Filed 7/9/14 P. v. Echevarria CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,

         Plaintiff and Respondent,                                                    F067604

                   v.                                                    (Super. Ct. No. 13CM8585)

JOSEPH LOUIS ECHEVARRIA,                                                          OPINION

         Defendant and Appellant.



                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Kings County. Donna L.
Tarter, Judge.
         Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Doris
A. Calandra, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

        Before Gomes, Acting P.J., Detjen, J., and Franson, J.
       Defendant Joseph Echevarria was convicted by guilty plea of solicitation to
commit murder (Pen. Code, § 653f, subd. (b)).1 He admitted allegations that he had
suffered a prior serious or violent felony conviction within the meaning of the Three
Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had suffered a prior
serious felony conviction (§ 667, subd. (a)(1)). The trial court sentenced him to a total of
23 years in prison: the upper term of nine years, doubled pursuant to section 667,
subdivision (e), plus a consecutive five-year serious felony enhancement (§ 667,
subd. (a)(1)). On appeal, defendant contends the trial court abused its discretion in
imposing the upper term. We affirm.
                                         FACTS2
       Defendant’s girlfriend was having money troubles and thought she might be
evicted from her apartment soon. She told Joel Wood that defendant would be calling
him about a top secret matter. A few days later, defendant, who was incarcerated at
Avenal State Prison, called Wood and asked if he would help him “take care of” the
landlord. He also said “exterminate” or “eliminate.” Wood made it clear to defendant he
was not willing to help.
       Wood then contacted the Federal Bureau of Investigation and agreed to assist in
their investigation. Wood told defendant’s girlfriend he would introduce them to a friend
who would be willing to help. The friend was in fact an undercover agent. When
defendant contacted the agent, he told him he wanted the landlord to “become a ghost”
and “to disappear without a trace” for $400. Defendant provided the landlord’s name,
address, height, vehicle license plate number, and vehicle description.



1      All statutory references are to the Penal Code unless otherwise noted.
2      The facts are taken from the probation officer’s report.


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      In considering defendant’s sentence, the trial court stated:

              “In this case [defendant] solicited an individual to kill his
      girlfriend’s landlord because she was delinquent on her rent and was being
      evicted. [¶] [Defendant] contacted an individual named Joel Wood and
      Mr. Wood declined the invitation to commit murder for hire. Mr. Wood
      then contacted the FBI who in turn was introduced to [defendant] and
      [defendant] … arranged with this FBI agent to kill the landlord for $400.
      [¶] … [¶]

              “As far as the circumstances in aggravation, the Court does not
      consider the fact that [defendant] solicited another to commit murder as a
      circumstance in aggravation, and that is an element of the crime[;] the
      Court also does not consider the fact that [defendant] was … serving a prior
      term for murder in that he has already admitted to that and is suffering the
      consequences for that as well. [¶] However, the Court does consider a
      circumstance in aggravation that is a significant circumstance and that is
      [defendant] appears to be a very pleasant man, and yet this crime that he
      committed is such a—it’s such a trivial matter and he took this to extreme
      measures, and that is his girlfriend was being evicted from her apartment
      and he felt that terminating the life of another individual was the
      appropriate response. The Court finds that this circumstance involves a
      high degree of viciousness and callousness, also the Court does find that it
      was a sophisticated crime in that he was able to do this while he was
      serving a life sentence for second degree murder. [¶] The sole
      circumstance in mitigation is his early plea. [Defendant] also does express
      remorse[,] claiming that he has found religion, and [defendant], I don’t take
      that lightly, I think that … is a good thing for you. [¶] … [¶] The Court …
      does place great weight on the circumstance in aggravation in that this was
      again a very callous and vicious offense and the Court is going to impose
      … the aggravated term of nine years doubled by virtue of the admitted
      strike conviction.”
                                     DISCUSSION
      Defendant now claims that the trial court abused its discretion in imposing the
nine-year upper term sentence. We note that defendant forfeited the error by not
objecting at the sentencing hearing. (People v. Scott (1994) 9 Cal.4th 331, 353, 356;
People v. Brown (2000) 83 Cal.App.4th 1037, 1041-1042.) But even on the merits,



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defendant makes no showing that the sentence was arbitrary or capricious. (People v.
Sandoval (2007) 41 Cal.4th 825, 847.)
        Sentencing courts have wide discretion in weighing aggravating and mitigating
factors and may balance them against each other in qualitative as well as quantitative
terms. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) A trial court may base an
upper term sentence upon any aggravating circumstance the court deems significant.
(People v. Sandoval, supra, 41 Cal.4th at p. 848.) Absent a showing that the sentence is
irrational or arbitrary, it is presumed that the trial court acted to achieve legitimate
sentencing objectives. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831-
832.)
        Aggravating factors are factors that make a crime “distinctively worse than the
ordinary.” (People v. Moreno (1982) 128 Cal.App.3d 103, 110.) Accordingly, facts that
are more egregious than whatever is necessary to establish the offense may properly
establish an aggravating factor or factors. (See People v. Miranda (1987) 196
Cal.App.3d 1000, 1003.) “Only a single aggravating factor is required to impose the
upper term.” (People v. Osband (1996) 13 Cal.4th 622, 728.)
        Defendant “submits there was nothing particularly callous about what he did
beyond the crime of solicitation of murder itself. By definition, the solicitation of another
person’s murder is a callous act. There is nothing about this offense that was vicious ….”
He “does not quarrel with the sentencing court’s finding that this crime was committed
for a trivial reason, but that alone cannot justify an upper term.” Defendant’s logic is
unsupportable. If no circumstances could make the crime worse than the ordinary,
because the crime is by definition already as bad as it can get, then no aggravating or
mitigating circumstances would ever need to be considered. But that is obviously not the
case. Soliciting murder to avoid paying rent and being evicted might be considered
worse than, for example, soliciting murder to avenge a heinous crime. The use of murder

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to solve a trivial matter, not even caused by the intended victim, is undeniably vicious
and callous. Furthermore, as the trial court found, the crime was sophisticated in that
defendant was able to arrange for the murder of a civilian, using contraband cell phones
while in prison serving a murder sentence. These aggravating factors amply supported
the trial court’s imposition of the upper term. There was no abuse of discretion.
                                     DISPOSITION
       The judgment is affirmed.




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