People v. Duff CA3

Filed 9/29/16 P. v. Duff CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta) ----

THE PEOPLE,

Plaintiff and Respondent, C080617

v. (Super. Ct. No. 14F6671)

JASON LEE DUFF,

Defendant and Appellant.

Defendant Jason Lee Duff pleaded guilty to voluntary manslaughter. (Pen. Code, § 192, subd. (a).)1 The trial court sentenced him to the upper term of 11 years in state prison and imposed various fines and fees. Defendant now contends the trial court abused its discretion in imposing the upper term by relying on improper aggravating factors and ignoring mitigating factors. Anticipating the possibility of forfeiture because trial counsel failed to object to the sentence in the trial court, defendant alternatively claims the failure to object constituted ineffective assistance of counsel.

1 Undesignated statutory references are to the Penal Code.

1

We conclude defendant’s challenge to the sentence is forfeited and he has not established ineffective assistance. We will affirm the judgment. BACKGROUND The facts are taken from the preliminary hearing, which formed the factual basis for defendant’s plea. Meghan Eades and defendant were hosting a party in their home on October 24, 2014. Cody Radford was drinking heavily at the party and was so drunk he had a hard time standing. Meghan told Cody to leave the party because he was causing disturbances. Party attendee Zack Lacy subsequently found Cody on the ground in the driveway and got him to stand up. Cody started walking back toward the house but Meghan yelled at him and shoved him, causing Cody to fall to the ground. Defendant suddenly put Cody in some type of chokehold and repeatedly punched him in the head. Cody was too intoxicated to fight back. Meghan screamed for defendant to stop when it became clear that Cody was unconscious. Zack grabbed defendant and told him to stop, but defendant kicked Cody in the head. Zack told defendant to leave and defendant walked away. Zack was training to be an emergency medical technician and began tending to Cody. He saw that Cody’s eyes were starting to swell and he was blowing blood bubbles from his mouth. Zack stayed with Cody until the ambulance arrived, but Cody died at the hospital. He had a bruised forehead, swollen nose, blood leaking from his ears, blackened eyes, a puncture wound on his knee, and a shoe imprint on his torso. A doctor determined that Cody died from brain swelling caused by blunt force trauma to the head. The People charged defendant with murder (§ 187, subd. (a)) but subsequently amended the information to include voluntary manslaughter (§ 192, subd. (a)). Defendant pleaded guilty to voluntary manslaughter and the trial court dismissed the remaining count on the People’s motion. At sentencing, the trial court considered various aggravating and mitigating factors. In mitigation, the trial court found defendant to be “a person of some industry”