Filed 1/7/14 P. v. Gardner CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,                                                          B245426

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA384242)
         v.

JEROME LAMONT GARDNER,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Sam
Ohta, Judge. Affirmed.
         Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and
Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.


                                  ________________________________
       Appellant Jerome Lamont Gardner appeals from a judgment entered following a
jury trial in which he was convicted of voluntary manslaughter. (Pen. Code, § 192,
          1
subd. (a).) He argues the trial court abused its discretion in sentencing him to the upper
term of 11 years in prison. We affirm the judgment.


                    FACTUAL AND PROCEDURAL SUMMARY
       Appellant began dating Jasione Thomas in June 2009, and fathered her child
sometime thereafter. By April 2011, he was expecting another child with Emily Herron,
and did not want Ms. Thomas to learn of his affair. To resolve his dilemma, appellant
said he wanted to terminate Ms. Herron’s pregnancy by having somebody fight with her.
       On April 28, 2011, appellant drove Ms. Thomas, Lashanique Hulse, David
Johnson, and others to his cousin’s house to drop off his child. Mr. Johnson brought a
gun with him after appellant told him to do so. While in the car, appellant received a
phone call from Ms. Herron, who said she wanted his “baby mama” to meet her on Coco
Avenue for a fight. Ms. Thomas knew she was on her way to fight Ms. Herron. Upon
arriving, everybody exited the car, and Ms. Thomas and Ms. Herron exchanged punches.
Appellant told Ms. Thomas to “[g]et that bitch.” He attempted to intervene once it was
clear that Ms. Herron was getting the best of the fight.
       As the fight continued, Greg Horn, a security guard at a nearby high school, was
driving on an adjacent street. After somebody flagged him down, Mr. Horn exited his
car, walked toward appellant, and asked what was going on. Appellant responded using
                                                 2
gang jargon, such as “Fuck BPS. This is 40s.” Ms. Herron, testifying for the
prosecution, said that Mr. Horn made gestures indicating he wanted to fight. Ms. Hulse,
also a witness for the prosecution, testified that Mr. Horn simply placed his hands on his

1
       All subsequent references are to the Penal Code.
2
        A witness testified that BPS is shorthand for Black P Stones, a gang that operates
in the neighborhood, and that 40s are members of a rival Crips gang. Appellant testified
that he never said anything gang related.
                                             2
waist and adjusted his pants. Although Mr. Horn did not have a weapon or make any
threats, appellant testified that he was afraid Mr. Horn had a gun. He backed away from
Mr. Horn, tapped on his car, and told Mr. Johnson “to get off on him.” Following this
statement, Mr. Johnson began shooting. Mr. Horn fell, dove under a car, and later died
from multiple gunshot wounds. After the shooting, appellant drove away.
       On May 6, 2011, an FBI agent arrested appellant. During a subsequent interview
at a police station, appellant said Mr. Horn did not look like he had wanted to fight. On
November 29, 2011, appellant and Mr. Johnson were charged with felony-murder of Mr.
Horn (§ 187, subd. (a)), with gang (§ 186.22, subd. (b)(1)(C)) and firearm (§ 12022.53)
enhancements.
       Both appellant and Mr. Johnson were tried before the same jury. The evidence at
trial was in dispute. Testifying as a defense witness, Ms. Thomas said Ms. Herron
initiated a conflict with her via the Internet and a phone conversation. Testifying in his
own defense, appellant said he made the statement about the fight only as a joke. He also
testified he did not know Mr. Johnson brought a gun to the fight.
       The prosecution argued appellant was guilty of second degree murder as an aider
and abettor and as an accomplice. Appellant’s counsel contended he was not guilty
because he did not kill Mr. Horn and did not ask Mr. Johnson to do so. The prosecution
also argued Mr. Johnson was guilty of voluntary manslaughter under an imperfect self
defense theory. Mr. Johnson’s counsel argued that, if guilty of homicide at all, he only
was guilty of voluntary manslaughter on theories of self defense, or, in the alternative,
imperfect self defense.
       On October 3, 2012, the jury found appellant guilty of the lesser included offense
of voluntary manslaughter (§ 192, subd. (a)), and found the gang allegation (§ 186.22,
                          3
subd. (b)) to be not true. The court sentenced appellant to the upper term of 11 years in
state prison on November 16, 2012. It outlined seven factors, and “weighed a senseless

3
       Because the jury verdict form did not include the firearm allegation, it made no
finding as to that charge.
                                             3
violence instigated by [appellant]” against his “lack of criminal history.” Appellant filed
a timely notice of appeal.


                                       DISCUSSION
       Appellant contends the trial court abused its discretion by sentencing him to the
upper term of 11 years. He argues the sentencing decision was irrational and arbitrary
because the court relied on evidence, allegedly supporting malice aforethought and the
gang enhancement, which the jury did not credit.
       “Voluntary manslaughter is punishable by imprisonment in the state prison for 3,
6, or 11 years.” (§ 193, subd. (a).) During sentencing, “[t]he court shall select the term
which, in the court’s discretion, best serves the interests of justice.” (§ 1170, subd. (b).)
The statute directs courts to consider both aggravating and mitigating factors provided by
the parties, and to “set forth on the record the reasons for imposing the term
selected . . . .” (Ibid.) Courts may also consider “any other factor reasonably related to
the sentencing decision.” (Cal. Rules of Court, rule 4.420(b).) Most significant here,
“[n]othing in the applicable statute or rules suggests that a trial court must ignore
evidence related to the offense of which the defendant was convicted, merely because
that evidence did not convince a jury that the defendant was guilty beyond a reasonable
doubt of related offenses.” (People v. Towne (2008) 44 Cal.4th 63, 85-86 (Towne)
[affirming court’s sentence that considered evidence related to defendant’s conduct in
committing crime where jury impliedly found facts to be not true].) Contrary to the
standard for criminal trial verdicts, “[f]acts relevant to sentencing need be proved only by
a preponderance of the evidence.” (Id. at p. 86.) “[T]he trial court may consider a fact as
aggravating even though the jury acquitted the defendant of charges based on that fact.”
(People v. Weber (2013) 217 Cal.App.4th 1041, 1065 [affirming upper-term sentencing
decision based on facts not found true by jury, citing Towne, at pp. 83-89].)
       We review the broad discretion of trial courts conferred by section 1170 for abuse
of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) “[A] trial court will


                                              4
abuse its discretion . . . if it relies upon circumstances that are not relevant to the decision
or that otherwise constitute an improper basis for decision.” (Ibid.) The “court does not
abuse its discretion unless its decision is so irrational or arbitrary that no reasonable
person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
Reviewing judgments under this abuse of discretion standard, we presume trial courts act
to achieve legitimate sentencing objectives. (Ibid.)
       The court did not abuse its discretion in sentencing appellant to 11 years in prison.
Before reaching sentencing, the court summarized the facts of the murder, including how
the fight occurred in Blood gang territory and appellant’s gang slurs. It then properly
weighed defendant’s lack of criminal history against the “senseless violence” he
instigated. The court highlighted four aggravating factors. First, “Mr. Horn was a
vulnerable victim” because he was unarmed and “caught by surprise.” Second, appellant
“was an active participant in the killing of Mr. Horn . . . [whose] death is inextricably
intertwined with Mr. Gardner’s transgressions.” Third, appellant “is sophisticated in
criminality . . . [because] [h]e was directly involved with orchestrating a fight that turned
into a killing.” Finally, the court noted appellant “does not appear remorseful.” It also
mentioned three mitigating factors: appellant “ha[d] no criminal record”; a witness
claimed appellant was “willing to comply with the terms of probation”; and he appeared
to be “able to comply with the terms of probation.” At no point in discussing the
sentence did the court mention facts supporting a gang enhancement, or a finding of
malice aforethought. As a result, appellant’s claim that the court erred in sentencing
because it relied on these facts is without merit.
       However, assuming the court relied on such facts, it did not abuse its discretion.
“Both the United States Supreme Court and [the California Supreme Court] have
expressly held that a trial court, in exercising its discretion in sentencing a defendant on
an offense of which he or she has been convicted, may take into account the court’s own
factual findings with regard to the defendant’s conduct related to an offense of which the
defendant has been acquitted, so long as the trial court properly finds that the evidence


                                               5
establishes such conduct by a preponderance of the evidence.” (In re Coley (2012)
55 Cal.4th 524, 557 [affirming conviction and sentence where court relied upon facts
underlying charge of which defendant was acquitted].) The evidence here showed that
appellant asked Mr. Johnson to bring a gun to the fight, then instructed him to use it. It
also demonstrated that appellant made gang slurs just before the killing. Even though the
jury did not credit this evidence with a true finding on the gang allegation or a murder
conviction, the trial court could properly find the facts true under the preponderance of
the evidence standard. Accordingly, we find no abuse of discretion in the court’s
sentencing decision.


                                     DISPOSITION
       The judgment is affirmed.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                                                EPSTEIN, P. J.


We concur:




WILLHITE, J.




MANELLA, J.


                                             6
