Filed 2/18/14 P. v. Barnett CA4/1
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                     COURT OF APPEAL, FOURH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA


THE PEOPLE,                                                         D062870

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN303686)

PATRICK BARNETT,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County,

Kimberlee A. Lagotta, Judge. Judgment affirmed.

         Jessica C. Butterick, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kathryn

Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.

         Patrick Barnett pleaded guilty to one count of gross vehicular manslaughter while

intoxicated with the parties agreeing to a "lid" of six years in prison. He contends the

matter must be remanded for resentencing because the trial court violated his due process
rights by relying on unverified facts from the prosecutor's sentencing brief. He also

asserts that the trial court abused its discretion in imposing the maximum possible

sentence under the plea agreement because it relied on improper aggravating factors to

support that choice. We reject his contentions and affirm the judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

       On a rainy day in March 2012, Barnett, a United States Marine Corps Corporal,

drove his car while intoxicated. The car crashed into a palm tree, killing his passenger

Thoai Khiem Dinh. Barnett claimed that his car spun after it hit a puddle and began to

hydroplane. A taxi driver that observed the car shortly before the crash told authorities

that the driver appeared to be braking and accelerating simultaneously, causing the car to

spin and drift on the wet pavement.

       At the sentencing hearing, the victim's family stated they held nothing against

Barnett and asked the court to be lenient. Defense counsel requested that the court find

unusual circumstances and grant probation. The prosecution requested the low term of

four years or the midterm of six years. The probation report recommended the middle

term "as the factors appear balanced." Barnett was presumptively ineligible for probation

and the trial court found the matter was not an unusual case in which probation may be

granted. After weighing the aggravating and mitigating circumstances, the court found

that the aggravating circumstances outweighed the mitigating circumstances "enough so

that the court chooses not to deviate from the middle term [of six years] in this case."

Barnett timely appealed.




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                                       DISCUSSION

       Barnett contends the court violated his due process rights by relying on the

prosecutor's sentencing brief which contained assertions of fact that were not supported

by any sworn statements or official reports. He also argues that the trial court abused its

discretion by relying on improper aggravating factors. Barnett concedes that defense

counsel did not raise these issues below, but argues his contentions are not forfeited

because his defense counsel lacked notice of the objectionable material and a meaningful

opportunity to object. Even assuming these issues were forfeited, he claims we should

exercise our discretion to consider the claims to forestall a future habeas corpus petition.

       The Attorney General asserts: (1) Barnett's appeal should be dismissed because he

stipulated to a maximum sentence of six years and waived his right to appeal any

stipulated sentence as part of his plea; (2) defense counsel had notice of the issue and

forfeited any error by not objecting below; (3) the prosecutor's sentencing brief did not

violate due process; (4) even assuming the trial court abused its discretion by considering

unverified statements in the prosecutor's sentencing brief, Barnett failed to show

prejudice; and (5) the court properly exercised its sentencing discretion.

       The selection of a sentence rests with the discretion of the trial court. (Pen. Code,

§ 1170, subd. (b).) The court may consider circumstances in aggravation or mitigation

and any other factor reasonably related to the sentencing decision. (Cal. Rules of Court,

rule 4.420(b).) (Undesignated statutory references are to the Penal Code and all rule

references are to the California Rules of Court.) Statements in aggravation and




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mitigation must be filed and served at least four days before the time set for sentencing.

(§ 1170, subd. (b); rule 4.437(a).)

       Sentencing judges have virtually unlimited discretion as to the kind of information

they can consider and the source whence it comes. (People v. Hove (1999) 76

Cal.App.4th 1266, 1275.) They may consider responsible unsworn or out-of-court

statements concerning the convicted person's life and characteristics and may receive

evidence that might otherwise not be admissible at trial. (People v. Roberts (2011) 195

Cal.App.4th 1106, 1128.) "Fundamental fairness, however, requires that there be a

substantial basis for believing the information is reliable." (People v. Lamb (1999) 76

Cal.App.4th 664, 683.)

       As a preliminary matter, we reject the Attorney General's assertion that this appeal

must be dismissed because Barnett waived his right to appeal any stipulated sentence as

part of his plea. The record reflects that the parties agreed to a sentencing "lid" of six

years. Where, as here, parties agreed to a maximum sentence, they leave unresolved the

appropriate sentence within the maximum and preserve the right to urge the exercise of

discretion in favor of a shorter term. (People v. Cuevas (2008) 44 Cal.4th 374, 376;

People v. Buttram (2003) 30 Cal.4th 773, 785.) We conclude, however, that Barnett

forfeited his arguments by failing to object below. Even assuming the issues were not

forfeited, we reject his contentions on their merits.

       The proof of service for the prosecutor's sentencing brief shows it was served the

day before the hearing. Although the brief was not served the required four days before

the hearing, defense counsel did not object to it on this basis, nor did counsel object to the


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prosecutor's arguments at the hearing which summarized the factual information

contained in his sentencing brief, such as Barnett's training from the Marines regarding

the dangers of drunk driving, Barnett being warned before the accident about his need to

have a designated driver, and Barnett's past citations for excessive speed.

       Defense counsel had notice and opportunity to object to the alleged unreliable

factual statements contained in the prosecutor's sentencing brief, but failed to do so.

The failure to object forfeited the alleged error. (See People v. Scott (1994) 9 Cal.4th

331, 348, 353.) We reject Barnett's contention that defense counsel lacked a meaningful

opportunity to object because the court failed to issue a tentative ruling. Defense counsel

could have voiced an objection after the prosecutor argued and at any time during the

trial court's recitation of the aggravating factors. Even assuming the issue was not

forfeited, the sentencing brief and oral argument suggest the prosecutor obtained the

information presented to the court from a police report that contained Barnett's own

statements, statements from members of Barnett's company, and a statement from a

Marine corporal that spoke to Barnett in a bar before the accident. Thus, we reject

Barnett's claim that the factors listed in the prosecutor's sentencing brief were so

unreliable as to violate his right to due process.

       We also reject Barnett's assertion that this matter must be remanded for

resentencing because the trial court improperly used the elements of the crime as

aggravating factors and all other aggravating factors cited by the trial court were

improper. First, Barnett forfeited this claim by failing to raise it below. (People v. Scott,

supra, 9 Cal.4th at pp. 351-353; see also People v. Ortiz (2012) 208 Cal.App.4th 1354,


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1371 [defendant "must object at the time of sentencing if the trial court . . . double-counts

a particular sentencing factor"].) In any event, we observe that the claim would likely fail

on its merits.

       The court's sentencing decision is reviewed for an abuse of discretion. (People v.

Sandoval (2007) 41 Cal.4th 825, 847.) A single factor in aggravation is sufficient to

justify a sentencing choice. (People v. Brown (2000) 83 Cal.App.4th 1037, 1043.) The

court need not weigh aggravating and mitigating factors, nor state a reason for rejecting a

mitigating factor. (People v. Sandoval, at p. 847.) When a trial court gives both proper

and improper reasons for a sentence choice, we will set aside the sentence only if it is

reasonably probable that the trial court would have chosen a lesser sentence had it known

that some of its reasons were improper. (People v. Price (1991) 1 Cal.4th 324, 492.)

       Here, the trial court found Barnett presumptively ineligible for probation and

Barnett does not contend the trial court abused its discretion when it found no unusual

circumstances warranted the grant of probation. (People v. Stuart (2007) 156

Cal.App.4th 165, 178 [finding that a case may or may not be unusual is reviewed for an

abuse of discretion].) Given the parties agreement that the maximum sentence the court

could impose was the middle term, the court's only sentencing options were the low or

middle terms for four or six years. (§ 191.5, subds. (a), (c)(1).)




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       First, as addressed above, the aggravating factors contained in the prosecutor's

sentencing brief, and recited by the trial court, were not unreliable as the record suggests

the prosecutor obtained the information from a police report. Defense counsel's failure to

object and argument at the sentencing hearing suggest he had access to the same

information and did not consider the information unreliable. Moreover, the probation

report stated that a third party witness observed Barnett intentionally spinning his car

before the accident. The trial court noted this and impliedly found this fact exceeded the

minimum necessary to establish the elements of the crime. (See People v. Castorena

(1996) 51 Cal.App.4th 558, 562-563 [particularly egregious drunk driving can support

aggravated term for gross vehicular manslaughter].) Thus, it is not reasonably probable

the court would have chosen a lesser sentence absent the aggravating factors listed in the

prosecutor's sentencing brief.

                                      DISPOSITION

       The judgment is affirmed.


                                                                             McINTYRE, J.

WE CONCUR:


McCONNELL, P. J.


HALLER, J.




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