasion robbery (§§ 211, 213); count 6, first degree residential robbery (§ 459); counts 7 through 10, assault with a firearm (§ 245, subd. (a)(2)); count 11, criminal threat (§ 422); counts 12 through 15, false imprisonment (§ 236); count 16, kidnapping for robbery (§ 209, subd. (b)); count 17, unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a)); counts 18 and 19, receiving stolen property (§ 406, subd. (a)); count 20, false impersonation of a police officer (§ 538d). As to counts 1 through 6, 11, 13, and 16, the People alleged that defendant personally used a firearm. (§ 12022.53, subd. (b).)*fn3
Defendant's Plea and Probation's Recommendation
On the understanding that he could receive a maximum prison sentence of 13 years, defendant entered a plea of no contest to counts 1, 2, 3, 14, and 17; the remaining counts and the firearm enhancements were dismissed with a Harvey waiver. The trial court accepted the plea and made the required findings.
The probation report recommended an aggregate 13-year prison term, consisting of nine years (the upper term) on count 2, two years (one-third the midterm) on count 3, eight months (one-third the midterm) on count 1, eight months (one-third the midterm) on count 14, and eight months (one-third the midterm) on count 17, all to run consecutively. The report cited three circumstances in aggravation: (1) the manner in which the crime was carried out indicated planning, sophistication, and professionalism (Cal. Rules of Court,*fn4 rule 4.421(a)(8)); (2) defendant had engaged in violent conduct which indicated a serious danger to society (rule 4.421(b)(1)); and (3) defendant had entered Harvey waivers as to counts 4 through 13, 15, 16, 18, 19, and 20 (rule 4.408). As to criteria affecting consecutive sentencing, the report opined that the crimes and their objectives were predominantly independent of each other. (Rule 4.425.)
Defense counsel filed a statement in mitigation, requesting probation with a year in county jail. He conceded that the facts recited by the probation officer were accurate, but cited three criteria affecting probation: (1) defendant's prior record of criminal conduct was limited to two petty thefts more than five years before the present matter (rule 4.313(b)(1)); (2) he had expressed remorse in letters to the trial court and to the victims (rule 4.414(b)(3)); and (3) he had written a personal letter to the probation officer further revealing his remorse (rule 4.414(b)(7)). Counsel also cited five circumstances in mitigation: (1) defendant had no apparent predisposition to commit the crime, but was induced by another to participate (rule 4.423(a)(5); (2) he had no significant criminal record (rule 4.423(b)(1); (3) he accepted the consequences of his ...