Filed 7/9/21 P. v. Beck CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E073170
v. (Super.Ct.No. BAF1800617)
SCOTT EDWARD BECK, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Steven G. Counelis,
Judge. Dismissed.
Law Office of Marend M. Garrett and Marend M. Garret for Defendant and
Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,
Eric Swenson and Michael D. Butera, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant and appellant Scott Edward Beck appeals from an order of the
Riverside County Superior Court sentencing him to the upper term of 66 months in prison
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after a jury convicted him of attempted voluntary manslaughter. Defendant’s sole
argument on appeal is he should have been sentenced to a lesser term because the court
erred when it found he induced family members to participate in the commission of the
crime. We find the issue forfeited and dismiss the appeal.
BACKGROUND
In May 2018 defendant’s household included his wife as well as his adult
stepdaughter and two stepsons. He and his wife sold methamphetamine. One of their
customers was the victim, who over the course of his relationship with the family,
became involved with defendant’s stepdaughter against the wishes of defendant and his
wife. They told the victim not to come to their home anymore, but he would nevertheless
sneak into the house and spend the night with the stepdaughter several times a week.
In the wee hours of a morning in May 2018, defendant noticed the surveillance
camera monitoring a side door access into the stepdaughter’s room had been disabled.
Assuming the victim was in the house, defendant alerted his wife and stepson and, armed
with a .22-caliber long rifle, entered the stepdaughter’s bedroom demanding to know who
was there. His wife also came into the bedroom, pulled back the comforter to expose the
victim hiding under the covers wearing only his underwear. Defendant and his wife
yelled at the victim, who knelt on the bed. The victim explained he loved the
stepdaughter and asked defendant to let him go or to call the police. Defendant pointed
the gun at the victim, but the stepdaughter stepped in front of him. When the
stepdaughter got out of the way, defendant jammed the barrel of the gun into the victim’s
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head, causing him to bleed “pretty bad.” Defendant’s wife told defendant to shoot the
victim, and he did, hitting the victim on the top of his head.
The victim suffered a brain hemorrhage and a stroke as a result of his injuries,
which required surgical intervention. He was left with bullet fragments in his brain that
were not able to be removed, severe scarring, and enduring problems with headaches,
memory loss, stuttering, and social anxiety.
Defendant was arrested and charged with attempted murder with an enhancement
for intentional discharge of a firearm causing great bodily injury in violation of Penal
Code sections 664, 187, subdivision (a), and 12022.53, subdivisions (d) and (g),
respectively.1
At trial, defendant admitted arming himself with the rifle but said he intended only
to confront and scare the victim and hold him until the police arrived. According to
defendant, the victim caused the firearm to discharge when he knocked into it when he
tried to hit defendant’s wife. The court found that testimony not credible.
A jury did not find defendant guilty of attempted murder but convicted him of the
lesser included offense of attempted voluntary manslaughter. (§§ 664, 192, subd. (a).)
The trial court sentenced defendant to a state prison term of 66 months. Defendant
appealed.
1 All statutory references are to the Penal Code and rule references are to the
California Rules of Court.
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DISCUSSION
On appeal, defendant challenges the imposition of the high term of five and one-
half years for voluntary manslaughter rather than the three and one-half years
recommended by the probation officer. He argues the court chose the high term based
upon the finding he induced his family to participate in the crime, a finding he claims
cannot possibly be supported by the evidence because the crime the jury convicted him of
was one involving a killing resulting from a sudden quarrel or is committed in the heat of
passion.
The People argue defendant forfeited his right to challenge the trial court’s
reasoning for imposition of the upper term by failing to object. We agree.
In cases like the present one in which a trial court must impose punishment in a
case coming within the determinate sentencing provisions (§ 1170 et seq.), it is generally
afforded broad discretion to tailor the sentence to the particular circumstances presented.
(People v. Scott (1994) 9 Cal.4th 331, 349.) The discretion includes whether to impose
the lower or upper term rather than middle term of imprisonment prescribed by statute.
(Id. at pp. 349-350; § 1170, subd. (b).) The court is required to articulate on the record at
the time of sentencing the reasons for its choice of punishment such as circumstances in
aggravation or mitigation. (§ 1170, subds. (b), (c); Rules 4.421, 4.423.)
A party who was given an adequate and meaningful opportunity to seek
clarifications or changes in the sentence or otherwise object to the trial court’s sentencing
choices or the reasons it articulates in support of them forfeits the right to challenge the
sentence on appeal. (People v. Gonzalez (2003) 31 Cal.4th 745, 752.)
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Here, the probation department recommended defendant receive the middle term
of three years. The People’s sentencing brief called for imposition of the upper term of
66 months and included the fact defendant involved his wife and stepson in trying to
catch the victim as factors in aggravation. In his sentencing memorandum, defendant
argued he should receive the lower term of 18 months because he was defending his
family when he injured the victim, he learned his lesson, he did not have a criminal
history, and he was not in good health.
At the hearing, the People argued first and reiterated defendant’s involvement of
his family as one of the reasons the court should select the upper term. When he argued,
defendant made no mention of the People’s argument. His argument instead focused
solely on his theory that the victim provoked the situation that led to a terrible accident
and how his incarceration up until that point had already caused severe economic
hardship for him and his disabled wife.
At the close of arguments, the court found the case presented five of the
aggravating factors relating to the crime set forth in rule 4.421(a). One of those factors
was, “[t]he defendant induced others to participate in the commission of the crime or
occupied a position of leadership or dominance of other participants in its commission.”
(Rule 4.421(a)(4).) In support of that finding, the court noted defendant directed family
members to find and locate the victim on the property, including the participation of
defendant’s wife who encouraged defendant to shoot the victim. After identifying all the
aggravating and mitigating factors it was considering, and stating they would form the
bases of its determination of the appropriate term, the court inquired of the parties if there
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was any reason judgment should not then be pronounced. Defendant’s counsel said,
“No.” Thereafter, the court imposed the upper term of 66 months and engaged counsel in
a discussion of how credits were to be calculated.
It is clear from the foregoing that defendant had ample time to object to
consideration of the rule 4.421(a)(4) inducement/leadership factor. The People had
raised it in their brief filed and served in advance of the hearing. They raised the factor
again at the hearing. Even so, defendant did not address that subject in his argument.
And, when the court invited the parties to address the factors it identified as under
consideration—including the inducement of others—before announcing the sentence,
defendant declined. After it announced the sentence, the court engaged counsel in
discussion on matters relating to the sentencing, during which time defendant could have
raised the issue. Accordingly, we find defendant has forfeited his right to challenge the
court’s finding he induced his family members to participate in the commission of the
crime.
Even if the issue was not forfeited, defendant would not prevail. His sole
argument on appeal is he should have been sentenced to a lesser term because the
evidence is insufficient to support the finding he induced family members to participate
in commission the attempted killing of the victim. The insufficiency of the evidence
claim is bottomed on the proposition the finding is necessarily erroneous because it is
impossible to reconcile it with the jury’s conclusion that he had attempted to kill the
victim “because of a sudden quarrel or in the heat of passion.” The claim lacks factual
and legal support.
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Contrary to defendant’s suggestion, a sudden quarrel or heat of passion is not
necessarily a momentary event. Rather, a person’s heat of passion may persist until
enough time passes for the passions to cool off and for judgment to be restored. (People
v. Millbrook (2014) 222 Cal.App.4th 1122, 1139.) The record reveals that, when
defendant concluded the victim was likely in the home, his passions were incited. Upset
and angry, he alerted his wife and stepson and enlisted their assistance and grabbed his
rifle. He also unlocked the sliding glass door into the stepdaughter’s room to permit the
stepson’s entry after the victim was located. Thereafter, he hit victim with the rifle and
shot him.
Moreover, if the court had erred in finding defendant induced family members to
participate in the commission of the crime, the error was harmless because the court
found other factors in aggravation that support its sentencing choice. The factors relating
to the crime were: (i) it involved great violence and great bodily harm such that it is not
clear the victim will ever recuperate from the physical injuries or from the significant
changes in his personality and his personhood resulting from the attack; (ii) defendant
was armed and used a weapon in the commission of the crime; and (iii) the victim was
particularly vulnerable as he was not armed and was kneeling on the bed wearing only his
underwear (or was “close to being in his underwear”) when defendant shot him. (Rule
4.421(a)(1)-(3).) The court also found defendant engaged in violent conduct that
indicates a serious danger to society, an aggravating factor set forth in rule 4.421(b)(1).
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DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
RAPHAEL
J.
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