People v. Epstein CA3

Filed 6/6/16 P. v. Epstein CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, C079456

Plaintiff and Respondent, (Super. Ct. No. CM041867)

v.

JOSHUA MICHAEL EPSTEIN,

Defendant and Appellant.

Following his no contest plea to voluntary manslaughter (Pen. Code, § 192, subd. (a)),1 the trial court sentenced defendant Joshua Michael Epstein to prison for the upper term of 11 years. On appeal, defendant contends the trial court abused its discretion in selecting the upper term. We disagree and shall affirm.

1 Undesignated statutory references are to the Penal Code.

1

FACTUAL AND PROCEDURAL BACKGROUND In August 2014 a verbal altercation between defendant and Randall Sexton occurred inside a 7-Eleven store. After defendant and Sexton left the store, the altercation continued in the parking lot. Defendant and Sexton stood face to face and shoved each other. When defendant’s girlfriend, Stephanie Vogel, attempted to intervene, Sexton repeatedly slapped Vogel in the face. Vogel responded by striking Sexton in the upper body with a skateboard. Defendant then stabbed Sexton in the chest with a knife. While Sexton was on the ground, Vogel hit him with a skateboard several more times. Sexton was transported by ambulance to a hospital where he was pronounced dead about an hour later. The attending physician determined that the stab wound inflicted by defendant punctured a critical area of Sexton’s heart, causing him to bleed internally. An autopsy confirmed that Sexton died from a stab wound to the chest. In September 2014 a complaint was filed charging defendant with murder. (§ 187, subd. (a).) It was further alleged that defendant had used a deadly weapon in the commission of the crime. (§ 12022, subd. (b)(1).) In December 2014 the trial court found defendant incompetent to stand trial, and ordered that he be delivered to Napa State Hospital for treatment. In February 2015 the Napa State Hospital determined that defendant was competent to stand trial. In March 2015 the trial court found defendant competent to stand trial. Following his no contest plea to voluntary manslaughter (§ 192, subd. (a)), the trial court sentenced defendant to the upper term of 11 years in prison. In doing so, the court found that the circumstances in aggravation outweighed the circumstances in mitigation. Defendant filed a timely notice of appeal.