Nevill

Robert Nevill appeals his judgment of conviction for the shooting voluntary manslaughter of his wife, alleging the trial court denied him procedural due process at resentencing by relying on aggravating factors not used to impose his initial sentence. He further contends there is no factual support for any of the three aggravating factors used to aggravate his resentenced term.

We hold there is no constitutional or statutory bar to a sentencing court using any factor in aggravation at resentencing, so long as it is supported by the facts of the case, even though the factor was not mentioned, or was explicitly rejected, at the initial sentencing proceeding. We also find ample evidence supports the aggravated findings of victim vulnerability (Cal. Rules of Court, rule 421(a)(3)) and Nevill’s viciousness and callousness (rule 421(a)(1)) in the manner in which he repeatedly fired his semiautomatic rifle at his helpless wife at point-blank range in their bedroom. We find the trial court erred in finding the crime was committed with a high degree of mental cruelty (rule 421(a)(1)); however, because the sentencing court found each aggravating factor standing alone outweighed…