People v. Duran

California Court of Appeal Mar 30, 1982 No. Crim. 5498Published

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Holding. The court held that while a trial court may not rely on the element of great bodily harm to aggravate a sentence for manslaughter, it may rely on acts of cruelty, viciousness, or callousness that transcend the harm itself. Because the record contained other valid aggravating factors, the court affirmed the sentence despite the trial court's ambiguous reasoning.

Issues

Whether a trial court may rely on 'great bodily harm' as an aggravating factor for a voluntary manslaughter conviction.
Whether California Rules of Court, rule 421(a)(1) requires the presence of great bodily harm to support a finding of cruelty, viciousness, or callousness.
Whether a remand is required when a trial court's sentencing reasoning is ambiguous but the record contains other substantial aggravating factors.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The rule cites as an aggravating factor that “The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness or callousness”

“The use of the disjunctive “or” makes clear that the rule may be satisfied by cruel, vicious or callous acts other than those involving great violence, great bodily harm, or threat of great bodily harm.”

“a remand would be of no benefit to appellant because of the abundance of other valid, substantial aggravating factors.”

Opinion

THE COURT.

Appellant was convicted on his plea of nolo contendere of voluntary manslaughter (Pen. Code, § 192, subd. 1). The trial court sentenced him to prison for the six-year upper base term, stating these reasons: “Crime involved great violence, great bodily harm, or other acts disclosing a high degree of cruelty, callousness or visciousness

[sic],

whether or not charged or chargeable as an enhancement under Section 12022.7. The Defendant was armed with or used a weapon at the time of the commission of the crime, whether or not charged or chargeable as an enhancement under Section 12022 or 12022.5. The Defendant has engaged in a pattern of violent conduct which indicates a serious danger to society. Defendant’s prior convictions as an adult or adjudications of commissions of crimes as a juvenile are numerous or of increasing seriousness. The Defendant was on parole when he committed the crime. The Defendant’s prior performance on parole was unsatisfactory. [¶] I don’t find anything in mitigation. So that’s why I had to set the high term.”

[990]

Appellant contends the trial court improperly relied on great bodily harm as an aggravating factor, reasoning that great bodily harm (i.e., death) is an element of the crime of manslaughter and therefore unavailable for aggravation purposes (Cal. Rules of Court, rule 441(d)).

Respondent concedes the trial court was precluded from relying on great bodily harm

as such.

However, respondent counters, rule 421(a)(1), applies, where, as here, the record shows a “high degree of cruelty, viciousness, or callousness” apart from the infliction of great bodily harm.

Appellant disputes this proposition. According to appellant: “This interpretation, repeated in this case, conflicts with the plain meaning of the rule’s language which specifically requires the infliction of great violence or great bodily injury disclosing a high degree of cruelty, viciousness, or callousness....

People v. Duran

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THE COURT.

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