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Name: People v. Brown
Case #: B134542
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 09/25/2000
Subsequent History: Rev. den. 1/10/01

The court affirmed a sentence consisting of a lower term of 18 months for attempted voluntary manslaughter and the upper term of 10 years on the enhancement for use of a firearm. The victim, a married police officer, had a three year extramarital affair with the defendant, also a police officer. The victim came to the defendant’s house and told her he wanted to terminate the relationship. The defendant shot him four times with a .22 caliber pistol, twice in the chest, once in the abdomen, and once in the leg. The court imposed the lower term on the offense, finding in mitigation that the defendant did not have a prior record. On the enhancement, the court found the defendant used the gun repeatedly and inflicted great bodily injury. On appeal, the defendant argued that the sentences imposed were arbitrary and inconsistent. The court noted that the precise contentions were not raised in the trial court. The sentencing issue was waived by failure to object (citing People v. Scott (1994) 9 Cal.4th 331, 355). However, the court addressed the issues on the merits, and found that the trial court had not abused its discretion. As to each sentencing decision, including the determination of the sentence on the enhancement, the court was permitted to look to the attendant circumstances, including additional criteria beyond that contained in the California Rules of Court (citing rule 408; People v. Hall (1994) 8 Cal.4th 950, 961). In denying the application for probation, the trial court also mentioned the defendant’s status as a sworn police officer as a factor in aggravation. As to the contention that the court could not “swing to the other end of the spectrum” on the enhancement after imposing the lower term on the offense, the reviewing court found that Penal Code section 1170, subdivision (b) and rule 428 permit this as long as reasons are stated for each decision and the decisions do not violate the rule against dual use of facts.