PEOPLE v. MENDOZA (1981)

Jaime Garcia Mendoza was convicted in a jury trial of first degree burglary (Pen.Code, §§ 459, 460; count II) and acquitted of attempted robbery (Pen.Code, §§ 211, 664; count I) and felonious assault (Pen.Code, § 245, subd. (a); count III). The jury also failed to find that appellant personally used a dangerous or deadly weapon during the burglary (Pen.Code, § 12022, subd. (b)). He was sentenced to state prison for the upper six year term and appeals contending: “As the trial court relied on the facts of the allegation and charges of which appellant was acquitted in imposing the upper term of six years for this burglary, this matter must be remanded to the trial court for resentencing.”

A brief recitation of the facts will bring appellant's contention into focus. At approximately 6 a. m. on February 23, 1980, Salvador Contreras was sleeping at the residence of Vanessa Mendoza when he was awakened by appellant who had placed a knife to his neck. Appellant demanded money, a struggle ensued, and appellant stabbed Contreras twice in the arm. When Contreras managed to gain possession of the knife, appellant fled. During the melee, Mendoza was awakened, saw the fight, and recognized appellant as her ex-husband's cousin.¹ Appellant had been to the Mendoza residence in the past to visit a Tim Hanifin who had formerly lived there.

Appellant testified that on the subject occasion he had again gone to Vanessa Mendoza's house to visit Hanifin. However, he asserted, after he had been invited in by Contreras, Contreras had first struck him and then attacked him with a knife. Appellant claimed he had taken the knife from Contreras and stabbed him with it in self-defense before fleeing.

In pronouncing judgment, the sentencing court initially said, “I remember the facts vividly. I'm satisfied the jury's finding was correct on this count. I was very surprised on the other counts, where they found him not guilty. [[[¶] However, be that as it may, I've read and considered the probation report, and the most persuasive thing is that this defendant was on parole for a 211 at the time he committed the crime the jury found him guilty of. It appears that, knowing the facts of the case, this was actually a crime of violence․” The court then entertained argument from counsel before the following transpired:

“THE COURT: Well, one of the things that concerns me, this is not just an ordinary entering of a house. The knife that I saw—it looks like a boning knife to me. It was broken off somehow or other, but it did penetrate the arm of the victim. [¶] This is a burglary, armed with a knife. It's not just an ordinary burglary. [¶] Then there is a factor that he didn't learn one iota from his time in the state prison on his robbery. He was paroled. He received the Department of Corrections 6/2/78, paroled 7/14/79, and this case arose February 29, '80. He was out five months—six months, and he goes out into this house with a knife and a ski mask on. [¶] THE DEFENDANT: I didn't go into any house with any knife. [¶] THE COURT: I'm satisfied the ski mask that was being worn was this defendant's, from the evidence I heard. [¶] I'm not known as a heavy sentencer, but you've got to learn by your prior involvement in the Department of Corrections, and apparently it didn't affect you at all. You get yourself right back into what I consider a very serious type of case. Burglaries are burglaries, but a burglary with a knife is worse than a burglary without a knife. You had that knife.”

Appellant's contention is without merit. Preliminarily, we note that California Rules of Court, rule 441, subdivision (a), in pertinent part provides: “A fact considered and used by the sentencing judge in deciding to deny probation … may be used to impose the upper term ․” Only one factor need be articulated to support any given sentence choice. (People v. Covino (1980) 100 Cal.App.3d 660, 670, 161 Cal.Rptr. 155.) Here, the trial court's observation that the present offense had been committed while appellant was on parole, was an appropriate aggravating circumstance. (Cal.Rules of Court, rule 421(b)(4).) By operation of rule 441, subd. (a), and People v. Covino, supra, this single reference was also all the articulation required to support the sentence imposed.

We nevertheless consider the propriety of the court's express reference to appellant's violence and his having been armed with a knife during the commission of the burglary since these factors expressly appear to have been significant in the court's decision to select the upper term. As we shall explain, it was not error for the court to rely upon such facts even though the jury apparently had entertained a reasonable doubt concerning them.

Penal Code section 1170, subdivision (b), in pertinent part, provides: “In determining whether there are circumstances that justify imposition of the upper … term, the court may consider the record in the case ․” Similarly, California Rules of Court, rule 439, subdivision (b), in pertinent part, provides: “Selection of the upper term is justified only if, considering the entire record of the case … circumstances in aggravation are established by a preponderance of the evidence and outweigh circumstances in mitigation ․” Contreras' testimony that he was attacked with a knife during the course of the burglary was, of course, part of the record.

It was held in People v. Fulton (1979) 92 Cal.App.3d 972, 976, 155 Cal.Rptr. 327, that aggravation could be predicated upon facts surrounding an offense to which the jury was unable to arrive at a verdict since testimony thereon was contained in the record. The court also indicated: “We do not here consider a case in which a jury has acquitted on the charge used as an aggravation.” (People v. Fulton, supra, at p. 976, fn. 1, 155 Cal.Rptr. 327.)

A sentencing court sits as trier of fact at the probation and sentencing hearing and, therefore, must have the power to resolve contested facts relevant to the selection of an appropriate and just disposition of the case. (See People v. Peterson (1973) 9 Cal.3d 717, 728, 730, 108 Cal.Rptr. 835, 511 P.2d 1187.) The standard of proving aggravation at such a hearing is “by a preponderance.” (Rule 439, subd. (b), supra2; (People v. Nelson) (1978) 85 Cal.App.3d 99, 101-103, 149 Cal.Rptr. 177; People v. Thomas (1979) 87 Cal.App.3d 1014, 1024, 151 Cal.Rptr. 483; People v. Betterton (1979) 93 Cal.App.3d 406, 411-413, 155 Cal.Rptr. 537; People v. Ramos (1980) 106 Cal.App.3d 591, 605-606, 165 Cal.Rptr. 179.) The court's express reference to violence and appellant's having been armed during the commission of the burglary, demonstrates that while the People had not earlier carried their burden of proving such matters beyond all reasonable doubt, they did so by a preponderance of the evidence.

It has been held with respect to both probation and parole violations that offenses allegedly committed during the terms thereof may serve as grounds for revocation, even though earlier trials on such charges have resulted in the defendant's acquittal. (In re Coughlin (1976) 16 Cal.3d 52, 54, 127 Cal.Rptr. 337, 545 P.2d 249; In re Dunham (1976) 16 Cal.3d 63, 127 Cal.Rptr. 343, 545 P.2d 255.)

In In re Coughlin, supra, 16 Cal.3d at page 54, 127 Cal.Rptr. 337, 545 P.2d 249, our Supreme Court indicated that a rule precluding consideration at a probation revocation hearing of offenses not having been proven beyond a reasonable doubt “would have the unfortunate consequence of depriving the decision-making body of information which might be essential to an appropriate disposition of the matter. Although the offender must be protected from undue harassment, the interest of society in preventing a premature release of the offender from confinement deserves equal, perhaps paramount, attention. Only by examining all the available evidence may the decision-making body exercise the informed discretion which the Legislature has conferred upon it.” (Emphasis in original.)

This rationale has equal application in the initial sentencing context and we hold that an acquittal of certain counts or a failure to find that charged enhancements are true beyond a reasonable doubt does not insulate a defendant from the trial court's finding aggravation based thereon when it determines such facts have been established by a preponderance of the evidence. Consequently, the court did not err here when it referred to the burglary as a “crime of violence” and noted that appellant was “armed with a knife” in explaining its selection of the upper six year term.

The judgment is affirmed.

I concur on the ground there is no necessary inconsistency between (1) acquittal of defendant on the charge of using a deadly and dangerous weapon in violation of Penal Code section 12022(b), and (2) aggravation of his sentence for commission of the burglary armed with a knife. Although defendant was acquitted of using a deadly and dangerous weapon, to wit, a knife, he was neither charged with nor acquitted of being armed with a weapon during the burglary. Hence the sentencing court's reliance on the fact that defendant was armed during the crime, a specific circumstance of aggravation under California Rules of Court, rule 421(a)(2), was not reliance on a circumstance of which defendant had been acquitted. Consequently, I find it unnecessary to consider the hypothetical propriety of a court's use of a circumstance of aggravation earlier rejected by a jury as not proved beyond a reasonable doubt.

FOOTNOTES

1.  Appellant wore a ski mask to conceal his identity but it was removed during the struggle with Contreras.

FN2. The Judicial Council's Advisory Committee Comment to rule 439, in pertinent part, provides: “The legislative intent is that, when imprisonment is the sentence choice, the middle term is to constitute the average or usual term. The rule clarifies this intent by specifying that the presence of circumstances justifying the upper or lower term must be established by a preponderance of the evidence, and that those circumstances must outweigh offsetting circumstances. Proof by a preponderance of the evidence is the standard in the absence of a statute or a decisional law to the contrary (Evid.Code, § 115), and appears appropriate here, since there is no requirement that sentencing decisions be based on the same quantum of proof as is required to establish guilt. See Williams v. New York (1949) 337 U.S. 241 [69 S.Ct. 1079, 93 L.Ed. 1337].” (Emphasis added.).  FN2. The Judicial Council's Advisory Committee Comment to rule 439, in pertinent part, provides: “The legislative intent is that, when imprisonment is the sentence choice, the middle term is to constitute the average or usual term. The rule clarifies this intent by specifying that the presence of circumstances justifying the upper or lower term must be established by a preponderance of the evidence, and that those circumstances must outweigh offsetting circumstances. Proof by a preponderance of the evidence is the standard in the absence of a statute or a decisional law to the contrary (Evid.Code, § 115), and appears appropriate here, since there is no requirement that sentencing decisions be based on the same quantum of proof as is required to establish guilt. See Williams v. New York (1949) 337 U.S. 241 [69 S.Ct. 1079, 93 L.Ed. 1337].” (Emphasis added.)

ROTH, Presiding Justice.

BEACH, J., concurs. FLEMING, Associate Justice, concurring.