Opinion
B302108
04-15-2021
THE PEOPLE, Plaintiff and Respondent, v. ARTHUR LEE LEWIS, Defendant and Appellant.
Kieran D. C. Manjarrez, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Michael R. Johnsen, Supervising Deputy Attorney General, David W. Williams, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. TA144866) APPEAL from a judgment of the Superior Court of Los Angeles County, Patrick Connolly, Judge. Affirmed. Kieran D. C. Manjarrez, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Michael R. Johnsen, Supervising Deputy Attorney General, David W. Williams, Deputy Attorney General, for Plaintiff and Respondent.
____________________
Defendant and appellant Arthur Lee Lewis and co-defendant Eric Roberts were charged with the murder of Trevon Brown. (Pen. Code, § 187, subd. (a).) It was alleged that defendants personally used and/or discharged a firearm causing great bodily injury or death (§ 12022.53, subds. (b), (c), (d) & (e)(1)), in association with, or for the benefit of, a criminal street gang (§ 186.22, subds. (b)(1) & (b)(5)).
All further statutory references are to the Penal Code unless otherwise indicated.
At the close of the prosecution's case-in-chief, the personal use of a weapon charge was stricken as to Roberts. The jury acquitted Roberts of the murder, and convicted Lewis of the lesser offense of voluntary manslaughter. (§ 192.) It found true the weapons allegation against Lewis (§ 12022.5, subd. (a)), but found the gang allegation not true.
The trial court imposed the high term of 11 years for voluntary manslaughter and the high term of 10 years for the weapon enhancement, sentencing Lewis to a total of 21 years in prison.
On appeal, Lewis contends that the trial court (1) abused its discretion by admitting evidence of a past gang crimes, in violation of his constitutional right to due process, and (2) erred when it considered evidence contrary to the jury's "verdict of acquittal" when imposing the high terms at sentencing, in violation of his constitutional rights.
We affirm the trial court's judgment.
FACTS
On December 3, 2017, brothers Lewis and Roberts rode the light rail from Long Beach to Compton. When the brothers got off the train, they asked several people which gangs they were from. A woman nearby noticed that they appeared excited, and she heard one of them say "I got it on me."
One of the persons Lewis and Roberts approached was Joshua Moton. In a recorded interview with officers that was played at trial for the jury, Moton stated the following: Lewis asked Moton where he was "from." Roberts told Moton he was a Swan Blood. Lewis said he was from "Grape Street," and warned, "Just know I'm not lacking." Moton explained this meant that Lewis was carrying a gun. The brothers "introduce theirself to everybody [at the station]. So they go around to everybody else banging on everybody else." Brown walked up to them, and Lewis asked Brown where he was from. Brown said: "I don't bang, but . . . we can fight if you got a problem with me." Roberts said he was from the Swans gang. Someone hit Roberts and a fight broke out between about four men, including Lewis, Brown, and Roberts. Lewis was getting beaten and was balled up on the ground in the corner. He jumped up and whipped out a gun. Moton yelled that Lewis had a gun, but "it was too late." Lewis shot Brown, who was unarmed. Brown ran a few steps, and then collapsed, struggling to breathe. He was subsequently taken to a hospital, where he died from a gunshot wound to the chest.
At trial, Moton denied much of what he told officers in the interview.
A video recording taken from the Compton station corroborated Moton's statement, but did not depict Lewis shooting Brown. Lewis was out of camera range when he fired the fatal shot.
After the killing, several of Lewis's phone calls were recorded as part of an ongoing wiretap investigation. Lewis had the following conversation with TK Don, a fellow Grape Street gang member:
"Lewis: I probably finna, I probably finna get on the run all type of shit.
"[TK Don]: What happened?
"Lewis: I just had to do a [guy] at the train station.
"[TK Don]: (Unintelligible) on Beezy!
On Beezy, on Geo, on Young, and on Grape are used by Grape Street gang members to swear to the truth of what they have said.
"Lewis: On Beezy!
"[TK Don]: What happened?
[¶] . . . [¶]
"Lewis: Man on Young, first we on the train coming from Long Beach, some [derogatory name for rival gang members] get on the train, about three of them. We mark them out, on Geo, they didn't want to do nothing. . . .
[¶] . . . [¶]
". . . Man, on Young look, so look, a [guy] get off the train, on Beez, now I'm telling somebody. I'm talking to my Mamacita right there. (unintelligible) I got it on me, woopty woo. [The guy] said something like 'Oh I got it on me too.' (Unintelligible) said 'What, [man]?' On Geo, [man], what you gonna, On Young, so I got on him, 'What you wanna do?' On Geo the [guy] said, said something like, [']Well I ain't never lacking,' like straight, tried to fake shuffle, I half way whipped it out, and it, on Beezy, now my brother, now the [guy] say something, something, something, PJ's. Looked at my brother, he said 'Swan Deuce.' Yo, I instantly I kicked it off safety, on Beezy. Man this lil [jerk], another [guy] walked up talking about Four-Six Neighbo- I'm like Grape Street or nothin. Lil [guy] walked up like, 'Four-Six Neighborhood.' Man, on Beez, next thing you know, [guys] come, they pull, they pull to us. On Beezy like, one [guy] said something, next thing you know we coming from everywhere. Man they, man- ten, twenty, ten, fifteen [guys] came, came out the woodwork, on Young. On Geo, one [guy] talking about Four-Six Neighborhoods. My brother's like, Swans woot woot. On Geo, then next thing you know, on Beez, they tried to came from everywhere. Man, a [guy] ran up from behind me like, like he stole on Beez some soft (Unintelligible) it ain't do no- I ain't, I ain't budge. Soon as I like turn around, on Beezy, my brother socked a [guy], the [guy] go down. On Geo, now I, I see a [guy] running up, on Beez, I whipped on it. Bow! On Young, it jammed and everything. The [guy] went 'Oh!' On Beezy we got out of there at the Compton station."
"Lewis: Beezy, but I know the [guy] got hit. . . . I was right up on the [guy], on Young. Beezy, 'Oh!' On Young, everybody started running everywhere, scattering, getting outta there. On Beezy, we started getting outta there.
[¶] . . . [¶]
"Then we started hearing the sirens and all that coming. On Geo, we got picked up, there was police everywhere. We were laying down."
Lewis had another conversation in which he discussed the victim's identity.
"[Caller:] Man whe- . . . man, where this [guy] was from?
"[Lewis:] Man, Flea Jay, then there was [guys] from everywhere. Flea Jay, Fo' Six Neighborhood, man. I don't know. [Guys] started comin' out the woodwork. On Young."
"Flea Jay" is a derogatory term used by Grape Street members to refer to the "PJ" Watts gang.
In another call with TK Don, Lewis learned the identity of the man he shot:
"[TK Don:] On Young, I see who the [guy] is.
"[Lewis:] Yeah?
[¶] . . . [¶]
"[TK Don:] On Young. He from 4-6 Neighborhood. On Beezy.
"[Lewis:] Yeah?
[¶] . . . [¶]
"[TK Don:] Hold on. I'm finna. Go to, go . . . You can get on, you can get on social media?
"[Lewis:] Yep.
"[TK Don:] It's Travon Brown.
"[Lewis:] Huh?
"[TK Don:] Tra-, a [guy], uh, a [guy] with some little dreads.
[¶] . . . [¶]
"[TK Don:] Know what I'm sayin'. The weird, the lil' fat [guy], I just seen the fat [guy] post somethin' like, 'RIP, bro. I love you, fool. It was too soon to go.'"
DISCUSSION
Admission of Prior Gang-Related Crimes Evidence
Lewis contends that the trial court erred in admitting evidence of prior gang crimes because the evidence was not relevant to intent, and the uncharged crimes were not sufficiently similar to the charged crime. He further argues that the error rose to the level of a due process violation.
Proceedings
Prior to trial, the prosecution moved to consolidate this matter with Los Angeles County Superior Court case No. TA145980, another murder case in which Lewis was charged (the 76 Station case).
The trial court denied the motion, reasoning that not all evidence would be cross-admissible, the crimes were not part of the same transaction, and consolidation would be time-consuming. The trial court further explained that the other six defendants charged in the 76 Station case could suffer undue prejudice from consolidation, as the jury could be confused by the evidence with respect to those defendants.
The prosecution subsequently filed a motion in limine to admit evidence of Lewis's participation in the 76 Station case, for the purposes of proving intent, premeditation and deliberation, motive, and lack of accident or self-defense in the present case under Evidence Code section 1101, subdivision (b). The prosecution proffered that, in August of 2016, Lewis was part of a three-car caravan of Grape Street gang members who entered rival gang territory and shot and killed a man at a 76 gas station. Lewis was not the shooter, but drove the car that acted as a decoy vehicle for the vehicle containing the shooter.
Lewis filed a written opposition to the motion. He conceded that, in the instant case, he intended to kill Brown, but argued that he acted in self-defense. He contended that the uncharged crime was inadmissible to show intent because "there has been no finding that [he] in fact had the intent to kill when he participated in the prior crime"; and the incident was not sufficiently similar to the charged crime to be probative of intent. Lewis reasoned that, because the crimes were not sufficiently similar to establish intent, the 2016 incident could not be admissible under Evidence Code section 1101, subdivision (b) for any other purpose, as intent requires the least degree of similarity for admission. Lewis argued he was not claiming accident or mistake, so the incident was not relevant for the purpose of rebutting those defenses. He asserted that the incident did not provide a motive for the instant crime and was therefore not probative for that purpose. Finally, Lewis contended that evidence of the 76 Station shooting should be excluded under Evidence Code section 352, because the evidence would require considerable time to present, and "if the evidence shows that this crime was similar to the alleged previous one, then evidence of the previous crime is superfluous."
At a hearing on the matter, the prosecution elaborated on the details of the 76 Station shooting. The prosecutor explained that two of Lewis's fellow gang members fell out of good standing with the Grape Street gang, and, as a result, a shot caller in the gang ordered them to redeem their reputations by going out "trooping." The shot caller told the men, "'you've got to shoot.'" He asked for other volunteers, and several other gang members, including Lewis, agreed to participate in the shooting. The men split up into three cars, which stayed in constant communication via cell phones in speaker mode. The shot caller was in one vehicle, the shooter was in a second vehicle, and Lewis drove the third vehicle, which served as a decoy.
The cars drove to the area near the Howard Hughes Center, where the shot caller identified a target. The shooter stepped out of the car and fired into another vehicle at the individual who had been targeted. The intended victim was not killed and drove away.
Afterwards, the gang members re-grouped. The shot caller was angry that the target survived the shooting and ordered a second shooting about an hour later in Nickerson Gardens. There, the shooter shot into a crowd of people, but no one was hit.
The gang members again re-grouped, this time in the Watts area. The shot caller was very upset that the shooter had missed again and ordered a third hit. The shot caller pointed out another target at a 76 gas station. The shooter's car pulled into the gas station next to a parked car, and the shooter shot and killed the individual who had been targeted.
The prosecutor proposed to introduce the evidence through one of the gang members who participated in the 76 Station murder, with possible testimony by a sheriff's deputy and a police officer.
Defense counsel argued that the instant case against Lewis was weak and would be unfairly bolstered by the stronger 76 Station case. Counsel asserted that intent had not been proven in the 76 Station case which had not yet been tried, and was "not necessarily the issue" in the present case.
The trial court disagreed, noting that the defense's position was "the intent is there, but mitigating it. But intent, regardless, is going to be an issue in this case."
Defense counsel responded that the 76 Station case was too dissimilar to the present case to be admissible. Counsel argued that the prosecution was "trying to use the other case to prove intent on this case."
The prosecutor countered, "[I]ntent remains an issue. But, also, we don't agree. We agree that there was intent at the moment of the shooting. But the People's argument is that there was intent even before they got on the train. And that intent is informed by what [Lewis] has done in the past." The prosecutor continued, "Now, 1101(b) doesn't mention premeditation and deliberation. But whether you want to call it intent or deal with them as one of the other issues, those are all things that are elements that need to be proven. And, obviously, having been implicated and involved in another fatal shooting does show that you have had reason to think about what these guns do."
The prosecutor noted that the audio and video evidence in the instant case was clear, "[s]o the real question is what was in Arthur Lewis' and to a different extent Eric Roberts' minds? And when Arthur Lewis goes out that day with a gun in his waistband and starts creating these issues, does he -- what is his view towards how this gang life operates? [¶] . . . [¶] And what you have on both occasions is going out and finding someone that you perceive to be a rival and shooting them."
The prosecutor explained, "[T]he important part isn't his criminal liability in [the 76 Station] case. The important part is he's been involved in finding random people who are perceived to be rivals, in rival territory, and watching as they are shot and killed -- or shot at and one is killed, simply for that reason. And that he's had the chance to premeditate and deliberate on what he would do with this gun, under those circumstances, and then he did it. [¶] So the idea that this quarrel arose out of no where [sic], or for the jury to think to themselves, well, maybe he never thought about what it's like, or what he would do if it gets this far."
The trial court granted the prosecution's motion, stating: "[In this case,] [Lewis] actually went into an area where he was going to be exposed, and was exposed, because somebody came up from behind him and . . . [punched] him. . . . And they put themselves in a position where if not armed are going to, at the very least, be beaten.
[¶] . . . [¶]
"But what is the reason for going into that territory, standing behind his brother? That's going to be for the jury to make that decision. And whether or not that shot was fired in self defense is going to be for them. But the intent is going to be at issue here. And the Court is going to allow the People to put on the evidence of the [76 Station] murder, but it is going to be minimal. We are not going to be getting into a second trial."
The prosecution called Deanthony Bradford, who testified consistently with the prosecutor's proffer at the hearing. Bradford explained that the goal was to kill a rival gang member from the Bounty Hunters. The caravan of cars assembled outside of Jordan Downs in an area that was free of cameras. Bradford identified the man who was to be killed; he believed that the man was a Bounty Hunter because he was a black man in Bounty Hunter territory. After the shooting "it played out like a puzzle"—the cars drove away with the shooter in the lead and the decoy vehicle last. Police officers pulled over the decoy vehicle that Lewis was driving, just as the shot caller had planned, and the other cars drove away.
Officer Richard Delgado and Deputy Steven Blagg also testified regarding the murder at the 76 station.
The court instructed the jury under CALCRIM No. 375, explaining that it could use the evidence of the killing at the 76 station "only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged offenses[,]" and could consider the evidence only "for the limited purpose of deciding whether, first, the defendant had a motive to commit the offense alleged in this case; second, the defendant knew the nature and consequences of his actions when he allegedly acted in this case; third, the defendant's alleged actions were not the result of mistake or accident; or, four, the defendant had the required mental state during the commission of the charged offense."
Legal Principles
"Only relevant evidence is admissible . . . ." (People v. Harris (2005) 37 Cal.4th 310, 337 (Harris); Evid. Code, §§ 210, 350.) Evidence is relevant if it "'tends "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive.' [Citation.]" (Harris, supra, at p. 337.) Trial courts have broad discretion in determining whether evidence is relevant. (Ibid.) We review a trial court's ruling on the admissibility of evidence for an abuse of that discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717.)
"[E]vidence that a person committed a crime, civil wrong, or other act" is admissible when it is relevant to prove some fact such as "motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident" (Evid. Code, § 1101, subd. (b)), "'or to overcome any material matter sought to be proved by the defense.' [Citation.]" (People v. Alcala (1984) 36 Cal.3d 604, 631, superseded by statute on other grounds as stated in People v. Falsetta (1999) 21 Cal.4th 903, 911). Even when evidence is relevant under Evidence Code section 1101, subdivision (b), however, it must be excluded under Evidence Code section 352 if its prejudicial effect substantially outweighs its probative value. (People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt).)
Evidence Code section 352 is intended to prevent undue prejudice, that is "'"evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues,"' not the prejudice 'that naturally flows from relevant, highly probative evidence.' [Citations.]" (People v. Padilla (1995) 11 Cal.4th 891, 925, overruled on other grounds by People v. Hill (1998) 17 Cal.4th 800.) The courts recognize that gang-related evidence may have a "'highly inflammatory'" impact. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167.) However, "evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant's gang affiliation . . . can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime." (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)
This court will not disturb a trial court's exercise of discretion under Evidence Code section 352 absent a showing that the trial court abused its discretion. (People v. Branch (2001) 91 Cal.App.4th 274, 281-282.) Under Evidence Code section 352, "[t]he least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] '[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .' [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant '"probably harbor[ed] the same intent in each instance." [Citations.]' [Citation.]" (Ewoldt, supra, 7 Cal.4th at p. 402.)
Analysis
The People contend that Lewis forfeited his challenges to the other crimes evidence by failing to object during trial. As a general rule, even "'when an in limine ruling that evidence is admissible has been made, the party seeking exclusion must object at such time as the evidence is actually offered to preserve the issue for appeal.' [Citations.]" (People v. Morris (1991) 53 Cal.3d 152, 189 (Morris), disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) There is an exception, however, and an in limine motion will preserve the issue for appeal, if the motion satisfies the requirements of Evidence Code section 353, subdivision (a). (Morris, supra, at p. 190.) A motion in limine meets the requirements of Evidence Code section 353, subdivision (a), only when: "(1) a specific legal ground for exclusion is advanced and subsequently raised on appeal; (2) the motion is directed to a particular, identifiable body of evidence; and (3) the motion is made at a time before or during trial when the trial judge can determine the evidentiary question in its appropriate context." (Morris, supra, at p. 190.) In this case, Lewis objected to specific prior crimes evidence on the basis that it was not probative of intent and the prior crimes were not sufficiently similar to the charged crime. The evidence discussed at the hearing on the motion in limine did not vary from the evidence presented at trial in a manner that would require us to review it in a different context than the trial court did. We are satisfied that the objection met the requirements of Evidence Code section 353, and preserved Lewis's challenge on appeal. Although Lewis preserved the issue, however, we agree with the People that it is without merit. The uncharged crimes were relevant and sufficiently similar to the charged crimes to be admissible to establish intent under section 1101, subdivision (b).
Evidence Code section 353 provides in part: "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion."
We reject Lewis's argument that the trial court erred because it confused intent and common design or plan. Lewis conflates these separate bases for admission of evidence under section 1101, subdivision (b). Evidence is relevant to common plan if it tends to establish an overarching scheme; intent refers to the defendant's mental state. The evidence of the 76 Station murder was not admitted for the purpose of demonstrating an overarching scheme or connection between the two offenses, and indeed, the jury did not consider it to be, as it found the allegation that the murder was committed for the benefit of the Grape Street gang not true. The evidence was offered to illuminate Lewis's thought process at the time of the shooting. The fact that Lewis had volunteered to participate in the murder of a (perceived) rival outside of Grape Street territory was evidence from which the jury could draw the inference that on the date of the instant crime he had also voluntarily gone into an area where he was likely to encounter rival gang members, and intended to kill one. The evidence tended to negate Lewis's argument that he reacted in self-defense, and support the prosecution's theory that he acted with premeditation and deliberation.
We also reject Lewis's contention that because he was not the shooter in the 76 Station case, the evidence of that shooting was not probative of his intent in the present case. Lewis interprets precedent to require that the uncharged acts and charged acts be identical. There is no such requirement. (Ewoldt, supra, 7 Cal.4th at p. 402 ["[t]he least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent"].) Our Supreme Court has held that "a fact finder properly may consider admissible 'other crimes' evidence to prove intent, so long as (1) the evidence is sufficient to sustain a finding that the defendant committed both sets of crimes [citations], and further (2) the threshold standard articulated in Ewoldt can be satisfied—that is, 'the factual similarities among the charges tend to demonstrate that in each instance the perpetrator harbored' the requisite intent. [Citations.]" (People v. Soper (2009) 45 Cal.4th 759, 778.)
Lewis's own actions in the 76 Station case evidenced his intent. He volunteered to facilitate the deadly 76 Station shooting, and his culpability arose from that participation. The shooting was carefully orchestrated—cars were loaded in areas without cameras and three vehicles were used, including Lewis's decoy vehicle which was intended to draw police away from the shooter's vehicle and the murder weapon. The jury in the instant case could have found, by a preponderance of the evidence, that Lewis was a direct aider and abettor of the shooter in the 76 Station case, and as such, that he harbored the intent to kill, or even committed premeditated and deliberate murder.
The incidents bore significant similarities. In the 76 Station case, Lewis was part of an armed caravan that entered rival gang territory to kill a rival gang member. In the instant case, Lewis entered an area where he was likely to meet rival gang members carrying a loaded gun, confronted numerous persons to ascertain whether they were affiliated with rival gangs, and shot a man after he encountered people who claimed gangs other than Grape Street. These similarities are great enough "to support the inference that [Lewis] '"probably harbor[ed] the same intent in each instance." [Citations.]' [Citation.]" (Ewoldt, supra, 7 Cal.4th at p. 402.)
Finally, Lewis argues that, even if the evidence of the 76 Station murder was relevant to intent, he did not dispute that he intended to kill Brown, such that the evidence relating to intent was both irrelevant and unduly prejudicial. Intent was the primary issue in this case. Lewis argued that he acted in self-defense, which, if reasonable, would have absolved him of the crime. In contrast, the prosecution charged him with first degree murder, alleging that the crime was premeditated and deliberate. The evidence of the 76 Station murder was relevant, as we have discussed, but not unduly prejudicial. In that case, Lewis played a less central role. The jury watched the video of Lewis shooting Brown. In comparison, the fact that he drove the decoy vehicle in the 76 Station case was highly unlikely to unfairly inflame the jurors.
Even if Lewis's intent or mental state had been uncontested, however, our Supreme Court "rejected this argument in [People v.] Scott [(2011)] 52 Cal.4th 452 . . . . Defendants pleaded not guilty, placing in issue all the elements of murder." (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 407.) Having pleaded not guilty to murder, Lewis necessarily placed intent in contention. The trial court did not abuse its discretion by admitting the uncharged crimes evidence, nor did it violate Lewis's right to due process by admitting the prior crimes evidence. (People v. Hovarter (2008) 44 Cal.4th 983, 1010 ["[t]he 'routine application of state evidentiary law does not implicate [a] defendant's constitutional rights'"].)
Imposition of the High Term for Manslaughter and the Weapons Enhancement
Prior to imposing the high term on both the voluntary manslaughter conviction and weapons enhancement, the trial court stated, "I thought it was very clear that you should have been convicted of murder. All right. And I can't do anything about that. That's what the jury saw, and I respect that, and we all have to accept that.
"But you are the one who went with your brother. You engaged, at least through part of that day, in wanting to let people know who you were and what you stood for.
"All right. You were the one who was armed with that handgun. There was no reason for you to do that.
"I shouldn't say that. There's no good reason. There is no legitimate reason for you to have done that.
"And in this situation, whether or not it was Travon or whomever that was getting the best of you and your brother, . . . you decided to up the ante. . . . You stepped it up and you decided that you were going to utilize what you had to make sure that you were going to be victorious. I don't think that you cared whether or not you were killing somebody at that time."
The court addressed the families of both Lewis and Brown, and then continued, "[s]o with that, in this matter I think that the factors in aggravation greatly outweigh the factors in mitigation, in that Mr. Brown was unarmed, that he was not the cause of, but his death was the effect of yourself and your actions and your brother's actions."
The trial court then imposed the high term of 11 years for voluntary manslaughter and the high term of 10 years for the firearm enhancement. Lewis did not object.
Analysis
Lewis contends that the trial court erred by making findings that were contrary the jury's "verdict of acquittal," in violation of his Sixth Amendment right to a trial by jury, the Fourteenth Amendment presumption of innocence, and the prohibition on double jeopardy. Alternatively, he argues that, even if the trial court's findings did not rise to the level of a constitutional violation, the court nonetheless abused its discretion by not considering factors in mitigation. The People respond that Lewis forfeited the arguments by failing to raise them below, but that regardless, the aggravating factors upon which the trial court relied were not improper, and it did not abuse its discretion by imposing the upper terms for voluntary manslaughter and the firearm enhancement. We agree with the People.
Lewis admits that, under current law, the prescribed determinate sentence high term is the statutory maximum for purposes of Apprendi v. New Jersey (2000) 530 U.S. 466, and that the court may consider facts outside of the trial record that were not found by a jury.
"[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott (1994) 9 Cal.4th 331, 356.) This includes claims that the trial court failed to consider mitigating factors. (People v. Kelley (1997) 52 Cal.App.4th 568, 582.) Lewis failed to object to the trial court's selection of the upper term of imprisonment on the specific ground that the trial court made findings contrary to the jury's verdict, and has thus forfeited the contention. (People v. Scott, supra, 9 Cal.4th at pp. 352-353.) Regardless, the contention lacks merit.
A trial court's exercise of its discretion in selecting a lower, middle, or upper term sentence under section 1170 is reviewed for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) "[A] trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant," and is "'reasonably related to the decision being made.' [Citation.]" (Id. at p. 848.) A single factor may be determinative in the sentencing decision. (People v. Black (2007) 41 Cal.4th 799, 812.)
In People v. Towne (2008) 44 Cal.4th 63 (Towne), our Supreme Court held that a trial court has "broad discretion to consider relevant evidence at sentencing." (Id. at p. 85.) "Nothing in the applicable statute or rules suggests that a trial court must ignore evidence related to the offense of which the defendant was convicted, merely because that evidence did not convince a jury that the defendant was guilty beyond a reasonable doubt of related offenses." (Id. at pp. 85-86.) Towne further held that the Sixth Amendment right to a jury trial is not offended when a judge considers conduct underlying acquitted charges. (Id. at p. 86.) "[A]n acquittal merely establishes the existence of a reasonable doubt as to guilt. Unless specific findings are made, 'the jury cannot be said to have "necessarily rejected" any facts when it returns a general verdict. . . .' [Citation.]" (Ibid.) "'Judicial factfinding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial, and reasonable-doubt components of the Fifth and Sixth Amendments.' [Citation]." (Ibid.)
Lewis urges us not to follow Towne, which he claims was decided on the basis of the defendant's extensive criminal history, a factor he alleges is not present in this case. He also argues that the Towne court did not need to decide whether the trial court could consider conduct underlying acquitted charges, and its discussion thereof was dicta.
We are bound to follow Towne where it is applicable. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [appellate court is bound to follow holdings of the Supreme Court].) In this case, however, the facts the trial court relied upon did not contravene the jury's findings or verdicts or otherwise rely on conduct underlying acquitted charges. The jury's manslaughter verdict encompassed either the finding that Lewis (a) actually believed that he or Roberts was in imminent danger of being killed or suffering great bodily injury and that the immediate use of deadly force was necessary to defend against the danger, but at least one of those beliefs was unreasonable (CALCRIM No. 571 [Imperfect Self-Defense]); or (b) was provoked, and acted rashly and under the influence of intense emotion that obscured his reasoning or judgment as a result of that provocation, and the provocation would have caused a person of average disposition to act rashly and without due deliberation (CALCRIM No. 570 [Provocation/Heat of Passion]). The jury also found that Lewis personally discharged a firearm, causing Brown's death.
None of those findings was contrary to the trial court's stated factors in aggravation—that Brown was unarmed when Lewis shot him; that Lewis was callous regarding Brown's death; or that Lewis's actions caused Brown's death. At trial, it was uncontested that Brown was unarmed when he was killed. Neither the defense of provocation nor imperfect self-defense required the jury to make a finding regarding Lewis's callousness to Brown's death—it had only to determine that he was adequately provoked or had acted in the unreasonable belief that he or Roberts would suffer great bodily injury or death if he did not act. With respect to Lewis's actions causing Brown's death, it was undisputed that he chose to carry a loaded gun and exited the light rail outside of Grape Street territory. Moton stated to police that Lewis had issued gang challenges to "everyone" on the platform, and specifically to Brown. Although the jury was instructed that "[i]mperfect self-defense does not apply when the defendant, through his own wrongful conduct, has created circumstances that justify his adversary's use of force[,]" it was not required to find that Lewis did not issue gang challenges. Even assuming that it found Lewis acted in imperfect self-defense, the jury could still reach the conclusion that Lewis "banged on" Brown, but that his actions weren't sufficient to justify Brown in punching him. The trial court could find that Lewis's actions "caused" the shooting that followed, even if a reasonable person would not react as Brown did, without contravening the jury's manslaughter verdict. Consideration of these factors neither contravened the jury's verdict nor otherwise impinged on Lewis's constitutional rights.
Lewis argues that the trial court's pronouncement at sentencing showed that it agreed with three of the aggravating factors listed in the prosecution's sentencing memorandum, specifically: "(1) The crime involved great violence and callousness in that Brown was shot dead and appellant expressed no remorse in the subsequent telephone call; [¶] (2) The victim was particularly vulnerable in that Brown was unarmed; [¶] (3) The the [sic] manner in which the crime was carried out indicated planning and sophistication in that appellant and Roberts 'sought to provoke gang members on the train' and that when 'individuals' at the station responded to appellant and Robert's 'challenges,' appellant 'kicked off the safety' of his weapon." In fact, the trial court did not expressly adopt the reasoning in the People's sentencing memorandum, but stated to the contrary that, although the court generally agreed with the People, "[the court] may not agree 100 percent with what the People said." Lewis also reasons that because it did not state otherwise the trial court "apparently agreed" with defense counsel's argument that "appellant had not been convicted of anything in relation to the other gang-shooting and 'had no previous violent conduct on his record.'" We disagree. The trial court clearly stated the factors upon which it relied in pronouncing sentence. We evaluate the propriety of the sentence based upon the factors the court itself articulated.
Alternatively, Lewis complains that, even if the trial court's imposition of the high terms did not rise to the level of a constitutional violation, the trial court abused its discretion by not considering mitigating factors, including that "(1) The victim was an initiator of, willing participant in the crime; [¶] (2) The crime was committed because of an unusual circumstances [sic], such as great provocation; [¶] (3) The defendant has no prior record, or has an insignificant record of criminal conduct, considering the recency [sic] and frequency of prior crimes; [and] [¶] (4) The defendant's prior performance on probation, mandatory supervision, post-release community supervision, or parole was satisfactory."
In light of Lewis's argument in the opening brief that the court "apparently agreed" with the third mitigating factor enumerated in his sentencing memorandum, it is perplexing that he argues the trial court did not consider this proposed mitigating factor.
"Absent an explicit statement by the trial court to the contrary, it is presumed the court properly exercised its legal duty to consider all possible mitigating and aggravating factors in determining the appropriate sentence." (People v. Oberreuter (1988) 204 Cal.App.3d 884, 888, disapproved on another ground in People v. Walker (1991) 54 Cal.3d 1013, 1022-1023.) Here, the record does not affirmatively show the court ignored any relevant mitigating factors. To the contrary, the trial court stated that it had reviewed the defense's sentencing memorandum, which listed all of these specific factors, before pronouncing sentence. The court acknowledged the existence of mitigating factors, stating that "the factors in aggravation greatly outweigh the factors in mitigation." It was not required to give specific reasons for rejecting mitigating factors. (People v. Jones (1985) 164 Cal.App.3d 1173, 1181 [trial court required to consider aggravating and mitigating factors prior to sentencing, but not required to set forth reasons for rejecting mitigating factors].) The trial court did not abuse its discretion.
DISPOSITION
We affirm the trial court's judgment.
MOOR, J.
We concur:
BAKER, Acting P. J.
KIM, J.