People v. Brown CA2/8 ( 2016 )


Menu:
  • Filed 9/21/16 P. v. Brown CA2/8
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION EIGHT
    THE PEOPLE,                                                          B262902
    Plaintiff and Respondent,                                   (Los Angeles County
    Super. Ct. No. MA062393)
    v.
    TRAVON D. BROWN et al.,
    Defendants and Appellants.
    APPEAL from judgments of the Superior Court of Los Angeles County,
    Charles A. Chung, Judge. Affirmed as to Brown; affirmed in part, remanded in part as to
    Halpin.
    Benjamin Owens, under appointment by the Court of Appeal, for Defendant and
    Appellant Travon D. Brown.
    William J. Capriola, under appointment by the Court of Appeal, for Defendant and
    Appellant Tyler J. Halpin.
    Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
    General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
    Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
    ******
    We affirm Travon D. Brown’s and Tyler J. Halpin’s judgments of conviction. For
    reasons we shall explain, we remand the case to the trial court to resentence Halpin.
    FACTS AND PROCEDURE
    1. The Crimes
    During the afternoon of March 11, 2014, Halpin (who was then almost 21) and
    Brown (who was then almost 30) robbed Garthen Lenon and Michael Griffin at gunpoint.
    Both defendants were armed. Lenon sold marijuana to defendants prior to the robbery.1
    Lenon and Griffin both recognized Halpin from school or extracurricular activities.
    Defendants took Griffin’s phone and wallet. They took Lenon’s wallet, money,
    watch, and car keys. After the robbery, Lenon and Griffin chased defendants, and Halpin
    shot his gun, possibly in their direction. Lenon told officers that Halpin shot in his
    direction, but at trial he testified that he was not sure whether Halpin pointed at him.
    Halpin testified that the gun discharged accidentally, but a tape-recorded phone call
    suggested that he discharged the gun to prevent Lenon and Griffin from obtaining his
    license plate information. Additionally, Halpin told a deputy sheriff that he was trying to
    scare the victims when he discharged his firearm.
    Days after the robberies, when officers located Brown, he had a firearm in his
    vehicle that was fully loaded and ready to fire. He also was carrying extra ammunition.
    Halpin testified in his defense. He testified that he was a member of a gang but
    did not commit crimes on behalf of the gang. Halpin acknowledged that he had a
    misdemeanor conviction for receiving stolen property and testified that it had been
    expunged.
    With respect to the current robbery, Halpin testified that he initially refused to
    commit the robbery but Brown forced him to participate because he owed Brown money
    for a marijuana debt. Halpin knew that Brown recently had been released from prison
    and was a gang member. Halpin testified that he was apprehensive when Brown told him
    he would “beat” him if he did not participate in the robbery. Halpin testified that his gun
    1      Lenon had been granted immunity prior to trial.
    2
    discharged but he did not aim at anyone. He claimed that he initially believed he had
    shot himself.
    It was undisputed that Brown was a member of Liggett Street gang.
    2. The Convictions
    Jurors found Brown guilty of two counts of second degree robbery (Lenon and
    Griffin). Jurors found Brown personally used a firearm, and a principal intentionally
    discharged a firearm within the meaning of Penal Code section 12022.53, subdivisions
    (b), (c) and (e)(1).2 Jurors found Brown guilty of two counts of assault with a firearm,
    and that with respect to each Brown personally used a firearm within the meaning of
    section 12202.5, subdivisions (a) and (d). Jurors found Brown guilty of two counts of
    being a felon in possession of a firearm (the possession occurring on different days and
    including different weapons). Jurors also found Brown guilty of possession of
    ammunition by a felon. With respect to all counts, jurors found the alleged gang
    enhancement not true. In a court trial, the court found beyond a reasonable doubt that
    Brown previously had been convicted of assault with a firearm.
    Halpin was convicted of two counts of second degree robbery (Lenon and Griffin).
    With respect to each, jurors found that Halpin personally used and intentionally
    discharged a firearm within the meaning of section 12022.53, subdivisions (b) and (c).
    Jurors also found Halpin guilty of assault with a semiautomatic firearm on Lenon and that
    Halpin personally used a firearm within the meaning of section 12022.5, subdivisions (a)
    and (d). Jurors further found that Halpin discharged a firearm with gross negligence in
    violation of section 246.3, subdivision (a). With respect to all counts, jurors found a gang
    allegation not true.
    3. Brown’s Sentence
    The probation officer’s report for Brown indicated that Brown had been
    incarcerated for 14 years for assault with a firearm and had been placed on parole in
    September 2013. He was on parole at the time he committed the crimes in the current
    2      Undesignated statutory citations are to the Penal Code.
    3
    case. With respect to the current crimes, the report identified the following
    circumstances in aggravation: (1) the crime involved the threat of great bodily harm; (2)
    Brown was armed at the time he committed the crime; (3) the crime indicated planning,
    sophistication or professionalism; (4) Brown engaged in violent conduct indicating he
    was a serious danger to society; (5) Brown’s prior convictions are numerous or of
    increasing seriousness; (6) Brown served a prior prison term; and (7) Brown was on
    parole when the crime was committed. The probation officer’s report identified no
    circumstances in mitigation. In the People’s sentencing memorandum, the prosecutor
    argued that Brown took advantage of a position of trust or confidence to commit the
    offense.
    At Brown’s sentencing hearing, the court asked if defense counsel wanted to
    argue. Brown’s counsel responded “no.” After discussing the application of section 654
    with the prosecutor, the court pronounced sentence imposing an aggregate sentence of 33
    years. It selected the high term of five years for the robbery of Lenon and doubled that
    term because of Brown’s prior serious felony conviction (§§ 667, subds. (b)-(i), 1170.12,
    subds. (a)-(d)). The court added 10 years for the section 12022.53, subdivision (b)
    firearm enhancement. For the second robbery count, the court sentenced Brown to a total
    of five years four months, comprised of one-third the midterm, doubled for the
    substantive offense, and one-third the enhancement term. For being a felon in possession
    of a firearm, the court sentenced Brown to one-third the midterm and doubled the
    sentence, totaling one year four months. For possession of ammunition, the court
    sentenced Brown to one-third the midterm and doubled it, totaling one year four months.
    The other counts were stayed under section 654. The court selected all sentences to run
    consecutively. It imposed a five-year prison prior (§ 667, subd. (a)) and a $9,900
    restitution fine.
    4. Halpin’s Sentence
    With respect to Halpin, the probation officer’s report indicated that Halpin had no
    criminal history. The following three circumstances in aggravation were identified: (1)
    the crime involved the threat of great bodily harm; (2) Halpin was armed with and used a
    4
    weapon at the time of the crime; and (3) the manner of the crime indicated planning,
    sophistication, or professionalism. In mitigation, the probation officer noted Halpin’s
    lack of a prior record.
    In a sentencing memorandum, the prosecutor urged the court to impose the
    maximum sentence. As factors in aggravation, the prosecutor argued that (1) Halpin
    prevented or dissuaded witnesses from testifying, suborned perjury, or illegally interfered
    with the judicial process; (2) the manner the crime was committed indicated planning,
    sophistication or professionalism; and (3) Halpin took advantage of a position of trust or
    confidence to commit the offense. The prosecutor argued consecutive sentences should
    be imposed because there were separate victims.
    At Halpin’s sentencing hearing, defense counsel asked to be heard, and the court
    gave him an opportunity to argue. Counsel requested that the court “minimize the
    seriousness of what occurred that day.” Counsel emphasized that Halpin was young, did
    not have a significant prior record, and did not have a history of violence.
    The court then discussed restitution and appellate rights. Next the court
    pronounced sentence, without providing any reasons for its sentencing choices. For the
    robbery of Lenon, the court selected the high term of five years and added 20 years for
    the section 12022.53, subdivision (c) firearm enhancement. The court sentenced Halpin
    consecutively for the robbery of Griffin to one-third the midterm for the substantive
    offense and one-third the enhancement term, totaling seven years eight months. The
    court stayed the remaining counts under section 654. Halpin’s aggregate sentence was 32
    years eight months.
    DISCUSSION
    Both Brown and Halpin challenge their sentences and argue that resentencing is
    required. As we shall explain, we conclude that resentencing is necessary only with
    respect to Halpin.
    1. Brown
    Brown argues that he received the ineffective assistance of counsel because his
    counsel presented no argument regarding sentencing.
    5
    “ ‘In order to demonstrate ineffective assistance of counsel, a defendant must first
    show counsel’s performance was “deficient” because his [or her] “representation fell
    below an objective standard of reasonableness . . . under prevailing professional norms.”
    [Citations.] Second, he [or she] must also show prejudice flowing from counsel’s
    performance or lack thereof. [Citation.] Prejudice is shown when there is a “reasonable
    probability that, but for counsel’s unprofessional errors, the result of the proceeding
    would have been different. A reasonable probability is a probability sufficient to
    undermine confidence in the outcome.” ’ ” (In re Harris (1993) 
    5 Cal.4th 813
    , 832-833.)
    An attorney that fails to pursue an advantageous sentencing choice for his client may be
    incompetent. (People v. Scott (1994) 
    9 Cal.4th 331
    , 351.) A defendant bears the burden
    of proving ineffective assistance of counsel by a preponderance of the evidence. (People
    v. Powell (2011) 
    194 Cal.App.4th 1268
    , 1298.)
    Brown argues that he received the ineffective assistance of counsel because his
    counsel did not advocate for a more favorable sentence. Brown further argues that had
    his counsel advocated on his behalf “it is reasonably probable that Brown would have
    received a middle term instead of a high term sentence, received concurrent sentences, or
    received a lesser restitution fine.”
    Brown has not demonstrated that there was an advantageous sentencing choice for
    his counsel should have pursued. There was no mitigating factor and numerous
    aggravating factors. It is conceivable that Brown’s counsel made no argument because
    there was no meritorious contention to advance. At least for purposes of this appeal,
    Brown has not identified one.
    Moreover, nothing in the record supported Brown’s claim that he suffered
    prejudice from his counsel’s failure to argue that his sentence should be different. For
    example, although Brown recognizes that the aggravating factor that the crimes were
    committed in a manner indicating planning, sophistication, or professionalism requires
    only one of the three criteria, he argues the crime showed only planning. Planning was
    sufficient, and there was strong evidence of planning. It was undisputed that Brown
    played a lead role in the robberies and may have forced Halpin to participate. Thus, even
    6
    if as Brown argues there was no evidence of sophistication or professionalism, that
    argument fails to suggest that Brown should have or could have received a more
    favorable sentence because the record overwhelmingly showed Brown planned the
    robberies. Additionally, several other aggravating factors supported Brown’s sentence.
    Most notably, he had recently been released from prison on a similar offense and was on
    parole when he committed the current robberies.
    Next, Brown argues that his gang membership was not relevant, and that the fact
    he possessed firearms and ammunition were elements of crimes for which he was
    convicted. Assuming his arguments are accurate, they do not undermine the numerous
    aggravating factors that supported Brown’s sentence. Finally, Brown’s argument that the
    trial court may have been receptive to a lesser restitution fine because he could not afford
    the $9,900 amount is not persuasive because it assumes facts not in the record and is not
    supported by any evidence in the record. In short, Brown fails to demonstrate any
    prejudice from his trial counsel’s silence on the issue of the appropriate sentence. (See
    People v. Ortiz (2012) 
    208 Cal.App.4th 1354
    , 1373-1374 [finding no prejudice when
    defendant’s trial counsel failed to object to the court’s imposition of the upper term].)
    2. Halpin
    Halpin also argues resentencing is required.
    a. No Forfeiture
    Here, the court imposed the upper term identifying no reason for its decision. The
    court also imposed consecutive sentences identifying no reason for that selection.
    Respondent acknowledged that the trial court provided no reason for its sentencing
    choices. Respondent, however, argues that Halpin’s argument is forfeited.
    Halpin’s argument is not forfeited. Our Supreme Court has held that “a party in a
    criminal case may not challenge the trial court’s discretionary sentencing choices on
    appeal if that party did not object at trial.” (People v. Gonzalez (2003) 
    31 Cal.4th 745
    ,
    748, 752.) However, our high court emphasized that “counsel must have a ‘meaningful
    opportunity to object [which] can occur only if, during the course of the sentencing
    hearing itself and before objections are made, the parties are clearly apprised of the
    7
    sentence the court intends to impose, and the reasons that support any discretionary
    sentencing choices.’ ” (Id. at p. 748.) Because the trial court never identified its reasons
    supporting its discretionary choices, Halpin’s counsel never had a meaningful
    opportunity to object.
    b. Resentencing Is Required
    A court has discretion to select the term of confinement when as in the robbery
    statute, the statute specifies three terms. (Pen. Code, § 1170, subd. (b).) “The court shall
    select the term which, in the court’s discretion, best serves the interests of justice. The
    court shall set forth on the record the reasons for imposing the term selected . . . .” (Ibid.)
    The court also had discretion to sentence to concurrent terms if as here multiple current
    felony convictions were committed on the same occasion and arose from the same
    operative facts. (People v. Hendrix (1997) 
    16 Cal.4th 508
    , 512-513.) The court was
    required to state its reasons to support its consecutive sentence. (People v. Powell, supra,
    194 Cal.App.4th at p. 1297; People v. Garcia (1995) 
    32 Cal.App.4th 1756
    , 1769.)
    Respondent argues that the trial court must have relied on the factors listed in the
    prosecutor’s sentencing memorandum and/or the probation officer’s report. However,
    that assumption is not supported by the record because the court did not identify any
    factor included in either the memorandum or report to support its decision. Nor is this a
    circumstance where the upper term appeared inevitable. There were mitigating factors
    which the court could have relied on justifying a low term or midterm sentence. Halpin
    had no significant prior record, having been convicted only of a misdemeanor that later
    was expunged. Halpin testified that he was forced by Brown to commit the robbery and
    that he felt scared and pressured. Although he was a gang member, he had no history of
    violence. Additionally, Halpin acknowledged his participation in the robbery, admitting
    his guilt. The court may have selected a different term had it stated its reasons, and
    resentencing therefore is required. (People v. Sanchez (1994) 
    23 Cal.App.4th 1680
    ,
    1684, 1688 [resentencing is required when it is reasonably probable a more favorable
    result would have been reached in the absence of the error]; People v. Calvert (1993) 
    18 Cal.App.4th 1820
    , 1838 [remand for resentencing is appropriate when court fails to state
    8
    reasons for consecutive sentences]; People v. Wychocki (1987) 
    188 Cal.App.3d 1063
    ,
    1066 [resentencing required when court failed to provide reasons for denying probation
    and defendant had no prior criminal record].)
    DISPOSITION
    Brown’s conviction is affirmed (and no resentencing is required). Halpin’s
    conviction is affirmed, but the matter is remanded for resentencing.
    FLIER, J.
    WE CONCUR:
    BIGELOW, P. J.
    RUBIN, J.
    9
    

Document Info

Docket Number: B262902

Filed Date: 9/21/2016

Precedential Status: Non-Precedential

Modified Date: 4/18/2021