Opinion
C095369
05-01-2023
THE PEOPLE, Plaintiff and Respondent, v. JEROME ALBERT ALVEY, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. F2000761)
RENNER, J.
A jury found defendant Jerome Albert Alvey guilty of assault with a deadly weapon and misdemeanor battery. The jury also found true the allegation that defendant personally inflicted great bodily injury on his victim. Defendant admitted to being previously convicted of an offense that qualified both as a strike and a serious felony. The court denied defendant's motions to strike the prior strike and serious felony offense and sentenced him to an aggregate term of 14 years in state prison.
On appeal, defendant contends the trial court abused its discretion in denying his motions to strike the prior strike and serious felony offense. We conclude the court acted within its discretion. Defendant also argues he is entitled to remand in light of recent amendments to Penal Code section 1170, subdivision (b)(6), so the trial court may consider whether his childhood trauma was a contributing factor to the commission of the current offense. The People concede the issue, and we accept their concession.
We will remand the matter for resentencing under recently amended section 1170, subdivision (b).
I. BACKGROUND
In 2020, after defendant and T.P. had been neighbors for 10 years, T.P.'s adult daughter S.P. moved in. After she moved in with T.P., parking became an issue between the neighbors, and defendant repeatedly told them not to park on his property. In September 2020, defendant put a "no parking" sign next to his driveway.
On November 16, 2020, S.P. had a visitor who parked in front of defendant's driveway and the "no parking" sign. S.P. stood by the vehicle talking to her visitor when defendant said," 'what did I tell you about what would happen to you the next time you parked on my property.'" Defendant then sprayed S.P. in the back with a water hose. S.P. turned around and defendant sprayed her in the face. S.P. yelled for defendant to stop and struggled to get the hose away from him. During the struggle, S.P. fell and landed on defendant's property.
Hearing the ruckus, T.P. came out of his house, approached defendant, and tried to stop him; defendant sprayed T.P. T.P. got close to defendant and said," 'Man, what are you doing?'" Defendant hit T.P. in the eye with the water hose nozzle, knocking T.P. to the ground. S.P. and her visitor ran to help T.P. Defendant yelled at them to "[g]et the fuck off [his] property." S.P. said she was going to call the police; defendant responded, "Fucking do it, you fucking bitch. I told you not to park there."
The police arrived soon thereafter along with an ambulance. T.P.'s face was cut from the bridge of his nose to the corner of his eye. As a result of the injury, he was hospitalized for four days and underwent two surgeries on his left eye. The injury left T.P. permanently blind in that eye.
The People charged defendant with assault with a deadly weapon (§ 245, subd. (a)(1)) and misdemeanor battery (§ 242). Related to the assault charge, the People alleged defendant personally inflicted great bodily injury on T.P. (§ 12022.7, subd. (a).) The People also alleged defendant was previously convicted of a strike offense (§§ 667, subds. (b)-(i) and 1170.12), which was also a serious felony (§ 667, subd. (a)(1)). A jury found defendant guilty on both counts and found true the allegation that he personally inflicted great bodily injury on his victim. Defendant then admitted he was previously convicted of both an offense that qualified as a strike and a serious felony.
Defendant later invited the trial court to consider dismissing his prior strike conviction. Defendant argued he was young, "only thirty[-]two years old," when he committed the prior offense and he successfully completed probation. He also argued he lived crime-free for 23 years. In response, the People argued that while defendant admitted to only a single prior conviction for felony sexual child abuse, he was actually convicted on two counts of sexually abusing his six and 10-year old stepdaughters. The People "engaged their discretion and only alleged one of the two qualifying 'strikes' against the Defendant." Defendant's crimes, while remote in time, were "nothing short of life altering for the victims in each instance."
Prior to sentencing, the Probation Department (the Department) issued its "presentencing investigation report." The Department noted that in 1998, defendant was convicted of two felony child sexual abuse crimes. Defendant himself was "molested by a neighbor in 1975," when defendant would have been 10 years old. Defendant described the abuse as" 'very traumatic.'" Defendant also told the Department that while he "did not intend to hurt [T.P.] that bad[,]" the assault happened on defendant's property, and he believed he had a right to defend himself.
Defendant indicated his attorney told him this was a self-defense case. His attorney "wanted to go to trial[] because if [defendant] took a plea deal and went to prison they would put a yellow jacket on [him] marked for death" because of his 1998 conviction for sexually abusing children. Defendant believed he sexually abused his stepdaughters because of his own victimization and because, at the time, he was addicted to drugs. Defendant also believed the district attorney had" 'a personal vendetta to get rid of [him].'" According to defendant, he suffered from post-traumatic stress disorder (PTSD), diagnosed by his current therapist.
The Department stated defendant's crime "involved great violence," noting T.P. sustained significant injuries that left him completely blind in one eye. (Cal. Rules of Court, rule 4.421(a)(1).) The Department also noted defendant was armed and the victim vulnerable. (Cal. Rules of Court, rule 4.421(a)(2) &(3).) Based on his criminal conduct, defendant was, the Department opined, a danger to society. (Cal. Rules of Court, rule 4.421(b)(1).) The Department did note that defendant had successfully completed probation following his 1998 conviction. (Cal. Rules of Court, rule 4.423(b)(6).)
Defendant later submitted his own hand-written statement in mitigation. Defendant detailed the sexual abuse he suffered as a young boy and said he suffered a brain injury in 1990. He discussed his efforts at therapy and explained his own abuse and drug addiction, both of which may have caused him to sexually abuse his stepdaughters. In 1999 defendant got sober. He had been attending 12-step meetings ever since. Defendant also detailed a lengthy and adverse history with members of the community and county officials, including the district attorney, whom he believed were aligned against him.
On October 1, 2021, the court heard defendant's motion to strike his prior strike under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and request to strike the "five-year nickel prior." The court considered the parties' written motions, defendant's own mitigation statement, and the probation report. In so doing, the court mentioned it had been "about 22 years or 23 years" since defendant's prior conviction and he successfully completed probation. The court also noted that no weapon was used in the prior offense and acknowledged defendant was himself a victim, "many years ago."
On the other hand, the court observed, the sexual abuse of children, even without a weapon, is a violent offense. And it was not clear to the court whether defendant's prior crimes were part of a single "aberrant" event or something more. The court found that being a victim did not give defendant "the right to victimize other people." The court also found defendant's current offense to be a violent one, leaving the victim blind in one eye. The court was "troubled" by defendant's lack of remorse, as demonstrated by defendant's ongoing insistence that he "had the right to do what he did." Defendant also continued to blame others for his circumstances, including the victim and the district attorney.
The court adopted the mitigating and aggravating factors set forth in the probation report and found, on balance, that defendant did not fall outside the spirit of the three strikes law. The court also found the sentence to be just and "proportional to the crime." Accordingly, the court denied defendant's motions. The court sentenced defendant to an aggregate term of 14 years: the middle term of three years for the assault conviction, doubled for the prior strike offense; six months for the misdemeanor battery conviction, to be served concurrently; three years for the great bodily injury enhancement; and five years for the prior serious felony conviction.
II. DISCUSSION
A. Motion to Strike the Prior Strike and Serious Felony
Defendant contends the trial court abused its discretion in denying his Romero motion and his motion to strike the five-year serious felony prior enhancement. We disagree.
Section 1385, subdivision (a) gives the trial court authority, on its own motion or upon application of the prosecution, "and in furtherance of justice," to order an action dismissed. In Romero, our Supreme Court held that a trial court may utilize section 1385 to strike or dismiss a prior strike for purposes of sentencing under the three strikes law. (Romero, supra, 13 Cal.4th at p. 504.) A trial court's ruling denying a request to dismiss a prior strike allegation "is subject to review under the deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).)
"In reviewing for abuse of discretion, we are guided by two fundamental precepts. First,' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."' [Citations.] Second, a' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'"' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Carmony, supra, 33 Cal.4th at pp. 376-377.)
In Carmony, our Supreme Court explained:" '[T]he Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court "conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme." '" (Carmony, supra, 33 Cal.4th at p. 377.) The circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be extraordinary. (Id. at p. 378.) Reversal is justified where the trial court was unaware of its discretion to dismiss a prior strike or considered impermissible factors in declining to dismiss. (Ibid.) But where the trial court, aware of its discretion," 'balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance.'" (Ibid.)
We find no abuse of discretion here. The trial court was aware of its discretion, considered the relevant factors, and reached its decision in conformity with the spirit of the three strikes law. The court considered the 22-23 years between defendant's convictions, as well as his successful completion of probation. The court read defendant's statement in mitigation, which addressed defendant's prior drug and alcohol addiction, as well as his efforts to get and stay sober. The court noted defendant was himself a victim of child sexual abuse. The court also noted defendant did not use a weapon to commit his prior crime. Nevertheless, the court found these mitigating factors were outweighed by the violent nature of defendant's convictions and his obvious lack of remorse.
Defendant contends there is insufficient evidence to support the court's finding he lacked remorse. His contention is belied by the record. Defendant struck his victim in the face with a water hose nozzle, then offered him no assistance, leaving the victim on the ground bleeding. When others tried to help T.P., defendant yelled at them to get off his property. Defendant then continued to insist he had a right to hit his victim; he blamed others for his circumstances. Such conduct is sufficient to support the court's finding that defendant lacked remorse.
On the whole, the court considered defendant to be a danger to society and determined the sentence to be well-suited to the crime. The court's decision was neither irrational nor arbitrary. We thus find the court did not abuse its discretion in denying the Romero motion. For the same reasons, we conclude the trial court did not abuse its discretion in refusing to strike the prior serious felony.
To avoid forfeiture, defendant argues that if we were to find any of his claims forfeited, then he received ineffective assistance of counsel at sentencing. Because we do not find any issues forfeited, we need not address the ineffective assistance of counsel claim.
B. Section 1170, Subdivision (b)(6)
Defendant asserts that he qualifies for the lower-term presumption under section 1170, subdivision (b)(6) because the record shows he suffered from childhood trauma, and it was a contributing factor in his offense. Defendant further maintains the record does not clearly indicate the trial court would have selected the middle term for his assault conviction under the newly amended statute.
Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, §1.3) amended section 1170, requiring sentencing courts to impose the lower term if the defendant "has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence" that was a "contributing factor in the commission of the offense," "unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice." (§ 1170, subdivision (b)(6)(A).)
Defendant refers to Assembly Bill No. 124 (Stats. 2021, ch. 695, §5) in his brief. Senate Bill No. 567, the later-enacted bill, incorporated Assembly Bill No. 124's amendments to section 1170 and is the operative legislation. (Stats. 2021, ch. 731, § 3(c).)
The parties agree, as do we, that the amendments to section 1170, subdivision (b) apply retroactively to a nonfinal case such as defendant's. (People v. Flores (2022) 73 Cal.App.5th 1032, 1039.)
Further, we accept the People's concession that the record indicates defendant suffered childhood trauma, which may have contributed to the instant offense. Defendant was sexually abused as a child and, according to the probation report, continues to suffer from some form of PTSD as a result of that abuse. It is plausible the abuse and the resulting PTSD may have been a contributing factor in the commission of his current offense.
The People acknowledge, as do we, that defendant did not have the benefit of section 1170, subdivision (b)(6). As a result, he had less incentive to fully develop a record on these issues. (See People v. Banner (2022) 77 Cal.App.5th 226, 242, citing People v. Frahs (2020) 9 Cal.5th 618, 637-638.) Moreover, while the trial court acknowledged defendant was himself a victim, the court had no incentive to conduct the analysis required by section 1170, subdivision (b)(6) and assess whether that childhood trauma was a contributing factor to the commission of the crime for which defendant was convicted.
When a sentencing court is unaware of the scope of its discretion, "the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) The record before us does not make it clear the trial court would have imposed the middle term on defendant's assault conviction had section 1170, subdivision (b)(6) been in effect at the time. (People v. Banner, supra, 77 Cal.App.5th at p. 242.)
On remand, defendant, as well as the People, will have the opportunity to present additional evidence and information to allow the trial court to make the necessary inquiry and findings to exercise the discretion afforded by section 1170, subdivision (b)(6). We express no opinion as to how the trial court should exercise its discretion.
III. DISPOSITION
The sentence is vacated, and the matter remanded for resentencing consistent with this opinion. The judgment is otherwise affirmed.
We concur: HULL, Acting P. J., KRAUSE, J.