People v. Littlejohn CA5 ( 2021 )

Filed 9/20/21 P. v. Littlejohn CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080571
Plaintiff and Respondent,
(Super. Ct. No. F17906497)
v.
ANTHONY CHARLES LITTLEJOHN, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt,
Judge.
Nicco Capozzi for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian
Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Detjen, Acting P.J., Meehan, J. and DeSantos, J.
Defendant Anthony Charles Littlejohn was found guilty by jury trial of attempted
murder and assault with a firearm. On appeal, he argues the trial court erred when it
sentenced him to an aggravated and a consecutive term without giving a statement of
reasons for its sentencing choice. We affirm.
PROCEDURAL SUMMARY
On September 11, 2019, the Fresno County District Attorney filed a
second amended consolidated information charging defendant with attempted murder
(Pen. Code, §§ 664 and 187, subd. (a);1 count 1) and assault with a firearm (§ 245,
subd. (a)(2); count 2). The information further alleged the following enhancements: as
to count 1, the defendant personally and intentionally discharged a firearm which
proximately caused great bodily injury or death (§ 12022.53, subd. (d)); as to count 2, the
defendant personally used a firearm (§ 12022.5, subd. (a)); and as to both counts, the
defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)).
On September 17, 2019, a jury found defendant guilty as charged in both counts
and found all enhancements to be true.
On November 12, 2019, the trial court sentenced defendant to an aggregate term
of 12 years four months plus 25 years to life. As to count 1, he was sentenced to the
aggravated term of nine years, plus three years pursuant to section 12022.7,
subdivision (a), which was stayed, and 25 years to life pursuant to section 12022.53,
subdivision (d). As to count 2, he was sentenced to one year, plus two years four months
pursuant to section 12022.7, subdivision (a) to run consecutively to count 1.
On January 8, 2020, defendant filed a notice of appeal.
FACTUAL SUMMARY
On December 29, 2016, Donta Baker was speaking on the telephone outside of his
uncle’s apartment when defendant approached him. Defendant asked him where he was
1 All further statutory references are to the Penal Code.
2.
from. Baker responded he was from the “east side.” Defendant next asked if Baker was
“ ‘willing to die for [his] hood’ ” and identified himself as a West Side Hoover gang
member. He repeated the question and pulled out a gun. Baker told defendant he did not
know him and began walking away. Thereafter, defendant “pistol whipped” him on the
head. Baker began running away and defendant shot his gun. A chase ensued between
the two men. Baker heard four shots and was struck by a bullet on his right leg.
Eventually, Baker made it back to his uncle’s apartment where a neighbor called 911.
DISCUSSION
Defendant asserts the trial court abused its discretion when it imposed the
aggravated term on count 1 and a consecutive term on count 2 without providing a
statement of reasons for its sentencing choice. The People counter defendant forfeited his
claim by failing to object at the time of sentencing. We agree that defendant has forfeited
this claim.
The trial court has “broad discretion to decide … whether to run the prison terms
on multiple offenses concurrently or consecutively.” (People v. Clancey (2013) 56
Cal.4th 562, 579.) California Rules of Court, rule 4.4252 sets forth factors affecting the
decision to impose consecutive rather than concurrent sentences, which include the
presence of circumstances in aggravation or mitigation. The trial court must generally
state its reasons for choosing to impose consecutive sentences. (Rule 4.406(b)(5).)
Likewise, in imposing an upper term, “[t]he court shall state the reasons for its sentence
choice on the record at the time of sentencing.” (§ 1170, subd. (c).) However,
“ ‘complaints about the manner in which the trial court exercises its sentencing discretion
and articulates its supporting reasons cannot be raised for the first time on appeal.’ ”
(People v. Boyce (2014) 59 Cal.4th 672, 730.) “ ‘[C]laims involving the trial court’s
failure to properly make or articulate its discretionary sentencing choices’ are subject to
2 All further references to rules are to the California Rules of Court.
3.
forfeiture, including ‘cases in which the stated reasons allegedly do not apply to the
particular case, and cases in which the court purportedly erred because it double-counted
a particular sentencing factor, misweighed the various factors, or failed to state any
reasons or to give a sufficient number of valid reasons.’ ” (Id. at pp. 730–731.)
In this case, the trial court stated the following at sentencing:
“Having reviewed the case and reacquainted myself with the
specifics of this case, I do find that the Probation Department’s analysis of
the Rules of Court and the statutory eligibility for probation are correctly
stated. The Court does adopt and make these findings itself today.
“As to circumstances in aggravation relating to the crime, this was a
crime of great violence. There was, in fact, a significant great bodily injury
suffered by the victim in this case. And I do also find that the proposed
findings, that the circumstances in aggravation as they relate to the
defendant do correctly apply as stated on page 7 [of the probation report].
The one thing I would point out is finding that the defendant’s prior
performance on probation was unsatisfactory. Quite frankly, it was kind of
hard to draw that conclusion based on only the modest juvenile history that
the defendant has. The same thing with regard to the increasing
seriousness. Essentially, the defendant went from a simple battery and
resisting arrest to attempted murder with a firearm. And I also questioned
exactly how they arrived at the risk assessment score as stated on page 1
stating that he’s a low risk individual at this point. The problem is that
[defendant] crossed the line in this matter.
“Pursuant to law the defendant is statutorily ineligible for a grant of
probation pursuant to Penal Code Section 12022.53[, subdivision] (g), and I
will just state right now as to any application of Penal Code
Section 12022.53, I cannot articulate any basis for striking or amending that
enhancement as it has been found true by the jury and as it applies to
[defendant]. This was a significant set of events that have to be taken into
consideration for all they are worth. He chased [the victim] down the street
shooting at him. [The victim] is lucky he’s alive. [¶] … [¶]
“Therefore, I am going to deny probation. The defendant shall be
committed to the California Department of Corrections and Rehabilitation
as to Count One for the aggravated term of nine years to be enhanced by an
additional and consecutive three years pursuant to Penal Code
Section 12022.7[, subdivision] (a), which is imposed, but will be stayed
pursuant to [section] 1170.1[, subdivision] (g), creating therefore a
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determinate term of nine years. That nine years, however, will be followed
by one indeterminate term of 25 years-to-life pursuant to Penal Code
Section 12022.53[, subdivision] (d). [¶] … [¶]
“As to Count Two, the defendant is committed for the aggravated
term of four years enhanced by an additional and consecutive four years
pursuant to Penal Code section 12022.5[, subdivision] (a), and an additional
and consecutive three years pursuant to Penal Code Section 12022.7
[, subdivision] (a) to run consecutive to Count One at the rate of one third
of the midterm or one year and one third the enhancements of two years,
four months. That creates the aggregate term of three years, four months.
“So the aggregate term total for One and Two is 12 years,
four months determinate followed by one indeterminate term of 25-years-
to-life, and as of today the defendant has total consecutive time credits of
859 days, 747 actual, 112 conduct calculated pursuant to Penal Code
section 2933.1.”
Defense counsel did not object either to the trial court’s sentencing choice, or to
the adequacy of its statement of reasons for sentencing. Accordingly, defendant has
forfeited this claim.
DISPOSITION
The judgment is affirmed.
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