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People v. Birmingham

California Court of Appeal · D009414 · 1990-01-18 · Published · 217 Cal. App. 3d 180 · 265 Cal. Rptr. 780 · 1990 Cal. App. LEXIS 26

The PEOPLE, Plaintiff and Respondent, v. DAVID BIRMINGHAM, Defendant and Appellant

Area
criminal
Panel
Daniel J. Kremer (author)

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T07:38Z · confidence high

The trial court denied probation and imposed consecutive prison terms after hearing unsworn statements from the victims' mothers at sentencing. The Court of Appeal affirmed the judgment, holding that the statements were permissible under Penal Code section 1191.1 and that the sentencing decisions were not an abuse of discretion.

Ruling reviewedStandardThe courtThe model
Permitting victims' mothers to make unsworn statements without cross-examination
“The trial court did not err in permitting the mothers to make unsworn statements.”
abuse of discretionnot reachedagree with court
The court held that Penal Code section 1191.1 grants victims the right to speak at sentencing and that the Sixth Amendment right to confrontation does not apply to sentencing hearings, citing People v. Huber and People v. Arbuckle to support the admissibility of unsworn statements.
Imposing consecutive sentences
“The trial court did not abuse its discretion in imposing consecutive sentences.”
abuse of discretionnot reachedagree with court
The court found that California Rules of Court, rule 425 identifies multiple victims as a basis for consecutive terms, and since the crimes occurred in a single transaction involving multiple victims, the trial court's decision was supported by a legitimate ground.
Denial of probation
“Given this opinion, the denial of probation was neither arbitrary nor capricious.”
abuse of discretionnot reachedagree with court
The court applied the presumption that the trial court acted to achieve legitimate sentencing objectives and found that the denial was supported by the psychological evaluation submitted by the defendant, which labeled him a pedophile and a danger to the community.

Authorities

  • relied: Booth v. Maryland (1987) 482 U.S. 496 — Introduction of victim impact statements in the sentencing phase of a capital murder trial violates the Eighth Amendment.
  • relied: People v. Sewell (1989) 210 Cal.App.3d 1447 — Booth v. Maryland does not apply to sentencing hearings before a judge.
  • relied: People v. Stringham (1988) 206 Cal.App.3d 184 — Booth v. Maryland does not apply to sentencing hearings before a judge.
  • relied: People v. Evans (1983) 141 Cal.App.3d 1019 — A defendant who fails to object at trial or seek a continuance waives the right to complain on appeal.
  • relied: Loder v. Municipal Court (1976) 17 Cal.3d 859 — At a sentencing hearing, statements which would be inadmissible on the issue of guilt may be received.
  • relied: People v. Lo Cicero (1969) 71 Cal.2d 1186 — The court may consider the probation report at sentencing even though it is hearsay.
  • relied: In re Beal (1975) 46 Cal.App.3d 94 — If a defendant contends any part of the probation report is untrue, he must object at sentencing.
  • relied: People v. Peterson (1973) 9 Cal.3d 717 — A sentencing hearing must be fundamentally fair.
  • relied: United States v. Fischer (1967) 381 F.2d 509 — The Sixth Amendment right to confront and cross-examine witnesses does not apply to sentencing hearings.
  • relied: People v. Huber (1986) 181 Cal.App.3d 601 — There is no Sixth Amendment right to confrontation at the sentencing hearing, and the court may consider unsworn statements.
  • relied: People v. Arbuckle (1978) 22 Cal.3d 749 — Fundamental fairness does not require that a defendant be allowed to challenge statements by cross-examining the personnel who prepared the report.
  • relied: People v. Coulter (1983) 145 Cal.App.3d 489 — Multiple victims refers to multiple victims of a single crime or crimes committed during a single transaction.
  • relied: People v. Walmsley (1985) 168 Cal.App.3d 636 — Probation is an act of leniency, not a matter of right.
  • relied: People v. Axtell (1981) 118 Cal.App.3d 246 — The decision to grant or deny probation requires consideration of all the facts and circumstances of the case.
  • relied: People v. Bolton (1979) 23 Cal.3d 208 — A factor in determining whether to grant probation is whether failure to incarcerate would unduly depreciate the seriousness of the crime.
  • relied: People v. Giminez (1975) 14 Cal.3d 68 — Absent a clear showing the decision to deny probation is arbitrary or irrational, it is presumed the trial court acted to achieve legitimate sentencing objectives.

The appellate opinion: sound — The opinion correctly applies the distinction between trial and sentencing hearings regarding the right to confrontation and hearsay, relying on established California precedent. It properly defers to the trial court's sentencing discretion regarding consecutive terms and probation denial, finding the decisions supported by the record and statutory rules.

How this analysis was made · dispute it

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:32Z · confidence medium

After David Birmingham pleaded guilty to two counts of lewd conduct with children under fourteen, the trial court allowed the victims' mothers to make unsworn statements at sentencing, denied probation, and imposed an eight-year term consisting of the six-year middle term plus a consecutive two-year term on the second count. The Court of Appeal rejected his challenges to the victim statements, the consecutive terms, and the denial of probation, and affirmed the judgment.

Ruling reviewedStandardThe courtThe model
Permitting the victims' mothers to make unsworn statements at sentencing under Penal Code section 1191.1 without advance notice of E.'s mother, without oath, and without cross-examination
“Here, the statements by the victims’ mothers pursuant to section 1191.1 did not impair the right to a fundamentally fair hearing. The trial court did not err in permitting the mothers to make unsworn statements.”
de novocorrectagree with court
The court correctly held Booth v. Maryland is limited to jury sentencing in capital cases (Sewell, Stringham), that the failure to object or seek a continuance when E.'s mother spoke forfeited the notice complaint (Evans), and that section 1191.1 expressly authorizes a minor victim's parent to appear and express views. The holding that the Sixth Amendment confrontation right does not apply at sentencing and that reliable unsworn information may be considered consistent with due process is well supported by Arbuckle, Huber, Loder, and Lo Cicero. Nothing in the record suggests the statements were unreliable or that the court relied on them for disputed facts.
Imposition of consecutive terms on the two counts based on multiple victims and the 'hurt' caused to multiple families
“Here, the two crimes occurred in a single transaction. “Multiple victims” was a proper reason for imposing consecutive terms. The trial court did not abuse its discretion in imposing consecutive sentences.”
abuse of discretioncorrectagree with court
Two separate victims orally copulated the defendant during one overnight incident, so under Coulter the multiple-victims circumstance in rule 425 could support consecutive terms; a single valid aggravating circumstance suffices. However, the court did not squarely decide whether the trial court's reliance on 'hurt' to the families was an improper factor, nor did it perform the Avalos harmlessness inquiry the prosecution invited, and it did not acknowledge the contrary line of authority (e.g., Humphrey) holding multiple victims inapplicable where each count involves a single victim. The result is defensible but the reasoning is thin on these points.
Denial of probation based on the defense psychologist's diagnosis that the defendant was an opportunistic pedophile lacking insight, untreatable, and a danger to the community, who also violated a position of trust
“Given this opinion, the denial of probation was neither arbitrary nor capricious.”
abuse of discretioncorrectagree with court
Probation is an act of leniency reviewed deferentially (Walmsley, Giminez), and the trial court relied on a psychological evaluation the defendant himself submitted, along with violation of a position of trust, to find danger to the community and lack of amenability to treatment. The defendant's attack on Dr. Murphy's diagnosis as unsupported is a factual quarrel with evidence he introduced, which does not show an arbitrary or irrational decision.

Authorities

  • relied: Booth v. Maryland (1987) 482 U.S. 496 — Victim impact statements before a capital sentencing jury violate the Eighth Amendment; held inapplicable to judge sentencing.
  • relied: People v. Sewell (1989) 210 Cal.App.3d 1447 — Booth does not apply to noncapital sentencing hearings before a judge.
  • relied: People v. Stringham (1988) 206 Cal.App.3d 184 — Booth does not bar victim statements at a judge-conducted sentencing hearing.
  • relied: People v. Evans (1983) 141 Cal.App.3d 1019 — Failure to object at sentencing forfeits the claim on appeal.
  • relied: Loder v. Municipal Court (1976) 17 Cal.3d 859 — Information inadmissible on the issue of guilt may be considered at sentencing.
  • relied: People v. Lo Cicero (1969) 71 Cal.2d 1186 — A sentencing court may consider the probation report although it contains hearsay.
  • relied: In re Beal (1975) 46 Cal.App.3d 94 — A defendant contending the probation report is inaccurate must object at sentencing.
  • relied: People v. Peterson (1973) 9 Cal.3d 717 — Sentencing hearings must be fundamentally fair.
  • relied: United States v. Fischer (1967) 381 F.2d 509 — The Sixth Amendment right of confrontation and cross-examination does not apply at sentencing.
  • relied: People v. Huber (1986) 181 Cal.App.3d 601 — Unsworn victim statements under section 1191.1 without cross-examination do not violate the Sixth Amendment.
  • relied: People v. Arbuckle (1978) 22 Cal.3d 749 — Due process permits a sentencing court to consider responsible unsworn or out-of-court information; fundamental fairness does not require cross-examination of report preparers.
  • relied: People v. Coulter (1983) 145 Cal.App.3d 489 — The multiple-victims circumstance under rule 425 applies to crimes against separate victims committed in a single transaction.
  • relied: People v. Walmsley (1985) 168 Cal.App.3d 636 — Probation is an act of leniency, not a matter of right.
  • relied: People v. Axtell (1981) 118 Cal.App.3d 246 — Probation decisions require consideration of all facts and circumstances, including whether release would unduly depreciate the seriousness of the crime.
  • relied: People v. Bolton (1979) 23 Cal.3d 208 — Sentencing courts consider whether failure to incarcerate would depreciate the seriousness of the offense.
  • relied: People v. Giminez (1975) 14 Cal.3d 68 — Absent a clear showing of arbitrariness, the trial court is presumed to have acted to achieve legitimate sentencing objectives.
  • missed: People v. Avalos (1984) 37 Cal.3d 216 — Reliance on an improper sentencing factor is harmless only if it is not reasonably probable a more favorable sentence would have been imposed absent the error; the court did not apply this test to the 'hurt to families' remark.
  • missed: People v. Humphrey (1982) 138 Cal.App.3d 881 — The multiple-victims circumstance may not be used to impose consecutive terms where each count involves only a single victim; the court applied Coulter without addressing this contrary line.

The appellate opinion: sound with gaps — The opinion correctly disposes of the victim-statement challenge with forfeiture, the text of section 1191.1, and settled authority that confrontation and oath requirements do not govern sentencing, and it properly defers on the probation denial. It is thinner on consecutive sentencing, declining to decide whether 'hurt' to the families was an improper factor, skipping the Avalos harmlessness analysis the People invoked, and not acknowledging the Humphrey line of cases that conflicted with Coulter on the multiple-victims circumstance.

How this analysis was made · dispute it

Opinion — Kremer

Opinion

KREMER, P. J.

J.—David Birmingham entered a negotiated plea of guilty to two counts of lewd and lascivious conduct with a child under the age of fourteen years (Pen. Code, 1 § 288a). The court sentenced him to serve eight years in prison: the middle term of six years on one count, with a consecutive two-year term on the other. Birmingham appeals.

On August 23, 1988, a baby-sitter overheard Birmingham’s six-year-old daughter E. say to her five-year-old friend Jessica, “Yeah, but you sucked my daddy’s wiener.” A week earlier, Jessica had stayed overnight with E. and both girls had orally copulated E.’s father. On August 25, the girls were examined at Palomar Hospital. Both showed symptoms of anal and vaginal trauma. Birmingham admitted the oral copulation but insisted anal and vaginal contact did not occur.

At the sentencing hearing, Jessica’s and E.’s mothers spoke in favor of imprisonment. Jessica’s mother said: “. . . I would like to say here today I don’t think there is a sentence long enough for what David . . . did to my daughter. It is something that will be with her the rest of her life.

“It destroyed my five-year-old little daughter for what he did to her. And I think he should be sentenced for life. I don’t think he deserves to get medical treatment.

“He acted like a friend to me. And he took my daughter into his house and did what he did to her, everything possible you can think of. And my daughter has to live with that the rest of her life.”

E.’s mother told the court: “I feel he should be put away. He has interfered with my life. If he is out he does know where my daughter is. He knows exactly where she is. And I am totally destroyed trying to get my life back in order. It’s been ripped up. I am just starting a new life and everything. That’s basically it.”

*183 The probation report said Jessica’s mother would appear at sentencing but the officer had been unable to contact E.’s mother. Birmingham submitted a psychological evaluation by Dr. Raymond Murphy. Noting Birmingham had been an Eagle Scout and had a high IQ, the trial court denied probation because he was a danger to the community, had no insight into the wrongfulness of his conduct, was not amenable to treatment, and had violated a position of trust. The court mentioned Dr. Murphy had diagnosed him as a pedophile.

Birmingham contends the trial court erred in permitting the victims’ mothers to speak without notice, without oath, and without the opportunity to cross-examine, and abused its discretion in imposing consecutive terms and denying probation.

I

Birmingham bases his contention the trial court erred in permitting the victims’ mothers to speak on statutory grounds; due process requirements of notice, oath, and opportunity to confront and cross-examine; and on Booth v. Maryland (1987) 482 U.S. 496 [96 L.Ed.2d 440, 107 S.Ct. 2529].

In Booth, the Supreme Court held introduction before a jury of a victim’s impact statement in the sentencing phase of a capital murder trial violated the Eighth Amendment. (482 U.S. at pp. 501-502 [96 L.Ed.2d at p. 448].) Booth does not apply to sentencing hearings before a judge. (People v. Sewell (1989) 210 Cal.App.3d 1447, 1449 [259 Cal.Rptr. 34]; People v. Stringham (1988) 206 Cal.App.3d 184, 199 [253 Cal.Rptr. 484].)

Birmingham argues the introduction of the victims’ mothers’ statements deprived him of the statutory and due process rights to notice, to have evidence in aggravation given under oath, and to confront and cross-examine.

The probation report notified Birmingham that Jessica’s mother would appear at the sentencing hearing. When E.’s mother also appeared, he made no objection to her statement, nor did he seek a continuance. As a result, he has waived any objection to the statement. He cannot complain for the first time on appeal. (People v. Evans (1983) 141 Cal.App.3d 1019, 1021 [190 Cal.Rptr. 633].)

In any case, section 1191.1 provides, in pertinent part: “The victim of any crime, or his or her parent or guardian if the victim is a minor, or the next of kin of the victim if the victim has died, has the right to attend all *184 sentencing proceedings under this chapter and shall be given adequate notice by the probation officer of all sentencing proceedings concerning the person who committed the crime.

“The victim, or his or her parent or guardian if the victim is a minor, or next of kin has the right to appear, personally or by counsel, at the sentencing proceeding and to reasonably express his or her views concerning the crime, the person responsible, and the need for restitution. The court in imposing sentence shall consider the statements of victims, parents, or guardians, and next of kin made pursuant to this section and shall state on the record its conclusion concerning whether the person would pose a threat to public safety if granted probation.”

The section itself gives notice a victim or the parent of a victim may appear and be heard at sentencing. Aside from Booth v. Maryland, supra, 482 U.S. 496, Birmingham cites no authority supporting his argument he should have been given notice of the identity of the victims who would make statements, the statements should have been under oath, and he was entitled to cross-examine the victims. In fact, the authority is to the contrary. At a sentencing hearing, statements which would be inadmissible on the issue of guilt may be received. (Loder v. Municipal Court (1976) 17 Cal.3d 859 [132 Cal.Rptr. 464, 553 P.2d 624].) For example, the court may consider the probation report although it is hearsay. (People v. Lo Cicero (1969) 71 Cal.2d 1186 [80 Cal.Rptr. 913, 459 P.2d 241].) If a defendant contends any part of the report is untrue, he must object at sentencing. (In re Beal (1975) 46 Cal.App.3d 94 [120 Cal.Rptr. 11].) While the hearing must be fundamentally fair (People v. Peterson (1973) 9 Cal.3d 717 [108 Cal.Rptr. 835, 511 P.2d 1187]), the Sixth Amendment right to confront and cross-examine witnesses does not apply to sentencing hearings. (United States v. Fischer (2d Cir. 1967) 381 F.2d 509, 511.)

Section 1191.1, which was enacted as part of Proposition 8, gives victims the right to appear at sentencing and express views concerning the crime, the defendant, and the need for restitution. The court must consider the statements in sentencing the defendant. Because victims’ statements are made at sentencing rather than trial, the right to confrontation is not implicated and hearsay is not a ground for objection.

In People v. Huber (1986) 181 Cal.App.3d 601, 635-636 [227 Cal.Rptr. 113], the court allowed each of the victims to give a statement under section 1191.1. None of the victims testified under oath, and most simply read a statement to the court. The court denied a defense request for cross-examination. The reviewing court concluded there is no Sixth Amendment right to confrontation at the sentencing hearing. The sentencing court may, *185 consistently with the due process clause of the Fourteenth Amendment, consider responsible unsworn or out-of-court information relative to the circumstances of the crime and the convicted person’s characteristics. (People v. Arbuckle (1978) 22 Cal.3d 749, 754-755 [150 Cal.Rptr. 778, 587 P.2d 220, 3 A.L.R.4th 1171].) “[Fundamental fairness does not require that [defendant] be allowed to challenge such statements by cross-examining the personnel who prepared the report . . . .” (Id. at p. 755 [discussing whether the defendant had a right to subpoena personnel of the Department of Corrections who prepared reports under § 1203.03].)

Here, the statements by the victims’ mothers pursuant to section 1191.1 did not impair the right to a fundamentally fair hearing. The trial court did not err in permitting the mothers to make unsworn statements.

II

Birmingham contends the trial court abused its discretion in imposing consecutive sentences. During the sentencing hearing, the court said: “Having evaluated the sentencing rules under [Cal. Rules of Court, rule] 425 and recognizing that there are multiple victims, the court [chooses] to run the sentence consecutive as a result of separate victims and the, for lack of a better word, the hurt that has been caused to multiple families as a result of this conduct.”

Birmingham argues “hurt” to the victims’ families is not a proper basis for imposing consecutive sentences. The prosecution argues this was harmless error since the trial court based imposition of consecutive terms on a legitimate ground, separate victims. California Rules of Court, rule 425 specifically identifies multiple victims as a basis for imposing consecutive terms. “Multiple victims” refers to multiple victims of a single crime or crimes committed during a single transaction. (People v. Coulter (1983) 145 Cal.App.3d 489, 492-493 [193 Cal.Rptr. 476].) Here, the two crimes occurred in a single transaction. “Multiple victims” was a proper reason for imposing consecutive terms. The trial court did not abuse its discretion in imposing consecutive sentences.

III

Birmingham contends the trial court abused its discretion in denying probation. He recognizes probation is “an act of leniency, not a matter of right.” (See People v. Walmsley (1985) 168 Cal.App.3d 636, 638 [214 Cal.Rptr. 170].) The decision to grant or deny probation requires consideration of all the facts and circumstances of the case. (People v. Axtell (1981) 118 Cal.App.3d 246, 256-257 [173 Cal.Rptr. 360].) Birmingham argues the *186 trial court found him to be a danger to the community based on its misplaced reliance on an unsupported and erroneous assertion by a clinical psychologist, Dr. Murphy, that he was a pedophile.

Among the factors to be considered in determining whether to grant or deny probation is whether the failure to incarcerate $Jie defendant “would unduly depreciate the seriousness of the crime.” (People v. Axtell, supra, 118 Cal.App.3d at p. 255; see also People v. Bolton (1979) 23 Cal.3d 208, 217 [152 Cal.Rptr. 141, 589 P.2d 396].) Absent a clear showing the decision to deny probation is arbitrary or irrational, it is presumed the trial court acted to achieve legitimate sentencing objectives. (See People v. Giminez (1975) 14 Cal.3d 68, 72 [120 Cal.Rptr. 577, 534 P.2d 65].)

Here, the trial court said it was denying probation because Dr. Murphy, whose opinion Birmingham introduced, reported he was an opportunistic pedophile who lacked insight into his problem and was therefore unbeatable and a danger to the community. Given this opinion, the denial of probation was neither arbitrary nor capricious.

Judgment affirmed.

Benke, J., and Froehlich, J., concurred.

1

All statutory references are to the Penal Code.

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