PEOPLE OF MI V JESUS PABLO BERLANGA
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 24, 1998
Plaintiff-Appellee,
v
No. 193355
Tuscola Circuit Court
LC No. 94-006568-FC
JESUS PABLO BERLANGA,
Defendant-Appellant.
Before: Gribbs, P.J., and Murphy and Gage, JJ.
PER CURIAM.
Defendant appeals as of right from his jury convictions of assault with intent to commit murder,
MCL 750.83; MSA 28.278, and conspiracy to commit assault with intent to commit murder, MCL
750.157a; MSA 28.354(1). The trial court sentenced defendant to concurrent terms of seventeen and
a half to thirty-five years’ imprisonment for the assault conviction and fifteen to thirty years’
imprisonment for the conspiracy conviction. We affirm.
Defendant first argues that there was insufficient evidence to convict him of conspiracy. We do
not agree. There was evidence that (1) defendant and his two coconspirators were in a gang together;
(2) the attitudes of all three changed toward the complainant just before the assault; (3) all three met on
the roof before asking the complainant to join them; (4) one passed a claw hammer to the complainant
with instructions to pass it to defendant directly before the assault; and (5) the coconspirators made
statements about killing the complainant as he was being assaulted with the hammer by defendant.
Based on the above evidence, and drawing every inference in the prosecution’s favor, there was
sufficient evidence for the jury to find that defendant’s two coconspirators planned with him to kill the
complainant and to find defendant guilty beyond a reasonable doubt of conspiracy to assault with intent
to murder. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748, modified on other grounds 441
Mich 1201 (1992).
Defendant next argues that the trial court abused its discretion by admitting, as evidence of
motive, testimony regarding a shooting attended by defendant, his two coconspirators and the
complainant the night before the instant assault. Defendant argues that it was irrelevant and prejudicial.
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This argument is without merit. Evidence that directly impacts some element or material issue in a case
can be admitted. MRE 401; MRE 402. A material fact need not be an element of a crime or cause of
action or defense but it must at least be “in issue” in the sense that it is within the range of litigated
matters in controversy. People v Mills, 450 Mich 61, 68; 537 NW2d 909 (1995). While motive is
not an element of either crime charged, it is a material issue that tends to make the commission of the
assault more probable. This evidence was not unfairly prejudicial, since both defendant and the
complainant witnessed the shooting together.
Defendant also argues that the trial court abused its discretion by upwardly departing from the
sentencing guidelines after defendant withdrew a guilty plea and exercised his right to a jury trial, and by
imposing a sentence that was retaliatory. This argument is without merit. A presumption of
vindictiveness for an increased sentence is reserved to cases where there is a “reasonable likelihood”
that the increase is due to actual vindictiveness. Alabama v Smith, 490 US 794, 799; 109 S Ct 2201;
104 L Ed 2d 865 (1989). “[W]hen a greater penalty is imposed after trial than was imposed after a
prior guilty plea, the increase in sentence is not more likely than not attributable to the vindictiveness on
the part of the sentencing judge. Even when the same judge imposes both sentences, the relevant
sentencing information available to the judge after the plea will usually be considerably less than that
available after a trial.” Id. at 801. This is the situation facing defendant, so there is no presumption of
vindictiveness and defendant failed to make a showing of actual vindictiveness.
Finally, defendant argues that the sentence was disproportionate. A trial court is not required to
stay within the sentencing guidelines, and may depart where, in their judgment, the recommended range
is disproportionate, in either direction, to the seriousness of the crime. People v Milbourn, 435 Mich
630, 657; 461 NW2d 1 (1990). Where the court departs, it must articulate its reasons on the record at
sentencing and in the sentencing information report. People v Fleming, 428 Mich 408, 428; 410
NW2d 266 (1987). The trial court upwardly departed from the guidelines presumptively proportionate
range by two years, six months, stating that it did not think it had “ever seen a case that came closer to a
first degree murder than this one.” This is an adequate explanation for the trial court’s determination
that this crime rose to the level of seriousness warranting departure from the guidelines by two and one
half years. The mitigating factors of defendant’s young age and lack of prior convictions do not prevent
a judge from sentencing at the maximum level under the guidelines or even departing upward, since the
primary consideration in sentencing is whether the sentence imposed is proportional to the seriousness
of the offense when considered in conjunction with the particular defendant. People v Granderson,
212 Mich App 673, 681; 538 NW2d 471(1995).
We affirm.
/s/ Roman S. Gribbs
/s/ William B. Murphy
/s/ Hilda R. Gage
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