Opinion
F084136
02-17-2023
THE PEOPLE, Plaintiff and Respondent, v. LEO ALEJANDREZ, Defendant and Appellant.
Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F20908851. David Andrew Gottlieb, Judge.
Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Defendant Leo Alejandrez was convicted of domestic violence with a prior domestic violence conviction and possession of a firearm by a felon. On appeal, he contends (1) defense counsel was ineffective for failing to more directly and emphatically argue that defendant's trauma/mental illness required imposition of the lower term under new law and (2) his two convictions for possession of a firearm by a felon were based on the same ongoing possession. We reverse one of the two possession convictions and otherwise affirm.
PROCEDURAL SUMMARY
On April 16, 2021, the Fresno County District Attorney filed a first amended information charging defendant with domestic violence with a prior domestic violence conviction (Pen. Code, § 273.5, subd. (f)(1); count 1), criminal threats (§ 422; count 2), two counts of possession of a firearm by a felon (§ 29800, subd. (a)(1); counts 3 &6), second degree robbery (§ 211; count 4), first degree residential burglary (§§ 459, 460, subd. (a); count 5), misdemeanor resisting arrest (§ 148, subd. (a)(1); count 7), and two counts of dissuading a witness (§ 136.1, subd. (b)(2); counts 8 &9). As to count 2, the information further alleged defendant was armed with a firearm when he committed the crime (§ 12022, subd. (a)(1)). In addition, the information alleged defendant had suffered prior convictions for attempted murder and assault with a deadly weapon, which constituted both prior "strike" convictions within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and prior serious felony convictions (§ 667, subd. (a)).
All statutory references are to the Penal Code.
Defendant admitted having suffered the two prior strike convictions. And the parties stipulated that in 2017, defendant was convicted of misdemeanor domestic violence (§ 273.5, subd. (a)), and in 2019, he was convicted of a felony violation of a criminal domestic violence protective order with a prior violation (§ 166, subd. (c)(4)).
It was later determined that defendant had only one qualifying prior strike conviction because they both arose from the same circumstances.
On April 22, 2021, a jury found defendant guilty on counts 1, 3, 6, and 7, and not guilty on the remaining counts.
On July 29, 2021, defendant was assessed by K&L Clinical Forensic Practice (K&L), as requested by defense counsel in preparation for a request that the trial court divert defendant to mental health treatment pursuant to section 1001.36. The resulting report detailed defendant's mental illnesses, which included major depressive disorder and unspecified trauma and stress-related disorder, but concluded there was insufficient evidence that defendant's mental illness/trauma "played a significant role" in the commission of the current crimes, and consequently defendant was not eligible for mental health diversion.
On January 1, 2022, the new section 1170, subdivision (b)(6) (henceforth 1170(b)(6); added by Stats. 2021, ch. 731, §§ 1.3, 3(c)) came into effect, making a low-term sentence presumptively appropriate under specified circumstances, including where the defendant's psychological or physical trauma was a "contributing factor" to his commission of the offense (§ 1170(b)(6)(A)).
On March 10, 2022, the trial court sentenced defendant to nine years four months in prison as follows: on count 1, the midterm of eight years (four years, doubled pursuant to the Three Strikes law); on count 3, 16 consecutive months (one-third the midterm, doubled pursuant to the Three Strikes law); on count 6, two concurrent years; on count 7, a jail term.
On March 22, 2022, defendant filed a notice of appeal.
FACTS
On three occasions in November and December 2020, defendant committed violent acts against his ex-girlfriend, including injuring her by throwing a bottle at her face, twice breaking into her apartment, and twice threatening her with a firearm. On one of the occasions, he broke into her apartment at 2:00 a.m., pulled out a firearm with an extended magazine, and threatened to kill her because she had obtained a protective order against him. She was able to run away and call 911. The ex-girlfriend believed that on one occasion, defendant was drunk, and on another, he was high on methamphetamine.
DISCUSSION
I. Ineffective Assistance of Counsel
Defendant contends defense counsel provided ineffective assistance because he failed to "put squarely before the court" the argument that the K&L report contained evidence that defendant had experienced three types of trauma that were connected to his commission of the crimes, and therefore the trial court was required to impose the low term under section 1170(b)(6)(A). We conclude defendant cannot show he was prejudiced by counsel's performance.
A. Background
On January 1, 2022, Assembly Bill No. 124 (2021-2022 Reg. Sess.) became effective and added section 1170(b)(6):
"Notwithstanding paragraph (1), and unless the court finds that the aggravating circumstances outweigh the mitigating circumstances [such] that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense: [¶] (A) The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence. [¶] (B) The person is a youth, or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense. [¶] (C) Prior to the instant offense, or at the time of the commission of the offense, the person is or was a victim of intimate partner violence or human trafficking." (§ 1170(b)(6), italics added.)
On February 9, 2022, in defendant's sentencing memorandum/motion, defense counsel raised several issues, including mental health diversion under section 1001.36 and mitigation to the low term under section 1170(b)(6)(A).
At the sentencing hearing on March 10, 2022, the trial court first entertained defendant's request for mental health diversion and the K&L report, which stated in part:
"During the evaluation [defendant] did not endorse experiencing mental health symptoms on the day of the offenses. [Defendant] stated he typically experiences mental health symptoms, such as auditory hallucinations and visual hallucinations while under the influence of methamphetamine.
"The information gathered from the interview with [defendant] and review of police records indicates his mental health symptoms are more closely connected to his substance use, though he does appear to suffer from depressive symptoms independent of his substance use. His paranoid ideation is likely better explained by his lengthy history of methamphetamine use, and homelessness, and the jail environment.
[¶] ... [¶]
"There was insufficient information available to conclude [defendant's] severe mental disorder played a significant role in the commission of his current felony charges. According to documents available for review with respect to the current offense, there was no indication of mood or psychotic symptoms present at the time of the offense.
"Per [defendant's] explanation of the events to the present evaluator, he admitted to using methamphetamine and alcohol the day prior to the offense. While he admitted to feeling depressed in the past in response to being homeless, financial issues, history of childhood abuse, trauma associated with being shot, [defendant] described the events in a logical and linear fashion and there was no evidence of paranoid or delusional beliefs associated with the offense, or more specifically with respect to corporal injury to his ex-girlfriend. Furthermore, [defendant] denied any psychotic symptoms that would have contributed to his behavior in this offense.
"There also was no indication in the police reports of delusional or paranoid ideation at the time of his offense nor bizarre or unusual behavior preceding the offense. Following the offense, [defendant] fled the scene. When officers contacted [defendant], he refused to obey officers commands and began to run from officers. Officers were able to catch up to him and placed him under custody.
"[Defendant's] historical symptoms are better explained by his recurrent substance use. His behavior at the time of the offenses is also better explained by his poor emotional regulation and lack of disregard for the safety of others leading up to the offense."
After considering the K&L report and hearing both counsel, the court stated:
"Okay. All right. So the Court is going to make the determination that pursuant to [section] 1001.36 there is not a nexus that has been established between any potential mental health disorder and the commission of this offense. And the Court has reviewed many reports from K&L in the past and I can tell you that they do an extraordinarily thorough job of doing their investigation. And I think that the key word here is significant role in the commission of the offenses. Many of these offenses were committed when he was under the influence of methamphetamines. It's clear to the Court that a lot of his actions were probably as a result of that. However, a lot of the actions that he committed were also very goal oriented, running from police, having a gun in his possession, things of that sort.
"I agree with K&L in that those are much better explained by his recurrent substance abuse as opposed to any type of depressive symptoms that he might have had. I think that-I have disagreed with K&L on other cases, but not as to this one. Specifically I have had Dr. Leite do reports on many, probably more than a dozen persons for screening for [section] 1001.36. And, again, I feel that her report is extraordinarily thorough. It's accurate. It's complete. I combine that with the facts and circumstances that this Court knows occurred during the commission of this offense and based upon the totality of those circumstances, the Court finds that he's not a suitable candidate for diversion." (Italics added.)
After this ruling and before sentencing, defense counsel presented an argument on mitigation, which defendant now contends should have addressed section 1170(b)(6)(A) more directly and emphatically:
"Your Honor, as I address in my motion, and it is mentioned in the K&L report, that [defendant] does suffer from mental illness. He's had a long history of that. And it's true that he suffers from substance abuse issues. You can say if they're a separate-sometimes they commingle and sometimes people use substances to treat their-self medicate their issues, but I think it plays a significant role in some of his behavior. Not all of his behavior, but some of his behaviors.
"And [defendant] is now at least, while he's in custody, he's now receiving medication. He's willing to accept treatment and I think he's making positive roles to have some kind of insight into some of the things he's [d]one here. And I know that's something that most treating doctors can say, if you don't have the insight, you can't really move on forward from that. And I think he's been reluctant in the past to even accept treatment or to have the insight, even though I did submit records from him when he was in prison on the first term, that he had significant diagnoses while in prison and was resistant to treatment over a period of time. I think he's at the stage in his life now where whatever happens today he's going to continue to seek treatment for his condition. And I think mental health has played a significant role in some of the actions that he's done, that that applies a mitigating factor in that-either for [striking a prior strike conviction] or for the mitigated term or both, the Court can consider that." (Italics added.)
The trial court responded as follows:
"All right. Thank you, counsel. [¶] The Court's read and reviewed Probation's report. I have reviewed this multiple times. I recall the trial and, you know, [defendant] is just really a serial domestic violence perpetrator. And the sad thing is, is that his partners tend to come to court and either minimize or deny that these things happened. And it happens time after time after time. And he's really increased the severity of his attacks.
"In the most recent cases he's had a gun. Even though jurors did not find certain things true, or proven beyond a reasonable doubt, the charges that were found true and proven beyond a reasonable doubt, it's scary conduct. And [defendant] is 45 years old. When are we going to say he should have learned his lesson and he should have gone to a program? He was given probation back in 2017. He was told to do a Batterer's Intervention Program. He didn't do it. He's been given opportunities on parole and probation in the past as well. He's known for a long time about his mental illness and about what happens when he takes drugs and it almost always invariably results in violence. He's a big, strong guy, and when he hits people, or when he does things to people, it results in serious injury.
"At some point in time the Court has to say-and I know everybody, you know, on the page on this has to say, look, we need to protect people in the community and I think that's the situation here. Now he's arming himself with a gun. You know, he has a prior strike for an attempted murder. He has the more recent cases, which upon second look at them, are extraordinarily serious. The 2017, just in reading some of the language in it, there was an independent witness that saw him walking after the victim with a knife in his hand. He caused her to fall to the ground by pushing her, stood over her, struck her in the face. He continued to run with the switchblade in his hand. He was acting belligerent to police officers. Obviously, he's drunk at the time, and he creates so much damage to her, that she has blood running out of her eye, blood on her face, redness to her face, swelling to her eye. It just goes on and on. And so I think the Court needs to recognize that, you know, he's a dangerous individual especially the fact that he's carrying around guns.. The Court is going to deny the motion to strike his prior strike.
"That having been said, I certainly consider the mitigating factors in this case, his use of controlled substances on a regular and ongoing basis, his mental health issues that are also a serious factor to consider. On the flip side in aggravation, again, we have use of-we have the gun possession charges, ... one of which I'm going to ... run concurrently]. The other I'm going to . impose the 16-month term, but I am going to use those factors in aggravation as well as the non-strike criminal history, that again includes the 2017 . [violation of a domestic violence protective order], as well as the 2017 conviction and the other convictions in between.
"So aggravating and mitigating factors balance one another. He's sentenced to the middle term of eight years in the Department of Corrections for violation of [section] 273.5(f)(1) as well as the strike. As to Count Three, the Court will impose a one-third the middle term. That's eight months doubled for 16 months making the sentence a total of nine years and four months. As to the last [section] 29800, that being Count Six, . I'll impose a two-year concurrent sentence to the sentence of nine years and four months.." (Italics added.)
The probation officer's report found multiple aggravating factors and no mitigating factors, and it recommended a sentence of 12 years eight months.
B. Analysis
To establish ineffective assistance of counsel, a defendant must show (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and (2) counsel's deficient performance was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) On review, we can, and often do, adjudicate an ineffective assistance claim solely on the issue of prejudice, without determining the reasonableness of counsel's performance. (Strickland, at p. 697; Ledesma, at pp. 216217; People v. Hester (2000) 22 Cal.4th 290, 296-297.)
To establish the prejudice prong, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at p. 694; Ledesma, supra, 43 Cal.3d at pp. 217-218.) "It is not sufficient to show the alleged errors may have had some conceivable effect on the trial's outcome ...." (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.) Put another way, prejudice requires a showing of "a' "demonstrable reality," not simply speculation.'" (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
Here, the question of prejudice turns on whether there is a reasonable probability that, but for defense counsel's failure to more directly and emphatically argue that defendant was entitled to a low term under section 1170(b)(6)(A), the result of the proceeding would have been different. In other words, defendant must show a reasonable probability that the trial court would have concluded it must sentence defendant to the low term.
Section 273.5, subdivision (f)(1) provides: "Any person convicted of violating this section for acts occurring within seven years of a previous conviction under subdivision (a), or subdivision (d) of Section 243, or Section 243.4, 244, 244.5, or 245, shall be punished by imprisonment in a county jail for not more than one year, or by imprisonment in the state prison for two, four, or five years, or by both imprisonment and a fine of up to ten thousand dollars ($10,000)." (Italics added.)
We do not believe the record supports this as a reasonably probable outcome. First, we presume the trial court was aware of the current law, considered it, and applied it when sentencing defendant. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1390 ["Absent evidence to the contrary, we presume that the trial court knew and applied the governing law."].) Section 1170(b)(6) became effective more than three months before defendant was sentenced. Defense counsel's memorandum/motion raised mitigation under section 1170(b)(6)(A) and the court stated it had considered defendant's "mental health issues" in the context of mitigation. The court provided an extensive sentencing explanation, stressing defendant's violent criminal history (that included attempted murder and assault with a deadly weapon), his repeated crimes of domestic violence, the increasing severity and violence of his crimes, his use of a firearm in their commission, and his failure to attend required programs or make efforts to deal with his violence and substance abuse. The court expressly found no nexus between defendant's mental health issues and his commission of the current crimes, concluding instead that his crimes were driven by substance abuse and criminal goals-a conclusion amply supported by our review of the record as a whole.
In light of this record, we are confident that even had defense counsel argued more directly and emphatically for mitigation under section 1170(b)(6)(A), the court would still not have found the essential nexus between defendant's trauma/mental illness and the current crimes and thus would still have concluded section 1170(b)(6)(A) was not applicable.
As defendant points out, after he was sentenced, we published People v. Banner (2022) 77 Cal.App.5th 226, where, like here, both mental health diversion under section 1001.36 and mitigation under section 1170(b)(6)(A) were at issue. In Banner, we held that psychological trauma arising from mental illness may establish the trauma element of section 1170(b)(6)(A). (Banner, at pp. 240-241.) We also held that the contributing factor required for mitigation under section 1170(b)(6)(A) is a less onerous causation threshold than the significant factor required for mental health diversion under section 1001.36 (Banner, at p. 241), and thus a trial court's finding that a defendant's trauma/mental illness was not sufficient to be a significant factor under section 1101.36 does not include or necessitate a finding that the same trauma/mental illness was not sufficient to be a lesser contributing factor under section 1170(b)(6)(A) (Banner, at pp. 241-242).
Banner, however, does not change our conclusion in the present case. That is simply because the trial court did not conclude that defendant's trauma/mental illness was insufficient to rise to the level of a significant factor in the commission of the crimes (in which case the court might conclude it was nevertheless sufficient to constitute a contributing factor); rather, the court concluded the causal connection between the two was missing. Of course, Bannon did not eliminate the necessity of the causal element. We conclude the trial court's finding of a lack of a causal connection applied equally to the question of whether that trauma/mental illness was a contributing factor. Without the causal connection, defendant's trauma/mental illness could not satisfy section 1170(b)(6)(A).
II. Firearm Possession Convictions
Defendant also contends the concurrent two-year term on count 6 should be stayed pursuant to section 654. The People respond that the conviction itself should be reversed because the two counts of possession of a firearm by a felon (counts 3 &6) were based on a single, ongoing possession of the same gun, constituting only one crime. (People v. Mason (2014) 232 Cal.App.4th 355, 365 [possession of a firearm by a felon is a continuing offense and "only one violation occurs even though the proscribed conduct may extend over [an] indefinite period"]; id. at p. 367 [only one conviction for possession of a firearm by a felon is proper for a continuing possession, and any others must be reversed for lack of evidence].) Defendant accepts the People's suggestion, as do we, and we reverse the conviction on count 6.
DISPOSITION
The conviction on count 6 for possession of a firearm by a felon (§ 29800, subd. (a)(1)) is reversed. In all other respects, the judgment is affirmed.
[*]Before Levy, Acting P. J., Peña, J. and Smith, J.