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People v. Leung4/9/1992
ajor a player as the other two defendants, according to the testimony that the court heard in this case." The court imposed the middle term for count I and a one-year arming enhancement pursuant to Penal Code section 12022, subdivision (a)(1). Consecutive one-third the middle term sentences were imposed for counts II, III, and IV. "They were separate offenses, separate victims, each of whom suffered
separate losses and being armed. The separateness of those offenses mandates there be consecutive sentences imposed ..." Sentence on counts V, VI, VII, and VIII and the enhancements related thereto were stayed pursuant to Penal Code section 654.
b. Denial of Probation and Imposition of Midterm Proper
Chan attacks three of the factors set forth by the trial court as supporting its denial of probation and imposition of the middle term: Chan's danger to others; the planning, sophistication and premeditation involved in the offense; and lack of remorse. (former Rule 414(b), (c)(7) and (d)(9).) He argues that there was insufficient evidence to support a finding that he was a danger to others or that he had participated in the planning of the offenses. In addition, he argues that lack of remorse is not properly applied to a defendant who denies his guilt even after conviction.
Where the defendant is eligible for probation, the court must state its reasons for selecting a prison commitment as its sentencing choice. This obligation to state reasons is satisfied by an explanation of why probation has been rejected in favor of imprisonment. (People v. Romero (1985) 167 Cal. App. 3d 1148, 1151 [213 Cal. Rptr. 774]; People v. Crouch (1982) 131 Cal. App. 3d 902, 904 [182 Cal. Rptr. 701]; Pen. Code, § 1170, subd. (c); former rule 439(d).) The circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance of the evidence. (People v. Lewis (1991) 229 Cal. App. 3d 259, 264 [280 Cal. Rptr. 128]; former rule 439(b).)
Chan argues that he was only minimally involved in the offenses and had no role in the planning of the robberies. Consequently, he asserts that the "planning, sophistication and premeditation" factor was inapplicable to him. The evidence at trial established that Chan entered the kitchen where David Leung had two victims at gunpoint with their hands up. Chan was wearing a handkerchief over the lower portion of his face to obscure his identity. David Leung and Chan forced the two victims to go to the basement. Left alone with the victims, Chan demanded money from them and took money from the only one who had any. He then ordered the victims to remain in the basement and not to move.
This evidence was sufficient to support the trial court's determination that Chan had participated in the premeditation and planning of the crimes and had contributed to the fairly sophisticated nature of the offenses. The offenses took place in the wee hours of the morning. Chan and the others wore masks. The victims were taken to a basement at gunpoint and relieved
of their possessions. Chan implicitly threatened them by warning them not to move. Chan's knowledge of and participation in the group's plan for the robberies was thereby evidenced. Because the trial court could have found that these circumstances aggravated the nature of the crimes, this factor was applicable to defendant Chan.
The trial court also found that Chan posed a danger to others. Chan argues that there was
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