This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat 480A.08, subd. 3 (1996)

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-97-2218

State of Minnesota,

Respondent,

vs.

Juan Neil Garcia,

Appellant.

Filed June 30, 1998

Affirmed

Lansing, Judge

Ramsey County District Court

File No. K6971996

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Susan Gaertner, Ramsey County Attorney, Margaret C. Galvin, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)

John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Lansing, Presiding Judge, Forsberg, Judge,**

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, 2. and Holtan, Judge.**

** Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, 10.

U N P U B L I S H E D O P I N I O N

LANSING, Judge

In an appeal from conviction and sentence for second degree felony murder, Juan Garcia disputes that substantial and compelling circumstances support the district court's upward sentencing departure. The stated reasons, drawn from the evidence, support the addition of 60 months to the presumptive 180-month sentence, and we affirm.

FACTS

Juan Garcia was charged with one count of second degree intentional murder in violation of Minn. Stat. 609.19 (1) (1996), 609.11 (Supp. 1997), and 609.05 (1996). After return of a grand jury indictment for first degree felony murder in violation of Minn. Stat. 609.185(3) (1996) and 609.11 and second degree murder under Minn. Stat. 609.19, subd. 1(1), and 609.11, the state dismissed the original complaint. The case went to trial on the offenses charged in the indictment. The jury found Garcia guilty of second degree felony murder (lesser-included offense) for the fatal shooting of Jorge Martinez during an attempted robbery.

Based on Garcia's criminal history score of two, the presumptive sentence for second degree felony murder (a level nine offense) was 180 months. The district court judge departed upward by adding 60 months to the presumptive 180-month sentence. The reasons for the departure included: (1) Garcia acted with "particular cruelty and egregiousness" by firing four shots into the victim; (2) the victim was "particularly vulnerable" at the time of the killing because he was "unarmed in an automobile, unable to open the door which was his only means of escape"; (3) the victim was "emotionally unarmed because he was not in a situation where he would have been alert to danger"; (4) Garcia used a friend's position of trust to facilitate the crime; and (5) Garcia used his leadership position within a group of friends to plan and execute the crime.

D E C I S I O N

The decision to depart from Minnesota's Sentencing Guidelines is within the discretion of the district court and will not be reversed absent a clear abuse of that discretion. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981), overruled in part on other grounds by State v. Givens, 544 N.W.2d 774, 777 (Minn. 1996). A court may impose an upward departure if the crime involves "substantial and compelling aggravating" factors. Minn. Sent. Guidelines cmt. II.D.01; Garcia, 302 N.W.2d at 647. The primary consideration for departure is "whether the defendant's conduct was significantly more or less serious than that typically involved in the commission of the crime in question." State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984).

Garcia contends that each of the reasons stated by the district court is insufficient to support the sentencing departure. In a pro se brief, Garcia also raises the issues of disparate sentencing and denial of his right to a speedy trial.

I

The district court's sentencing departure rested on two grounds advanced by the prosecution, particular cruelty and vulnerability, and three additional grounds: exploiting emotional vulnerability, using a friend in a position of trust to facilitate the crime, and exercising leadership among the co-defendants to accomplish the crime.

Under the guidelines, "particular cruelty" is defined as "a kind not usually associated with the commission of the offense in question." State v. Schantzen, 308 N.W.2d 484, 487 (Minn. 1981). The critical inquiry in determining if a departure is warranted is whether Garcia's actions were "more serious than the typical killing in the course of a felony." State v. Kisch, 346 N.W.2d 130, 133 (Minn. 1984).

The facts establish that Garcia and his co-defendants planned the robbery almost a full day in advance. Garcia armed himself with a loaded .22 pistol and waited for Martinez to arrive. Garcia had known Martinez since Garcia was seven years old and, at one time, considered him a close friend. Garcia fired four shots directly at Martinez at relatively close range when Martinez was unable to get out of his car. See Kisch, 346 N.W.2d at 133 (unintentional killing resulting from multiple brutal blows justified limited durational departure for felony murder). The car accident that jammed Martinez's car door occurred while Garcia and Martinez struggled inside Martinez's car during the robbery planned and executed by Garcia. The facts also demonstrate mental cruelty or emotional vulnerability through Garcia's participation in tricking Martinez into thinking he was going to meet one of the co-defendants, Amy Nephew, for a date. State v. Morrison, 437 N.W.2d 422, 429 (Minn. App. 1989) (upward departure not an abuse of discretion due to victim's vulnerability and defendant's "position of trust and authority over her"), review denied (Minn. Apr. 26, 1989); State v. Schroeder, 401 N.W.2d 671, 676 (Minn. App. 1987) (victim was particularly vulnerable because "she trusted defendant, having known him for six years"), review denied (Minn. Apr. 23, 1987).

The testimony consistently identified Garcia as the primary proponent of the plan to rob Martinez. His leadership was demonstrated not only during the planning stage, but also during the execution of the crime and after the crime when the co-defendants met at Garcia's sister's home. The perpetrators left without summoning emergency help for Martinez, and Garcia directed others to get rid of the gun and to lie about what had happened. See State v. Chaklos, 528 N.W.2d 225, 228 (Minn. 1995) (sentencing court may consider "offense-related conduct of trying to pin the blame for the offense on someone else"); State v. Rodriguez, 505 N.W.2d 373, 377-78 (Minn. App. 1993) (leaving victim in van, "knowing she could not summon help or escape on her own," and failing to notify authorities supports upward departure), review denied (Minn. Oct. 19, 1993); Morrison, 437 N.W.2d at 429 (noting defendant's failure to provide medical attention for victim's extensive abuse-related injuries). The district court did not abuse its discretion in concluding that Martinez's murder was more serious than a "typical" felony murder.

II

In his pro se brief Garcia argues that the district court abused its discretion by imposing less severe sentences on his co-defendants and that the state violated his right to a speedy trial. A co-defendant's receiving a less onerous sentence is not an automatic basis for reversal. See State v. Vasquez, 330 N.W.2d 110, 112 (Minn. 1983) (achieving equality and fairness in sentencing involves comparing defendant's sentence with those of other offenders, not just those of accomplices); State v. Burgess, 319 N.W.2d 418, 421 (Minn. 1982) (trial court justified in imposing longer sentence when one defendant principally responsible for crimes).

Even if a disparate sentence for similar acts constituted a sufficient basis for reversal, that basis is not demonstrated by these facts. Garcia's role in the crime was markedly different from the others. Garcia was the leader of the group and played a significant role in planning and executing the crime. Unlike his co-defendants, Garcia was the one who fired the shots that killed the victim. See State v. Back, 341 N.W.2d 273, 277-78 (Minn. 1983) (declining to reduce defendant's sentence to make it more comparable to sentence received by co-defendant when defendant fired gun); State v. Douglas, 501 N.W.2d 694, 699 (Minn. App. 1993) (longer sentence justified when defendant's involvement "indicates principal responsibility for the crime"), review denied (Minn. Aug. 16, 1993).

We also reject Garcia's claim that failure to receive a speedy trial requires reversal. First, it is not clear that Garcia properly asserted a demand for a speedy trial. Although Garcia made a speedy-trial demand on the initial charge of second degree intentional murder, he did not make a speedy-trial demand on the indictment for first and second degree murder.

Even assuming a proper demand, Garcia has not alleged that he suffered any particular prejudice as a result of the delay. See Barker v. Wingo, 407 U.S. 514, 533, 92 S. Ct. 2182, 2193 (1972) (prejudice should be assessed in light of defendant's interests, including pretrial incarceration, anxiety over pending charge, and impairment of defense). Given the complexity of this case, which involved numerous co-defendants and a grand jury proceeding, the trial was not unduly delayed. See State v. Johnson, 498 N.W.2d 10, 15-16 (Minn. 1993) (whether right to speedy trial violated depends on whether properly asserted, whether it prejudiced defendant, and whether reasons causing delay are justified). Finally, we note that this issue was not raised in the district court proceedings. See State v. Ferraro, 277 Minn. 204, 208, 152 N.W.2d 183, 186 (1967) (matters not submitted to district court cannot be considered on appeal).

Affirmed.