People v. Edwards

Opinion

TIMLIN, J.

Pursuant to a plea agreement with the People, defendant pled guilty to a charge of assault with a firearm (Pen. Code, § 245, subd. (a)(2))

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and admitted the truth of the allegation of firearm use. (§ 12022.5, subd. (a), § 1192.7, subd. (c)(8).) The court sentenced defendant to a four-year aggravated term for the assault with a firearm, and a consecutive five-year enhancement for the personal use of a firearm. Defendant contends that the trial court erred by considering improper factors in aggravation in selecting the upper term on the firearm use enhancement. Although we agree that the trial court did consider improper factors in sentencing defendant on the enhancement, we affirm because we conclude that it is not reasonably probable that a result more favorable to the defendant would have been reached in the absence of this error.

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Factual and Procedural Background

On January 22, 1992, defendant shot 14-year-old Miesha Lindsey, his girlfriend and the mother of his 10-month-old child. Lindsey was admitted to the hospital in critical condition, the bullet having entered her right breast and continued in a downward trajectory through the right lung, nicking the liver and spine. While still at the hospital, Lindsey told an investigating officer that the incident happened during an argument that occurred when she saw defendant kissing another female. Lindsey later said that there had

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been no argument. At the time of this incident, defendant was on probation as a result of his conviction for having battered Lindsey.

At the sentencing hearing, the court initially noted that there were no mitigating factors and indicated that it had chosen to impose the upper term of four years with respect to the assault with a firearm offense because of a number of factors: first, because defendant had inflicted great bodily injury upon the victim and, second, because the victim was particularly vulnerable because of her age and relationship with the defendant.

The court stated its reasons for selecting the aggravated term of five years for the use of a firearm as follows: “The Court chooses the upper term of five years because at the point in time when you committed this offense you were on probation and indeed your history of criminal activity is of increasing seriousness. [1] The probation which you were on at the time that this offense was committed was directly related to an offense against this victim and was obviously unsuccessful in achieving your rehabilitation.”