This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Jose M. Ramirez,
Filed November 20, 2007
Affirmed as modified
Ramsey County District Court
File No. K0-05-4441
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Richard Schmitz, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Toussaint, Chief Judge; Worke, Judge; and Crippen, Judge.[*]
On appeal from sentences imposed for aiding and abetting attempted first-degree murder and aiding and abetting second-degree assault, both committed for the benefit of a gang, appellant argues that the district court abused its discretion by imposing an upward departure and by sentencing him to a consecutive sentence without reducing his criminal-history score. We affirm the district court’s decision to impose an upward departure, and modify the consecutive sentence to the presumptive guidelines sentence.
Appellant Jose M. Ramirez argues that the district court abused its discretion by imposing an upward sentencing departure. We review a district court’s decision to depart from the presumptive guidelines sentence for an abuse of discretion. Taylor v. State, 670 N.W.2d 584, 588 (Minn. 2003).
Upward sentencing departures must be based on evidence that the defendant committed the offense in a particularly serious way. Id. The offense must involve “substantial and compelling circumstances” that “make the facts of a particular case different from a typical case.” State v. Peake, 366 N.W.2d 299, 301 (Minn. 1985) (quotation omitted). Because a defendant may not be sentenced for a crime other than the crime of conviction, a district court may rely only on the egregious conduct underlying that offense. Taylor, 670 N.W.2d at 588. And the reasons for departing must not be elements of the underlying crime. State v. Thao, 649 N.W.2d 414, 424 (Minn. 2002). While factors may be considered together to justify a departure, one factor may be sufficient for that justification. See, e.g., State v. Losh,721 N.W.2d 886, 897 (Minn. 2006) (holding two aggravating factors provided sufficient evidence justifying the departure); State v. O’Brien, 369 N.W.2d 525, 527 (Minn. 1985) (stating departure justified when only one aggravating factor present). Reversal is warranted only if the reasons for the departure are improper or inadequate and there is insufficient evidence to justify an aggravated sentence for the offense of which the defendant was convicted. Taylor, 670 N.W.2d at 588.
Here, appellant pleaded guilty to attempted first-degree murder and second-degree assault, both committed for the benefit of a gang. The district court sentenced appellant to 210 months in prison for the attempted first-degree murder, a departure from the presumptive 192-month prison sentence; and to a consecutive 57-month sentence for the second-degree assault, for which the presumptive sentence was 45 months, calculated using 2 criminal-history points. The district court based its departure on four factors: three or more people were involved, the victim was particularly vulnerable, the crime was committed with particular cruelty, and the crime had a substantial impact on the community.
Appellant argues that the district court could not depart based on the involvement of three or more people because the crime of conviction was committed for the benefit of a gang. Appellant was sentenced for attempted first-degree murder, crime for the benefit of a gang, under Minn. Stat. §§ 609.185(a)(1), .229, subd. 2 (2004); and second-degree assault, crime for the benefit of a gang, under Minn. Stat. §§ 609.222, subd. 1, .229, subd. 2 (2004). “The aggravating factor involving groups of three or more persons under section II.D.2.b.(10) cannot be used when an offender has been convicted under Minn. Stat. § 609.229, Crime Committed for Benefit of a Gang.” Minn. Sent. Guidelines cmt. II.D.205. The district court improperly relied on the crime being committed by three or more people in departing from the presumptive sentence.
Appellant also argues that the district court improperly relied on the vulnerability of the victim as a factor supporting the departure. A victim is particularly vulnerable due to “age, infirmity, or reduced physical or mental capacity, which was known or should have been known to the offender.” Minn. Sent. Guidelines II.D.2.b.(1). The victim’s vulnerability is not a factor unless it was a “substantial factor” in the defendant’s accomplishment of the crime. State v. Gardner, 328 N.W.2d 159, 162 (Minn. 1983).
Here, appellant and two other gang members, Julio Robles, and Hugo Zavala, noticed a boy (M.D.) and a girl (M.N.) standing on a street corner. Zavala announced that M.D. was a member of a rival gang because he was wearing a red belt. Robles told appellant to give him his bat. Robles approached M.D. and hit him in the head with the bat. M.D. fell down and began convulsing. Appellant then kicked M.D. in the back while Robles assaulted M.N. The district court did not abuse its discretion in relying on the victim’s particular vulnerability as an aggravating factor. Appellant admitted that M.D. was particularly vulnerable; M.D. was much smaller than appellant, only thirteen years old, unarmed, alone, did not provoke the assault, did not defend himself, and had been hit in the head with a bat and was lying on the ground convulsing when appellant kicked him.
Appellant next argues that the district court improperly relied on a finding of particular cruelty to support the departure. Cruelty is a factor that may be used for a departure when “[t]he victim was treated with particular cruelty for which the individual offender should be held responsible.” Minn. Sent. Guidelines II.D.2.b.(2). “Cruelty is a matter of degree and it is not always easy to say when [a] departure is  justified.” Holmes v. State, 437 N.W.2d 58, 59 (Minn. 1989). The ultimate question is whether appellant’s actions were so significantly different from those of other persons similarly situated that an upward sentencing departure is justified. See State v. Esler, 553 N.W.2d 61, 64 (Minn. App. 1996), review denied (Minn. Oct. 15, 1996).
In State v. Jones, the supreme court held that a defendant’s failure to anonymously notify paramedics about the victim’s condition was properly considered an aggravating factor justifying a departure. 328 N.W.2d 736, 738 (Minn. 1983). The supreme court held that the defendant’s act “in leaving the victim in a beaten condition and in failing to notify the paramedics anonymously relates back and supports the view that the crime was committed in a particularly cruel way.” Id. And “[g]ratuitous infliction of pain will qualify as particular cruelty.” State v. Smith, 541 N.W.2d 584, 590 (Minn. 1996) (quotation omitted).
Here, M.D. was on the ground, suffering from a head injury and convulsing when appellant kicked him; this constitutes gratuitous infliction of pain. Additionally, appellant left M.D. on the ground and did not call for help. Appellant’s gratuitous infliction of pain and failure to seek help support the district court’s finding that appellant committed the offense with particular cruelty.
Appellant also argues that the district court improperly relied on the impact on the community as a factor in departing, contending that the sentencing guidelines do not include community impact as an aggravating factor. But the sentencing guidelines provide a “non-exclusive” list of factors that may be used in departing. Minn. Sent. Guidelines cmt. II.D.201. Therefore, the district court was not precluded from relying on community impact. And here there was testimony supporting the district court’s finding that the offense impacted the community—children were scared; the community feels threatened by gangs; and the offense, committed against a child because he was wearing red, caused the community to fear unprovoked assaults. The district court did not abuse its discretion by relying on community impact as an aggravating factor.
Finally, appellant argues that the district court erred in sentencing him to a consecutive sentence without reducing his criminal-history score to zero. The state agrees. See Minn. Sent. Guidelines II.F.7 (“For each offense sentenced consecutive to another offense(s), other than those that are presumptive, a zero criminal history score, or the mandatory minimum for the offense, whichever is greater, shall be used in determining the presumptive duration. The purpose of this procedure is to count an individual’s criminal history score only one time in the computation of consecutive sentence durations.”). Appellant’s consecutive sentence for the second-degree assault is modified from 57 months in prison to the presumptive 45-month sentence. See State v. Foreman, 680 N.W.2d 536, 541 (Minn. 2004) (holding that when the district court relied on erroneous sentencing guideline, and did not intend to depart from the presumptive sentence, the proper remedy is to modify the sentence rather than remand for resentencing).
Affirmed as modified.
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.