Filed 2/18/14 P. v. Barnett CA4/1
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COURT OF APPEAL, FOURH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D062870
Plaintiff and Respondent,
v. (Super. Ct. No. SCN303686)
PATRICK BARNETT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Kimberlee A. Lagotta, Judge. Judgment affirmed.
Jessica C. Butterick, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kathryn
Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
Patrick Barnett pleaded guilty to one count of gross vehicular manslaughter while
intoxicated with the parties agreeing to a "lid" of six years in prison. He contends the
matter must be remanded for resentencing because the trial court violated his due process
rights by relying on unverified facts from the prosecutor's sentencing brief. He also
asserts that the trial court abused its discretion in imposing the maximum possible
sentence under the plea agreement because it relied on improper aggravating factors to
support that choice. We reject his contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On a rainy day in March 2012, Barnett, a United States Marine Corps Corporal,
drove his car while intoxicated. The car crashed into a palm tree, killing his passenger
Thoai Khiem Dinh. Barnett claimed that his car spun after it hit a puddle and began to
hydroplane. A taxi driver that observed the car shortly before the crash told authorities
that the driver appeared to be braking and accelerating simultaneously, causing the car to
spin and drift on the wet pavement.
At the sentencing hearing, the victim's family stated they held nothing against
Barnett and asked the court to be lenient. Defense counsel requested that the court find
unusual circumstances and grant probation. The prosecution requested the low term of
four years or the midterm of six years. The probation report recommended the middle
term "as the factors appear balanced." Barnett was presumptively ineligible for probation
and the trial court found the matter was not an unusual case in which probation may be
granted. After weighing the aggravating and mitigating circumstances, the court found
that the aggravating circumstances outweighed the mitigating circumstances "enough so
that the court chooses not to deviate from the middle term [of six years] in this case."
Barnett timely appealed.
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DISCUSSION
Barnett contends the court violated his due process rights by relying on the
prosecutor's sentencing brief which contained assertions of fact that were not supported
by any sworn statements or official reports. He also argues that the trial court abused its
discretion by relying on improper aggravating factors. Barnett concedes that defense
counsel did not raise these issues below, but argues his contentions are not forfeited
because his defense counsel lacked notice of the objectionable material and a meaningful
opportunity to object. Even assuming these issues were forfeited, he claims we should
exercise our discretion to consider the claims to forestall a future habeas corpus petition.
The Attorney General asserts: (1) Barnett's appeal should be dismissed because he
stipulated to a maximum sentence of six years and waived his right to appeal any
stipulated sentence as part of his plea; (2) defense counsel had notice of the issue and
forfeited any error by not objecting below; (3) the prosecutor's sentencing brief did not
violate due process; (4) even assuming the trial court abused its discretion by considering
unverified statements in the prosecutor's sentencing brief, Barnett failed to show
prejudice; and (5) the court properly exercised its sentencing discretion.
The selection of a sentence rests with the discretion of the trial court. (Pen. Code,
§ 1170, subd. (b).) The court may consider circumstances in aggravation or mitigation
and any other factor reasonably related to the sentencing decision. (Cal. Rules of Court,
rule 4.420(b).) (Undesignated statutory references are to the Penal Code and all rule
references are to the California Rules of Court.) Statements in aggravation and
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mitigation must be filed and served at least four days before the time set for sentencing.
(§ 1170, subd. (b); rule 4.437(a).)
Sentencing judges have virtually unlimited discretion as to the kind of information
they can consider and the source whence it comes. (People v. Hove (1999) 76
Cal.App.4th 1266, 1275.) They may consider responsible unsworn or out-of-court
statements concerning the convicted person's life and characteristics and may receive
evidence that might otherwise not be admissible at trial. (People v. Roberts (2011) 195
Cal.App.4th 1106, 1128.) "Fundamental fairness, however, requires that there be a
substantial basis for believing the information is reliable." (People v. Lamb (1999) 76
Cal.App.4th 664, 683.)
As a preliminary matter, we reject the Attorney General's assertion that this appeal
must be dismissed because Barnett waived his right to appeal any stipulated sentence as
part of his plea. The record reflects that the parties agreed to a sentencing "lid" of six
years. Where, as here, parties agreed to a maximum sentence, they leave unresolved the
appropriate sentence within the maximum and preserve the right to urge the exercise of
discretion in favor of a shorter term. (People v. Cuevas (2008) 44 Cal.4th 374, 376;
People v. Buttram (2003) 30 Cal.4th 773, 785.) We conclude, however, that Barnett
forfeited his arguments by failing to object below. Even assuming the issues were not
forfeited, we reject his contentions on their merits.
The proof of service for the prosecutor's sentencing brief shows it was served the
day before the hearing. Although the brief was not served the required four days before
the hearing, defense counsel did not object to it on this basis, nor did counsel object to the
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prosecutor's arguments at the hearing which summarized the factual information
contained in his sentencing brief, such as Barnett's training from the Marines regarding
the dangers of drunk driving, Barnett being warned before the accident about his need to
have a designated driver, and Barnett's past citations for excessive speed.
Defense counsel had notice and opportunity to object to the alleged unreliable
factual statements contained in the prosecutor's sentencing brief, but failed to do so.
The failure to object forfeited the alleged error. (See People v. Scott (1994) 9 Cal.4th
331, 348, 353.) We reject Barnett's contention that defense counsel lacked a meaningful
opportunity to object because the court failed to issue a tentative ruling. Defense counsel
could have voiced an objection after the prosecutor argued and at any time during the
trial court's recitation of the aggravating factors. Even assuming the issue was not
forfeited, the sentencing brief and oral argument suggest the prosecutor obtained the
information presented to the court from a police report that contained Barnett's own
statements, statements from members of Barnett's company, and a statement from a
Marine corporal that spoke to Barnett in a bar before the accident. Thus, we reject
Barnett's claim that the factors listed in the prosecutor's sentencing brief were so
unreliable as to violate his right to due process.
We also reject Barnett's assertion that this matter must be remanded for
resentencing because the trial court improperly used the elements of the crime as
aggravating factors and all other aggravating factors cited by the trial court were
improper. First, Barnett forfeited this claim by failing to raise it below. (People v. Scott,
supra, 9 Cal.4th at pp. 351-353; see also People v. Ortiz (2012) 208 Cal.App.4th 1354,
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1371 [defendant "must object at the time of sentencing if the trial court . . . double-counts
a particular sentencing factor"].) In any event, we observe that the claim would likely fail
on its merits.
The court's sentencing decision is reviewed for an abuse of discretion. (People v.
Sandoval (2007) 41 Cal.4th 825, 847.) A single factor in aggravation is sufficient to
justify a sentencing choice. (People v. Brown (2000) 83 Cal.App.4th 1037, 1043.) The
court need not weigh aggravating and mitigating factors, nor state a reason for rejecting a
mitigating factor. (People v. Sandoval, at p. 847.) When a trial court gives both proper
and improper reasons for a sentence choice, we will set aside the sentence only if it is
reasonably probable that the trial court would have chosen a lesser sentence had it known
that some of its reasons were improper. (People v. Price (1991) 1 Cal.4th 324, 492.)
Here, the trial court found Barnett presumptively ineligible for probation and
Barnett does not contend the trial court abused its discretion when it found no unusual
circumstances warranted the grant of probation. (People v. Stuart (2007) 156
Cal.App.4th 165, 178 [finding that a case may or may not be unusual is reviewed for an
abuse of discretion].) Given the parties agreement that the maximum sentence the court
could impose was the middle term, the court's only sentencing options were the low or
middle terms for four or six years. (§ 191.5, subds. (a), (c)(1).)
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First, as addressed above, the aggravating factors contained in the prosecutor's
sentencing brief, and recited by the trial court, were not unreliable as the record suggests
the prosecutor obtained the information from a police report. Defense counsel's failure to
object and argument at the sentencing hearing suggest he had access to the same
information and did not consider the information unreliable. Moreover, the probation
report stated that a third party witness observed Barnett intentionally spinning his car
before the accident. The trial court noted this and impliedly found this fact exceeded the
minimum necessary to establish the elements of the crime. (See People v. Castorena
(1996) 51 Cal.App.4th 558, 562-563 [particularly egregious drunk driving can support
aggravated term for gross vehicular manslaughter].) Thus, it is not reasonably probable
the court would have chosen a lesser sentence absent the aggravating factors listed in the
prosecutor's sentencing brief.
DISPOSITION
The judgment is affirmed.
McINTYRE, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.
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People v. Barnett CA4/1
Combined Opinion