Opinion
F071364
04-27-2017
THE PEOPLE, Plaintiff and Respondent, v. FERNANDO CASTILLO, Defendant and Appellant.
Carla J. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRM028479)
OPINION
APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge. Carla J. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Following a trial by jury, defendant Fernando Castillo was convicted of attempted murder (Pen. Code, §§ 664, 187, subd. (a)) (count 1) and assault with a flammable substance (§ 244) (count 2). He was sentenced to the lower term of five years for attempted murder and the lower term of two years for assault, stayed pursuant to section 654, for a total determinate term of five years.
Further statutory references are to the Penal Code unless otherwise noted.
On appeal, defendant argues the trial court abused its discretion when it failed to (1) declare a doubt as to his mental competency and hold a second competency hearing pursuant to section 1368, (2) grant his motion for acquittal on the assault count pursuant to section 1118.1 and (3) grant him probation. He also argues the court erred in calculating his presentence custody credits.
The People concede there is an error in defendant's presentence custody credit calculation, but otherwise dispute the merits of his claims.
We agree with the parties that defendant is entitled to an additional two days of custody credits. We also find the trial court erred in failing to grant defendant's motion for acquittal on the assault count and we reverse that conviction. We reject defendant's remaining claims, however, and affirm the judgment in all other respects.
FACTUAL SUMMARY
Defendant lived in Planada in Merced County with his parents, his older brother George and his younger brother Moi. Defendant and George shared the same bedroom in their parents' house but had separate beds. George worked two jobs and testified he and defendant were "[s]omewhat" close, but did not have "much of a relationship" because George worked all the time. He also testified he and defendant "[o]ften" argued and they had some physical altercations because defendant did not help around the house and he talked back to their parents.
We refer to defendant's brothers by their first names since they and defendant share the same last name. No disrespect is intended.
At approximately 5:00 a.m. on July 12, 2013, George was sleeping when he felt liquid hit him. He saw defendant light a match and throw it at him. George then threw a pillow at defendant, which stopped the match. George jumped on defendant and matches fell out of defendant's hand. The two started hitting each other and defendant was mumbling. Their other brother broke up the fight and George called the police. Defendant went outside.
We note George's trial testimony was at times inconsistent or arguably inconsistent with what he reported in his 911 call, what he said to Deputy Chris Chilton and what he testified to during the preliminary hearing, and the parties summarize those inconsistencies, or arguable inconsistencies, in their briefs. As the inconsistences are not relevant to our resolution of the issues raised on appeal, we do not include them herein except where helpful for clarity of the record.
George's body and his bed were covered in the fluid defendant threw, and the fluid bothered his eyes. George testified it "smelled like the lighter fluid," and, during later testimony, he said he could smell it was lighter fluid. The matches the family used to light their stove were "everywhere" just outside the bedroom where defendant had been when he threw the match. One match was "[b]urned out," which George believed was the one he hit with his pillow.
A "good size" hominy can was found on the floor and it was full of the fluid defendant threw on George. Later on, at approximately 6:30 a.m., George found the empty can of the family's lighter fluid can by the barbecue, but he did not call the sheriff's department or mention it during the preliminary hearing.
Defendant's father testified he smelled something "different," but he did not know what it was and it did not smell of gas, as when someone leaves a stove on.
Deputy Chilton responded to George's 911 call. He was speaking with George when he heard the tarp covering a boat in the front yard rustle. Defendant emerged from the boat, where he had been hiding. Chilton "asked him what was going on" and he calmly responded "he was trying to kill his brother" because they did not get along. He also told Chilton he was trying to kill George "[b]y lighting him on fire, [to] get rid of him."
Inside the house, Chilton smelled "Kerosene or gasoline or lighter fluid or something like that." He could smell it in the house, but it was strongest in George's bedroom, and he testified the smell was so "overpowering" he had to leave the room. Chilton also saw a Teasdale Hominy can with approximately four to six ounces of the brown fluid in it and wooden stick matches, some of which had been lit. He testified he found five or more burned matches, but there were no evidence photos other than of one burned match. On cross-examination, Chilton stated he did not remember testifying to a specific number of burned matches on direct examination and the number was not in his report, but he wrote matches rather than match. On redirect, Chilton testified he found matches in the living room and bedroom, and burned matches on the bed.
Chilton spoke with defendant and George, and he took five photographs at the scene, one of which was of the house's street number. He did not gather any physical evidence relating to identification of the liquid, he did not collect any of the matches or bedding, and he did not swab anything or collect any swatches.
After the prosecution rested and the trial court denied defendant's section 1118.1 motion for acquittal of assault with a flammable substance, defendant's counsel, pursuant to stipulation, read into the record a portion of George's 911 call for the purpose of impeaching some of George's statements. During the call, George declined medical attention and said he just needed to shower because "a little" got in his eyes. He stated his brother threw matches at him, but they would not light. He denied taking the matches away and said his brother was "just stupid and ran." When the dispatcher asked if defendant did that kind of thing often, George responded, "Yeah, he does—he does his dumb little things."
DISCUSSION
I. Failure to Declare a Doubt and Hold Second Competency Hearing
Defendant had a long history of mental health issues and, prior to trial, his counsel declared a doubt as to his mental competency pursuant to section 1368. The trial court referred defendant to Dr. Andrew Neufeld, a clinical psychologist, for evaluation. Dr. Neufeld found no evidence defendant was experiencing delusions, hallucinations or ideas of reference, and he concluded defendant was competent to stand trial but not to represent himself. On appeal, defendant argues that prior to sentencing, the trial court "voiced doubts" as to his competency, but then erred in failing to declare its doubt and reexamine his competency. Defendant further argues that the court, the prosecutor and defense counsel apparently "believed that because [defendant] had been found competent to stand trial, their hands were tied."
The People respond that the trial court was not, in the remarks relied on by defendant, voicing doubts as to defendant's competency nor was there substantial evidence raising a doubt as to defendant's competency.
A. Standard of Review
Due process forbids criminal prosecution of a person who is mentally incompetent. (Pate v. Robinson (1966) 383 U.S. 375, 378; People v. Mickel (2016) 2 Cal.5th 181, 194-195 (Mickel).) The constitutional test is whether the defendant "'has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.'" (Dusky v. United States (1960) 362 U.S. 402; accord, Mickel, supra, at p. 195.)
Paralleling this constitutional directive, under California law, "[a] person cannot be tried or adjudged to punishment or have his or her probation, mandatory supervision, postrelease community supervision, or parole revoked while that person is mentally incompetent. A defendant is mentally incompetent for purposes of this chapter if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." (§ 1367, subd. (a).)
Section 1368 further provides:
"(a) If, during the pendency of an action and prior to judgment, or during revocation proceedings for a violation of probation, mandatory supervision, postrelease community supervision, or parole, a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. If the defendant is not represented by counsel, the court shall appoint counsel. At the request of the defendant or his or her counsel or upon its own motion, the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time.
"(b) If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369. If counsel informs the court that he or she believes the defendant is mentally competent, the court may nevertheless order a hearing. Any hearing shall be held in the superior court."
Where, as here, "'a competency hearing has already been held and the defendant has been found competent to stand trial ... a trial court need not suspend proceedings to conduct a second competency hearing unless it "is presented with a substantial change of circumstances or with new evidence" casting a serious doubt on the validity of that finding.' [Citations.]
'"When defense counsel has presented substantial evidence [that is, evidence from which a reasonable jurist would entertain a bona fide doubt concerning competency,] that a defendant is incompetent to stand trial, the trial court must declare a doubt as to the defendant's competence and suspend proceedings even if the court's own observations lead it to believe the defendant is competent. [Citation.] But when ... a competency hearing has already been held, the trial court may appropriately take its personal observations into account in determining whether there has been some significant change in the defendant's mental state.' [Citations.]
"At the same time, of course, '[e]ven when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial.'" (People v. Mendoza (2016) 62 Cal.4th 856, 884-885 (Mendoza); accord, People v. Shiga (2016) 6 Cal.App.5th 22, 42 (Shiga).)
B. Analysis
We find no support in the record for defendant's assertions regarding his lack of competency. The record instead contradicts his characterization of the court's comments as suggesting it had doubts regarding his competency, either during trial or at sentencing. Nor is there support for the contention that the court and the parties believed they were constrained by the prior competency determination.
The court stated as follows: "There are unusual circumstances, his mental health, his mental illness, he does have a mental illness and a long history of mental illness. He has a long history of psychological impairments. He hasn't—when you look at him and watch him and his interaction he seems so blasé. There isn't an affect to him. That is not—would not appear to be normal and healthy. And I believe he probably has some developmentally—developmental limitations or disabilities.
"But I counter that with—this was a very serious offense and he is a danger to his family. He's a danger to others. So I don't know what I'm going to do on that, but I think—what I would like to do is I'm—what I am going to do is I find that [defendant] in order to try and reach a just disposition in this case, is going to be referred to the Department of Corrections for a—up to a 90-day evaluation report under ... section 1203.03, and the director shall evaluate [defendant] and make a recommendation back to the Court. Maybe there is a hospital that can take [defendant]."
This discussion occurred at the first sentencing hearing and it evidences the court's attempt to balance defendant's mental health issues with the seriousness of the crime to arrive at a just disposition. Given these competing considerations, the trial court continued the sentencing hearing and referred defendant to the California Department of Corrections for a diagnostic evaluation not to exceed 90 days, pursuant to section 1203.03, subdivision (a).
As well, we find no evidence in the record of a substantial change in circumstances that should have raised a doubt in the court's mind regarding defendant's competency. (Mickel, supra, 2 Cal.5th at p. 197.) Since defendant's competence was evaluated prior to trial by Dr. Neufeld, he must show a change in circumstances occurred after that evaluation. Defendant cannot logically rely on older psychiatric reports and interviews that predate the criminal proceedings in this case and Dr. Neufeld's competency evaluation. (Mendoza, supra, 62 Cal.4th at p. 884.) His citation to evidence contained in those reports and interviews is therefore unpersuasive.
Defendant cites to an interview with his sister from 2003, psychiatric reports from 2007 and 2008, and a police report relating to an arrest for public intoxication several weeks before he committed the crimes against George.
The letters and oral requests by defendant's family for placement in a mental health facility rather than state prison also do not evidence a mental deterioration between the time of Dr. Neufeld's evaluation and the initial sentencing hearing. (Mickel, supra, 2 Cal.5th at pp. 203-204.) Finally, neither the probation report, in which the probation officer documented defendant's inconsistent answers to questions, apparent lack of perception regarding the seriousness of the charges and his flat affect, nor the court's observation regarding defendant's "blasé" demeanor constituted new evidence indicating a present inability to understand the proceedings or assist his counsel. (People v. Nelson (2016) 1 Cal.5th 513, 559-560; Mendoza, supra, 62 Cal.4th at pp. 885-890.)
Dr. Neufeld's evaluation addressed defendant's affective presentation. Although not inappropriate or bizarre, Dr. Neufeld noted "evidence of at least a mild disturbance of process of thinking." However, it "did not interfere with his understanding" of the proceedings against him or his ability to cooperate with counsel.
We find defendant's reliance on People v. Kaplan (2007) 149 Cal.App.4th 372, 376 (Kaplan) and People v. Murdoch (2011) 194 Cal.App.4th 230, 239 (Murdoch) of no assistance to him. In Kaplan, in relevant part, the defendant was evaluated by Dr. Sharma and Dr. Rogers prior to the preliminary hearing and found to be competent. (Kaplan, supra, at pp. 377-378.) Almost one year later, the defendant's counsel expressed doubts about his competency and the trial court again appointed Dr. Sharma and Dr. Rogers to evaluate the defendant. (Id. at p. 379.) Although Dr. Sharma found him competent (id. at pp. 379-380), the Court of Appeal concluded that Dr. Rogers's report "constituted the requisite substantial evidence as it showed a substantial change of circumstances had occurred" (id. at p. 386). As such, the trial court erred when it failed to conduct a second competency hearing. (Id. at p. 387.)
To the extent defendant is relying on Kaplan for more than general principles of law relating to competency hearings, that basis is not clear from his brief and we are unable to discern any basis for drawing a factual analogy. Unlike in Kaplan, Dr. Neufeld's report finding defendant competent to stand trial was not superseded by any subsequent report of incompetence, nor did defense counsel express further doubts regarding his competence. (Kaplan, supra, 149 Cal.4th at pp. 386-387.)
In Murdoch, the defendant was deemed competent when he was examined by two doctors prior to trial, but both doctors documented issues with medication compliance and "warned of decompensation if [he] continue[d] to refuse medication." (Murdoch, supra, 194 Cal.App.4th at p. 237.) The trial court subsequently granted the defendant the right to represent himself and, at trial, he defended against the charges on the basis that the victim and a witness were not human. (Id. at p. 234.) He explained to the trial court that as nonhumans, they did not have shoulder blades and would not be able to shrug their shoulders as a result. (Ibid.) When the victim was able to shrug his shoulders on the witness stand at the defendant's request, the defendant deemed him not to be "'the man that [he] believe[d] attacked [him].'" (Id. at p. 235.) He did not cross-examine the witness. (Ibid.)
It was known to the trial court that the defendant was severely mentally ill, was not complying with his medication regimen, and would decompensate and become incompetent without medication (Murdoch, supra, 194 Cal.App.4th at p. 238); and the defendant offered a bizarre defense that was not feigned or "the result of sheer temper" (id. at p. 239). Under those circumstances, the Court of Appeal found the trial court's failure to conduct another competency hearing was error.
In this case, defendant tried to light his brother on fire and then explained he wanted his brother to move out. Such an extreme and violent act is not rational nor is the explanation for it reasonable, as defendant argues, but both fall well short of evidencing the type of delusional state at issue in Murdoch.
We are also unpersuaded by defendant's attempt to draw an analogy between Dr. Neufeld's finding that he was not competent to represent himself and the defendant's "fragile" competence in Murdoch. (Murdoch, supra, 194 Cal.App.4th at p. 237.) There is simply no evidence in the record, viewed separately or cumulatively, that defendant's mental state deteriorated after Dr. Neufeld's evaluation. Moreover, competency to stand trial and competency to self-represent are different issues and, in recognition of that distinction, Dr. Neufeld made findings defendant was competent to stand trial, but not competent to self-represent. (Indiana v. Edwards (2008) 554 U.S. 164, 174, 177-178; Mickel, supra, 2 Cal.5th at pp. 206-207; Shiga, supra, 6 Cal.App.5th at p. 39.) Thus, we do not agree that Dr. Neufeld's distinction between the two in his report suggested fragile competency akin to that at issue in Murdoch.
It is clear from the record that defendant had a history of mental health issues predating his crimes against George, and those issues were recognized by the trial court, the prosecutor and defense counsel. However, defendant was evaluated pursuant to section 1368 and found competent to stand trial. Defendant points to nothing in the record indicating "'"a substantial change of circumstances or ... new evidence" casting a serious doubt on the validity of that finding.'" (Mendoza, supra, 62 Cal.4th at p. 884.) We conclude that at no time after Dr. Neufeld's pretrial evaluation was the trial court presented with substantial evidence that defendant was incompetent. (Mickel, supra, 2 Cal.5th at pp. 201-202, 204.) Accordingly, we reject defendant's claim that the trial court's failure to declare a doubt as to his competency and refer him for a second competency evaluation was an abuse of discretion. (Id. at pp. 193, 204.)
II. Sufficiency of the Evidence Supporting Assault Conviction
Next, defendant argues the trial court erred in denying his motion for acquittal and his assault conviction must be reversed because there is insufficient evidence the liquid he threw on George was a flammable substance as defined in section 244. The People contend there is sufficient circumstantial evidence the liquid was flammable.
A. Standard of Review
"In considering whether the trial court erred in failing to grant the motion for judgment of acquittal under section 1118.1 ..., we ask whether 'there is any substantial evidence, including all reasonable inferences to be drawn from the evidence, of the existence of each element of the offense charged.'" (People v. Watkins (2012) 55 Cal.4th 999, 1019.) On appeal, "we review the record 'in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'" (Ibid.) The relevant inquiry governing a challenge to the sufficiency of the evidence "'is whether ... any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055, cert. den. (2016) ___ U.S. ___ .) We "presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (People v. Zamudio (2008) 43 Cal.4th 327, 357.) "'[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt ....'" (People v. Nguyen, supra, at pp. 1055-1056.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio, supra, at p. 357.)
B. Analysis
Defendant was convicted of violating section 244, which provides: "Any person who willfully and maliciously places or throws, or causes to be placed or thrown, upon the person of another, any vitriol, corrosive acid, flammable substance, or caustic chemical of any nature, with the intent to injure the flesh or disfigure the body of that person, is punishable by imprisonment in the state prison for two, three or four years.
"As used in this section, 'flammable substance' means gasoline, petroleum products, or flammable liquids with a flashpoint of 150 degrees Fahrenheit or less." (§ 244.)
At the close of the prosecution's case in chief, defendant moved for judgment of acquittal on the assault count for lack of sufficient evidence as to the flammable liquid. (§ 1118.1.) No evidence of the flashpoint for lighter fluid, or for any other flammable liquid, had been presented and the prosecutor conceded he did not know. Although the trial court was aware of the statutory definition of flammable substance, it denied the motion, explaining, "I understand the argument. I just—I think flash point is—I have to give it its common meaning, which means when it would ignite, I think flash point means ignition, and that it would ignite with 150-degree Fahrenheit or less. So assuming that would be anything from an ambient temperature to 150 degrees, somewhere in there. I think the jury can make that finding."
After a break, the prosecutor told the judge he looked up a couple of different lighter fluids and the flashpoint was "around 105, 110 degree[s]." He requested judicial notice of the flashpoint, but the court denied the request because "[i]t's not something you take judicial notice of."
The jury was subsequently instructed, pursuant to CALCRIM No. 877, as follows: "The defendant is charged in Count 2 with throwing caustic chemicals on someone else in violation of Penal Code section 244.
"To prove that the defendant is guilty of this crime, the People must prove that: One, the defendant willfully and maliciously threw any flammable substance on someone else; and two, when the defendant acted, he intended to injure the flesh of or disfigure the other person's body.
"A flammable substance includes gasoline, petroleum products or flash liquids with a flashpoint of 150 degrees Fahrenheit or less."
We agree with the People that there is sufficient evidence that defendant threw lighter fluid on George and that lighter fluid is flammable. George testified they barbecued a lot at their house, he had lit the barbecue before and based on its distinctive smell, the substance his brother doused him with was lighter fluid. He also testified that later that morning, he found an empty can of lighter fluid in the kitchen.
There was also evidence defendant lit at least one match and threw it toward George after dousing him with the lighter fluid, and defendant admitted he was trying to light George on fire to get rid of him. Moreover, that lighter fluid is, by its very nature, flammable is common knowledge; its purpose lies in its flammability and neither courts nor jurors are required under the law to suspend their common sense. (See People v. Davis (2013) 57 Cal.4th 353, 360; Gray v. County of Madera (2008) 167 Cal.App.4th 1099, 1116-1117.) Despite defendant's argument to the contrary, it is immaterial that he did not succeed in igniting his fluid-covered brother, as the statute requires only the throwing or placement of the flammable substance on another with the intent to injure or disfigure.
Had the statute not more precisely defined "flammable substance," our inquiry would be over. However, the finer point here is whether the evidence adduced was sufficient to support the jury's finding that defendant threw a flammable liquid with a flashpoint of 150 degrees Fahrenheit or less. The People neglect to address that issue.
The parties do not advance any argument section 244 is ambiguous and "[i]f there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs." (Day v. City of Fontana (2001) 25 Cal.4th 268, 272; In re Gilbert R. (2012) 211 Cal.App.4th 514, 519.) We observe the statute was amended in 1995 to include the term "flammable substance" and to define the term as "gasoline, petroleum products, or flammable liquids with a flashpoint of 150 degrees Fahrenheit or less." (Stats. 1995, ch. 468, § 1.) The amendment was the result of a domestic incident during which a husband soaked his wife with gasoline. (Assem. Com. on Public Safety, Analysis of proposed amendment to Assem. Bill No. 207 (1995-1996 Reg. Sess.) Mar. 28, 1995, p. 1.) He was charged with corporal injury to a spouse (§ 273.5, subd. (a)), but had they not been married or cohabitating, or shared a child in common, the domestic violence law would not have applied. (Assem. Com. on Public Safety, supra, com. on Assem. Bill No. 207 at p. 1, ¶ 1.) The proposed amendment "close[d] ... a loophole in ... section 244" and allowed for the prosecution of "a person[] who douses their victim with gasoline but fails to engulf them in flames." (Id. at p. 2, ¶ 6.) The inclusion of language "narrow[ing] its application to gasoline or petroleum products, and/or flammable liquids with a flashpoint of 150 degrees Fahrenheit or less" was in response to concern the bill was "overboard and unnecessary." (Id. at p. 2, ¶ 4.)
"The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense." (Carella v. California (1989) 491 U.S. 263, 265, citing In re Winship (1970) 397 U.S. 358, 364.) Here, the prosecution was required to prove defendant threw a flammable substance as defined by the statute. The flashpoint of lighter fluid cannot be deemed a matter of common knowledge (People v. Davis, supra, 57 Cal.4th at p. 360), and "mere speculation cannot support a conviction" (People v. Marshall (1997) 15 Cal.4th 1, 35). Because there was no evidence on which the jury could have relied to find the flashpoint for lighter fluid, the prosecution failed to meet its burden of proof on that element.
There was no evidence the liquid was a petroleum product, and there was insufficient evidence it was gasoline or a flammable liquid other than lighter fluid with a flashpoint of 150 degrees Fahrenheit or less. Nor do the People contend otherwise.
Therefore, we find the trial court abused its discretion in denying defendant's section 1118.1 motion for acquittal on the assault count and the conviction must be reversed. As double jeopardy bars retrial of the charge, the trial court shall enter a judgment of acquittal. (Porter v. Superior Court (2009) 47 Cal.4th 125, 132-133; People v. Belton (1979) 23 Cal.3d 516, 527.)
III. Denial of Probation
Defendant also challenges the trial court's decision not to grant him probation. He argues the court was unaware of the scope of its discretion to do so, which resulted in its failure to exercise its discretion in an informed manner. Defendant further argues that on the merits, it was an abuse of discretion to deny probation. We do not agree.
Given our rejection of this claim, discussed post, we do not address whether counsel's failure to object resulted in forfeiture of this claim and if so, whether counsel rendered ineffective assistance of counsel.
A. Standard of Review
"Following a defendant's conviction of a crime, the sentencing court may choose among a variety of dispositional options. One option is to release the offender on probation. 'Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation.' [Citation.] A grant of probation is 'qualitatively different from such traditional forms of punishment as fines or imprisonment. Probation is neither "punishment" (see § 15) nor a criminal "judgment" (see § 1445). Instead, courts deem probation an act of clemency in lieu of punishment [citation], and its primary purpose is rehabilitative in nature [citation].' [Citation.] Accordingly, we have explained that a grant of probation is an act of grace or clemency, and an offender has no right or privilege to be granted such release. [Citation.] Stated differently, '[p]robation is not a right, but a privilege.'" (People v. Moran (2016) 1 Cal.5th 398, 402 (Moran).)
"[I]n most circumstances the trial court has broad discretion to choose probation when sentencing a criminal offender. A reviewing court will defer to such choice absent a manifest abuse of that discretion." (Moran, supra, 1 Cal.5th at p. 402.) "To establish abuse, the defendant must show that, under all the circumstances, the denial of probation was arbitrary, capricious or exceeded the bounds of reason." (People v. Bradley (2012) 208 Cal.App.4th 64, 89.) "In reviewing the matter on appeal, a trial court is presumed to have acted to achieve legitimate sentencing objectives in the absence of a clear showing the sentencing decision was irrational or arbitrary." (People v. Martinez (1985) 175 Cal.App.3d 881, 896, abrogated on other grounds by amendment to Cal. Rules of Court, rule 4.406(b).)
"'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.] In such circumstances, we have held that 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 (Gutierrez).)
B. Analysis
1. First Sentencing Hearing
During the first sentencing hearing, prior to the court's decision to refer defendant for a diagnostic evaluation pursuant to section 1203.03, the following exchange occurred:
"THE COURT: "On the issue of probation, I believe the correct standard is he's ineligible for probation except upon a showing of unusual circumstances or unusual case. I think that's under [section] 1203[, subdivision ](e)(1) or ... (e)(4).
"[DEFENSE COUNSEL]: I believe that's the correct standard, Judge.
"[PROSECUTOR]: I just want to be sure that restriction applies.
"[DEFENSE COUNSEL]: I think it's [section] 1203[, subdivision ](e)(2).
"THE COURT: It may be [section 1203, subdivisions] (e)(1) and (e)(2).
"[DEFENSE COUNSEL]: Yeah, [section 1203, subdivision] (e)(1) could also qualify, that may also apply. May I continue?"
After further discussion on the record, the prosecutor requested to approach. At the conclusion of the sidebar conversation, proceedings continued as follows:
"THE COURT: I guess we'll create an issue for appeal, if necessary. The Court is familiar with the facts in this case.
"[PROSECUTOR]: The probation limitation—
"THE COURT: I wonder, you know—that finding whether or not that has to be made by the trier of fact.
"[PROSECUTOR]: I don't think it does. I note there's Blakely and Cunningham. I don't think that—I don't think it's a finding—
"THE COURT: I think I can look into this a little further, I don't have to make that finding. He might be eligible for probation is what the People are advising unless I make a finding that a deadly weapon was used.
"[PROSECUTOR]: Correct. Those are the only ... restrictions I'm aware of at the time.
"THE COURT: Right.
"[PROSECUTOR]: Those would make him presumptively ineligible. He would be still obviously eligible under extraordinary circumstances.
"THE COURT: There are unusual circumstances, his mental health, his mental illness, he does have a mental illness and a long history of mental illness. He has a long history of psychological impairments. He hasn't—when you look at him and watch him and his interaction he seems so blasé. There isn't an affect to him. That is not—would not appear to be normal and healthy. And I believe he probably has some developmentally—developmental limitations or disabilities.
"But I counter that with—this was a very serious offense and he is a danger to his family. He's a danger to others. So I don't know what I'm going to do on that, but I think—what I would like to do is I'm—what I am going to do is I find that [defendant] in order to try and reach a just disposition in this case, is going to be referred to the Department of Corrections for a—up to a 90-day evaluation report under Penal Code section 1203.03, and the director shall evaluate [defendant] and make a recommendation back to the Court. Maybe there is a hospital that can take [defendant]."
Blakely v. Washington (2004) 542 U.S. 296; Cunningham v. California (2007) 549 U.S. 270.
We previously addressed this statement as it related to defendant's competency and entitlement to a second section 1368 hearing. We repeat it here given its direct relevance to defendant's challenge to the denial of probation.
2. Second Sentencing Hearing
At the subsequent sentencing hearing, the court did not make any reference to section 1203, subdivision (e), and did not make any findings regarding a deadly weapon but it stated, "Anyway, the Court does understand that [defendant] is eligible for probation, but there have to be unusual circumstances presented. The unusual circumstances argued are his mental and psychological history." After some discussion of defendant's history and the facts underlying his crimes, the parties requested to approach. Following a sidebar discussion, the court stated, "Even if he's eligible for probation and does not fall within the unusual circumstances criteria, I still find that he should be denied probation because of the seriousness of the offense and the danger that he has presented to his family, and so probation is denied."
3. Awareness of Scope of Discretion
As defendant points out, despite discussion of it during the first sentencing hearing, the trial court did not make a finding he was armed with a deadly weapon or used a deadly weapon. (§ 1203, subd. (e)(1) & (2).) Had it done so, defendant would have been statutorily ineligible for probation unless the court found his situation presented an "unusual case where the interests of justice would best be served" by granting him probation. (§ 1203, subd. (e).) The court's discussion of unusual circumstances suggests it was addressing probation within the context of section 1203, subdivision (e). However, the court considered him eligible for probation because unusual circumstances existed. The court also separately assumed he was eligible for probation and "the unusual circumstances criteria" did not apply. Under both approaches, it denied defendant probation based on the seriousness of his offense and the danger he presented to his family members.
Given the court's denial of probation in either instance, we find no support in the record for defendant's argument that the trial court was unaware of the scope of its discretion to grant him probation. We also find no support in the record for the argument that the outcome would have been different, even if we assume some lack of clarity on the court's part regarding the scope of its discretion. Under such circumstances, there is no entitlement to a new sentencing hearing. (See Gutierrez, supra, 58 Cal.4th at pp. 1390-1391 [remand for resentencing appropriate where there was a presumption under the law at the time of sentencing favoring life without parole and record did not indicate courts would have imposed same sentence had they been aware of the scope of their discretion]; People v. Bolian (2014) 231 Cal.App.4th 1415, 1422 [court's erroneous statement it would be "'illegal and improper'" to follow probation officer's recommendation evidenced unawareness of scope of discretion]; People v. Marquez (1983) 143 Cal.App.3d 797, 803-804 [remand for resentencing required where court and parties apparently unaware of then existing Cal. Rules of Court, rule 416, under which the court had discretion to grant probation].)
4. No Abuse of Discretion
We also find no abuse of discretion when we consider the trial court's decision on its merits.
Defendant contends the court failed to consider fully the effect of his mental illness and its relation to his crimes. We disagree. The court considered the probation report, along with prior evaluations and reports relating to defendant's mental health issues. That documentation included information on defendant's mental health during his commission of arson in November 2002 and assault in June 2007, Dr. Blak's July 2007 evaluation and conclusion defendant was not competent to stand trial on the arson and assault charges, and Dr. Benson's July 2007 psychiatric report and recommendation regarding medication., The court also considered letters of support from defendant's family and friends, and it heard from defendant's family regarding their plan for him to live with his sister, who is a licensed vocational nurse and would ensure he took his medication.
Defendant burned down his family's house and got into a physical altercation with his father, resulting in misdemeanor arson and misdemeanor assault charges. Although the crimes occurred approximately four and one-half years apart, the charges were tried together in June 2008.
After defendant was deemed incompetent by Dr. Blak, he was sent to Atascadero State Hospital. In April 2008, hospital staff found defendant competent to stand trial, with no clinical need for psychiatric medication. Staff also found he was not suffering from hallucinations or delusions, he was malingering and frequently untruthful, and his lack of clinical need for medication was consistent with psychosis induced by amphetamine use. The reviewer noted defendant was not forthcoming about his drug use and that if more information became available, a diagnosis of amphetamine dependence rather than amphetamine abuse might be more appropriate. As a result, the reviewer recommended that if defendant appeared confused or assaultive in the future, a drug screen be conducted before another cause was assumed. This report also part of the record.
We presume the court considered all relevant factors unless the contrary is affirmatively shown (People v. Kelley (1997) 52 Cal.App.4th 568, 582), and here, the trial court stated it reviewed the probation report, defendant's sentencing memorandum and the placement report it requested pursuant to section 1203.03. Its comments during sentencing also reflect its careful consideration of defendant's mental health issues and the nature of his present offenses. Thus, we find no support for defendant's assertion that the court "failed to consider the full extent of [his] mental illness"; defendant merely disagrees with the decision and that does not suffice to meet his burden of demonstrating error on appeal. (Moran, supra, 1 Cal.5th at p. 402; People v. Bradley, supra, 208 Cal.App.4th at p. 89.) The trial court did not abuse its discretion in denying probation and we reject defendant's claim to the contrary.
IV. Custody Credits
Finally, defendant contends he is entitled to an additional two days of presentence custody credits. The People concede this issue.
An appellate court may resolve presentence credit calculation issues if doing so will serve the interests of judicial economy (People v. Jones (2000) 82 Cal.App.4th 485, 493), but it is the appellant's burden to affirmatively demonstrate his entitlement to credit for any particular time period (People v. Jacobs (2013) 220 Cal.App.4th 67, 81). He has done so.
Defendant was arrested on July 12, 2013, and sentenced on February 6, 2015. The trial court awarded him 659 days in total credits, 573 days of custody credit and 86 days of conduct credit. (§§ 2900.5, 2933; Cal. Rules of Court, rule 4.472.) The parties assert defendant was entitled to 575 days of custody credit, for a total of 661 days presentence custody credit. We agree and shall order the modification.
Because defendant was convicted of attempted murder, he was subject to a 15 percent limitation on conduct credit. (§ 2933.1, subd. (a).)
DISPOSITION
The conviction for assault with a flammable substance is reversed and the trial court shall enter a judgment of acquittal. The trial court is also ordered to prepare an amended abstract of judgment with service to all appropriate agencies reflecting the following modification: defendant is awarded 575 days of actual custody and 86 days of conduct credit for a total of 661 days of presentence credit. In all other respects, the judgment is affirmed.
/s/_________
KANE, Acting P.J. WE CONCUR: /s/_________
FRANSON, J. /s/_________
SMITH, J.