Opinion
A162808
06-29-2022
THE PEOPLE, Plaintiff and Respondent, v. ALAN JUNIOR COMB, Defendant and Appellant.
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CR955324
STREETER, ACTING P.J.
Appellant Alan Junior Comb appeals from a criminal protective order following his plea of no contest to making criminal threats, being a felon in possession of a firearm and stalking after issuance of a restraining order. He was sentenced to three years and eight months in state prison. The criminal protective order included two people: the victim, and the victim's mother, a percipient witness to the incident. On appeal, Comb argues that the record lacks substantial evidence to support including the victim's mother (F.C.) in the protective order. His briefing on appeal concedes his trial counsel failed to object but invites us to overlook the forfeiture on various grounds. We decline to do so and conclude that Comb's attack on the protective order was forfeited. But seeing some potential merit to an argument raised by a supplemental brief that Comb's sentence should be vacated, and the case remanded for resentencing in light of certain recent legislation, we will grant that relief. In all other respects, we affirm the judgment.
I. BACKGROUND
Comb and the victim (R.C.) were married. On the night of August 23, 2019, sheriff's deputies responded to a report of domestic violence at their residence. Comb, who was intoxicated, placed R.C. in a headlock and groped her breasts. R.C. locked herself in the bathroom to escape, but Comb forcibly broke open the door. He grabbed her by the neck, lifted her off the floor, and bashed her head against the wall. R.C. escaped again and locked herself in the bedroom where she called 911. Comb attempted to break into the bedroom while stating, "If you don't let me in, I'm going to burn down this house."
In her victim impact statement read at sentencing, R.C. told the court that "[h]e shouted that he was going to burn the house down." At which point, R.C. screamed loudly for her mother to get away to safety. When R.C. jumped out of the bedroom window, she found her mother waiting "just outside." Both women ran into the RV parked next to the house to hide. R.C. returned to her residence when the sheriff arrived and helped the deputies locate a handgun that Comb possessed. The handgun was loaded with 10 live rounds of ammunition.
R.C. told the court that Comb "continued to stalk me and my family in the 16 months he was free since his initial arrest". R.C. requested a 10-year protection order for herself and "my elderly, disabled mother" who has "also suffered terribly from the impact of Alan's actions."
Comb was charged with one count each of inflicting corporal injury resulting in traumatic condition upon a spouse (Pen. Code, § 273.5, subd. (a)); making criminal threats (§ 422, subd. (a)); being a felon in possession of a firearm (§ 29800, subd. (a)(1)); being a felon in possession of ammunition (§ 30305, subd. (a)(1)); and stalking after issuance of a restraining order (§ 646.9, subd. (b)).
All statutory references are to the Penal Code unless otherwise noted.
Comb pleaded no contest to making criminal threats, being a felon in possession of a firearm, and stalking after issuance of a restraining order. The trial court sentenced Comb to three years eight months in state prison and issued a criminal protective order restraining him from contacting or coming within 100 yards of R.C. and F.C. for ten years. Comb timely appealed.
II. DISCUSSION
Comb contends it was error to include F.C. in the criminal protective order because the record lacks substantial evidence to support the trial court's implied finding that she was a percipient witness under section 136.2, subdivision (i)(2). Comb acknowledges his trial counsel failed to object to the protective order at the sentencing hearing, but contends this newly raised claim is not subject to forfeiture on appeal because his sentence was unauthorized, or, alternatively, his counsel was constitutionally ineffective. We disagree with both contentions for the reasons explained below.
A. Comb's Sentence Was Authorized
Comb contends his attack on the protective order is cognizable on appeal without an objection below because the record lacks sufficient evidence to support the trial court's finding that he harassed F.C. and thus the court was not authorized to add F.C. to the protective order. We are not persuaded.
Although as a general rule, an appellant waives issues on appeal that he did not initially raise below, a limited exception exists when a trial court has imposed an unauthorized sentence. (People v. Scott (1994) 9 Cal.4th 331, 354.) "[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance[s] in the particular case. Appellate courts are willing to intervene in the first instance because such error is 'clear and correctable' independent of any factual issues presented by the record at sentencing." (Ibid.)
The unauthorized sentence exception is inapplicable because, as set forth below, the trial court acted within its discretion to issue the protective order restraining Comb from contacting F.C. Moreover, his claim would require the court to examine factual findings in the record to determine whether Comb harassed F.C. Thus, the issue he wishes to raise is not a "pure question[] of law that can be resolved without reference to the particular sentencing record developed in the trial court." (People v. Welch (1993) 5 Cal.4th 228, 235.)
B. Comb Received Effective Assistance of Counsel
The second, alternative prong of Comb's suggestion that we address his attack on the protective order despite his failure to preserve it in the trial court is equally unpersuasive. A criminal defendant is deprived of due process when his counsel's performance is constitutionally deficient, and that performance prejudiced him. (Strickland v. Washington (1984) 466 U.S. 668.) A court need not determine whether counsel's performance was deficient before examining the prejudice element. (Id. at p. 697.) "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." (Ibid.) Comb cannot satisfy the prejudice requirement because the protective order properly included F.C. as a percipient witness.
Section 136.2, subdivision (i)(2) allows a sentencing court to issue a protective order restraining a defendant convicted of a domestic violence crime as defined by section 13700 from contacting a percipient witness to the crime, "if it can be established by clear and convincing evidence that the witness has been harassed . . . ." (§ 136.2, subd. (i)(2).)
For the purposes of this section, "harassment" is defined as "[u]nlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose." (Code Civ. Proc., § 527.6, subd. (b)(3).) A "credible threat of violence" is "a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose." (Code Civ. Proc., § 527.6, subd. (b)(2).) "[I]n determining whether to issue a criminal protective order pursuant to section 136.2, a court may consider all competent evidence before it." (People v. Race (2017) 18 Cal.App.5th 211, 220.)
To evaluate this claim, we apply the substantial evidence standard, which requires us to review the whole record in the light most favorable to the judgment to determine whether it contains evidence that is "reasonable, credible, and of solid value, from which a rational trier of fact could find [the elements of the crime] beyond a reasonable doubt." (In re O.D. (2013) 221 Cal.App.4th 1001, 1009.)
We find substantial evidence in the record to support a finding that Comb made a credible threat of violence to F.C. when he threatened to burn down the house during his domestic dispute with R.C. while F.C. was also present in the house. In his reply brief, Comb agrees with the Attorney General that F.C. would qualify for protection as a percipient witness if she heard Comb threaten to burn down the house. He also agrees that evidence in the record places F.C. at the scene of the domestic violence dispute. Yet he argues that to conclude F.C. actually heard Comb threaten to burn down the house is "an act of speculation." We disagree.
In her victim impact statement read at sentencing, R.C. stated that when she locked herself in the bedroom, Comb "shouted" that he was going to burn down the house. R.C. then yelled out for her mother to get away to safety. When R.C. jumped out of the bedroom window, her mom was waiting for her outside. The fact that F.C. heard her daughter's warning to get away to safety supports the inference that F.C. lived with Comb and R.C. was at least present in the house during the dispute. Based on R.C.'s statement that Comb "shouted" that he would burn down the house, the trial court could have reasonably inferred that anyone inside the house would have heard the threat. Comb's contention that his acts were directed at R.C., not F.C., is beside the point because the statute provides that a credible threat is one that would "place a reasonable person in fear for his or her safety, or the safety of his or her immediate family." (Code Civ. Proc., § 527.6, subd. (b)(2).)
Based on the evidence presented at the sentencing hearing, the trial court could have reasonably concluded that F.C. was in the house during the dispute and was placed in fear for her or her daughter's safety when Comb threatened to burn down the house. That is enough to qualify her for protection as a percipient witness of domestic violence along with R.C. Because Comb has not demonstrated prejudice, we need not consider whether trial counsel's performance was deficient.
C. Comb Is Entitled to Resentencing Under Senate Bill No. 567
Comb contends in a supplemental brief that we should remand for resentencing in light of two recent legislative enactments. He points to Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567) and Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Assembly Bill 124), both of which took effect on January 1, 2022. He argues that both bills amended our determinate sentencing laws, specifically section 1170, subdivision (b), by establishing a presumption in favor of the lower term in triad sentencing in certain circumstances. This new legislation, he argues, may apply retroactively to his stalking conviction. The Attorney General did not seek leave to submit a responding brief.
We note at the outset that Comb incorrectly refers to both Senate Bill 576 and Assembly Bill 124 as having amended Penal Code section 1170, subdivision (b). As we read the legislation, however, it is Senate Bill 567 that effected the amendment he claims is relevant here by adding subdivision (b)(6) to the statute. (Stats. 2021, ch. 731, §§ 1.3, 3(c).) Senate Bill 567, Assembly Bill 124, and one other bill (Assembly Bill No. 1540 (2021- 2022 Reg. Sess.) (Assembly Bill 1540)), all three of which were introduced in the first year of the 2021-2022 legislative term, proposed various changes to the Penal Code, including amendments to section 1170. All of these bills were passed by the Legislature in September 2021 and approved by the Governor on October 8, 2021. (See Stats. 2021, ch. 695, § 5 [Assembly Bill 124], effective Jan. 1, 2022; Stats. 2021, ch. 719, § 2 [Assembly Bill 1540], effective Jan. 1, 2022; Stats. 2021, ch. 731, § 1.3 [Senate Bill 567], effective Jan. 1, 2022.) The three bills overlapped in that they proposed similar but not identical amendments to section 1170. But because Senate Bill 567 was the last bill signed by the Governor and bears the highest chapter number, its amendments to section 1170, subdivision (b) prevail over the amendments to that code section specified in the other two bills. (Gov. Code, § 9605, subd. (b); In re Thierry S. (1977) 19 Cal.3d 727, 738-739.)
The amendment to section 1170, subdivision (b)(6), made by Senate Bill 567 appears to be relevant to this case. It creates a presumption in favor of imposing the lower sentence term if a defendant has experienced psychological, physical, or childhood trauma, including neglect and abuse, that was a contributing factor in the commission of the offense, "unless the court finds that the aggravating circumstances outweigh the mitigating circumstances [so] that imposition of the lower term would be contrary to the interests of justice." (Stats. 2021, ch. 731, §§ 1.3, 3(c), adding § 1170, subd. (b)(6), by amendment.) Our colleagues in Division 5 recently held in People v. Flores (2022) 73 Cal.App.5th 1032, 1039, that the amended section 1170, subdivision (b) applies retroactively as an ameliorative change in the law applicable to all nonfinal convictions on appeal. The Flores court further held that remand for resentencing, rather than the Court of Appeal's retroactive application of the amended statutes in the first instance, is the appropriate remedy. (Flores, at p. 1039.)
Here, the judgment is not yet final. The Attorney General, in a supplemental brief submitted to us just before oral argument-and that we now accept for filing-concedes that section 1170, subdivision (b) as amended by Senate Bill 567 is retroactive and that, as a result, remand is appropriate in accordance with Flores. We agree. The trial court, applying the pre-Senate Bill 567 version of section 1170 imposed the middle term for the count 5 stalking conviction. In a probation report, Comb stated that he was a" 'Ward of Courts,' suffered from neglect and abuse, and came from a dysfunctional household." Although the trial court made no finding that any trauma Comb may have experienced was a contributing factor in the commission of the stalking offense, there was no reason to do so under the prior sentencing law. Thus, we conclude that Comb is entitled to remand for resentencing.
III. DISPOSITION
The sentence is vacated, and the case is remanded for resentencing under section 1170 as amended by Senate Bill 567. The judgment is otherwise affirmed.
WE CONCUR: BROWN, J., NADLER, J. [*]
[*] Judge of the Superior Court of California, County of Sonoma, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.