Opinion
E080357
05-28-2024
THE PEOPLE, Plaintiff and Respondent, v. ANDRE DWIGHT HAYNES, Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, Andrew S. Mestman and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. 16CR067785, J. David Mazurek, Judge. Affirmed in part; reversed in part and remanded with directions.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, Andrew S. Mestman and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER ACTING P.J.
On remand from this court, the trial court resentenced defendant and appellant Andre Dwight Haynes. On appeal, defendant contends defense counsel committed prejudicial ineffective assistance of counsel by failing to request the court exercise its discretion to impose a lesser sentence on the firearm enhancements or strike them altogether. Defendant additionally maintains the matter should be remanded for the court to calculate defendant's custody credits. We affirm the court's resentencing order but remand the matter for the court to calculate defendant's custody credits.
The court stayed imposition of sentence on five of the six enhancements upon which the jury rendered true findings, which were attached to each of the offenses for which the jury found defendant guilty. The court imposed 25 years on a single enhancement on each count, the personal and intentional discharge of a firearm causing great bodily injury enhancement.
I. FACTUAL AND PROCEDURAL BACKGROUND
On August 31, 2024, we granted the People's request that we take judicial notice of our opinion from defendant's previous appeal from the judgment. (People v. Cornell et al. (Feb. 25, 2022, E072302) [nonpub. opn.] (Cornell).)
After a rival gang shot two members of their gang, defendant and his codefendant, Quaid Cornell, opened fire on a group of civilians who lived in the rival gang's territory, killing one victim and seriously injuring two others. (Cornell, supra, E072302.)
A jury convicted defendant of one count of murder (Pen. Code, § 187, subd. (a), count 1) and two counts of attempted murder (§§ 664, 187, subd. (a), counts 2 & 3). The jury additionally found true allegations that in counts 1 through 3, defendant committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)), that a principal personally used a firearm (§ 12022.53, subds. (b) & (e)(1)), that a principal personally and intentionally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)), and that defendant personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (d) & (e)(1)). (Cornell, supra, E072302.) In a bifurcated bench trial thereafter, the judge found defendant had suffered a prior strike conviction (§ 667, subds. (b)-(i)). (Cornell, supra, E072302.)
All further statutory references are to the Penal Code.
At sentencing, the court noted that it had received and reviewed a petition to strike a personal use enhancement on behalf of Cornell. The court elected to "treat it as a petition for both defendants to strike the firearm and enhancements."
The court denied the petition reasoning, this is not "an unusual case in which the interest of justice would be served by striking such an enhancement. This is a gang retaliation shooting where a person was killed, and two other people were seriously injured that had nothing to do with the original shooting for which the original retaliation was sought. These are just innocent folks living their lives, sitting in a parking lot, a gentleman was drinking some beer. They were having a conversation. There's nothing that can justify or mitigate anything that the defendants did in this case. It's particularly egregious. It targeted innocent people in the community. And it is only appropriate that the defendants serve that time. It will be the Court's intention to [e]nsure that people [who] would engage in this kind of behavior are removed from the community for as long as they possibly can be removed from the community." The trial judge sentenced defendant to an aggregate term of imprisonment of 153 years to life. (Cornell, supra, E072302.)
As noted in footnote 1 ante, the court stayed imposition of sentence on the gang and four of the five gun use enhancements on counts 1 through 3; it imposed 25 years on the personal and intentional discharge of a firearm causing great bodily injury enhancements.
After sentencing, the People noted, the court had "discretion under [section] 667[, subdivision] (a)(1) as far as [defendant] to impose the nickel prior[]. I believe [t]he Court is exercising its discretion to apply it." The court responded, "I am exercising my discretion to apply it. I don't know what is going to happen in the future. But it is the Court's intention to give each of the defendants the maximum sentence I could possibly give each one of them because of [defendant's] prior record, which does involve assaultive behavior."
The minute order reflects that later, off the record, while the parties were not present, the court noted that the prior serious felony conviction enhancements had not been alleged; thus, the court struck or removed each. None of the purported prior serious felony conviction enhancements appear on the sentencing minute order or abstract judgment.
The court continued its reasoning: "this case, [is] absolutely senseless, [and] involved ultimately the deaths of two [sic] people." Moreover, the fact that defendant was "convicted for murder and . . . seriously injuring two other people that [he] didn't know, [and who] didn't have anything to do with any of the events involved in this case, [who] just happened to be at the wrong place at the wrong time. And it indicates an unbelievable disregard for human life, for people in the community, and it shouldn't have happened. So that's the Court's intention. That's why I'm doing what I'm doing. And I'm sure at some point, all that will change. But just so that there is a record of it, that's [t]he Court's choice and decision to impose[] as much as I can impose."
Defendant appealed. This court affirmed the judgment but reversed the gang (§ 186.22, subd. (b)) and firearm (§ 12022.53, subds. (d) & (e)(1)) enhancements pursuant to changes made to the law during the pendency of the appeal by Assembly Bill No. 333 (2021-2022 Reg. Session). Thus, this court reversed and remanded the matter to the trial court with directions to give the People an opportunity to retry the enhancements under the law as amended by Assembly Bill No. 333, or, if the People elected not to retry defendant, to resentence him accordingly. (Cornell, supra, E072302.)
On remand, the People elected not to retry the enhancements and moved to dismiss them, which the court granted. The court resentenced defendant to imprisonment for a determinate term of 60 years and an indeterminate term of 78 years to life.
II. DISCUSSION
Defendant contends defense counsel below committed prejudicial ineffective assistance of counsel by failing to request the sentencing court to exercise its discretion to impose a lesser sentence on the firearm enhancements or strike them altogether. Defendant additionally maintains the matter should be remanded for the court to recalculate defendant's custody credits. The People concede the latter issue. We affirm the court's resentencing order but remand the matter for the court to recalculate defendant's custody credits.
A. Ineffective Assistance of Counsel
Defendant contends defense counsel below committed prejudicial ineffective assistance of counsel by failing to request the sentencing court to exercise its discretion to impose a lesser sentence on the firearm enhancements or strike them altogether. Defendant avers, "Because it is not clear from the record the trial court was ever made aware it had such discretion, remand is required to permit the court to exercise its informed discretion." We disagree.
"'"To establish ineffective assistance of counsel, a defendant must show that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. [Citation.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citation.]"' [Citation.]" (People v. Rices (2017) 4 Cal.5th 49, 80.)
"[S]ection 12022.53[, subdivision] (h), . . . authorizes a court to strike a section 12022.53[, subdivision] (d) enhancement entirely and impose no additional punishment under section 12022.53." (People v. Tirado (2022) 12 Cal.5th 688, 696.) "When an accusatory pleading alleges and the jury finds true the facts supporting a section 12022.53[, subdivision ](d) enhancement, and the court determines that the section 12022.53[, subdivision ](d) enhancement should be struck or dismissed under section 12022.53[, subdivision ](h), the court may, under section 12022.53[, subdivision ](j), impose an enhancement under section 12022.53[, subdivision ](b) or (c)." (Id. at p. 700, fn. omitted.)
"Effective January 1, 2022, Senate Bill No. 81 (2021-2022 Reg. Sess.) amended section 1385 to include subdivision (c). (Stats. 2021, ch. 721.) Section 1385[, subdivision ](c)(1) provides that '[n]otwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, . . .' [Citation.] Section 1385[, subdivision ](c)(2) provides as follows: 'In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. "Endanger public safety" means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.' One of the mitigating circumstances is: 'The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed.' [Citation.]" (People v. Mendoza (2023) 88 Cal.App.5th 287, 295, fn. omitted.)
"Section 1385[, subdivision ](c)(2) provides that in determining whether to dismiss an enhancement . . . the court must consider nine listed mitigating circumstances if proven by the defendant [citation], 'unless the court finds that dismissal of the enhancement would endanger public safety' [citation]. That provision means that if the court finds that dismissal of an enhancement 'would endanger public safety,' then the court need not consider the listed mitigating circumstances. [Citation.]" (People v. Mendoza, supra, 88 Cal.App.5th at p. 296, fn. omitted ["[T]he trial court did not err by determining that section 1385[, subdivision ](c)(2)(C) did not require it to dismiss the firearm enhancement under subdivision (c) of section 12022.53, given the court's finding that dismissal of the enhancement would endanger public safety."].)
"Absent evidence to the contrary, we presume that the trial court knew the law and followed it." (People v. Ramirez (2021) 10 Cal.5th 983, 1042.) "[D]etermining what choice the trial court [was] likely to make in first instance is . . . speculative, unless the record reveals a clear indication of how the court would have exercised its discretion." (People v. McDaniels (2018) 22 Cal.App.5th 420, 426.) "[W]here a trial court cannot have acted with '"'informed 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." [Citations.]' [Citation.]" (People v. Lopez (2022) 78 Cal.App.5th 459, 467, fn. omitted; see People v. Konow (2004) 32 Cal.4th 995, 1025 [Error is not prejudicial where court clearly indicates an unwillingness to dismiss]; People v. Sotomayor (1996) 47 Cal.App.4th 382, 390 ["[R]emand is inappropriate if the record 'clearly indicated [the sentencing court] would not, in any event, have exercised its discretion to strike the allegations.' [Citation.]"]; People v. Davis (1996) 50 Cal.App.4th 168, 171-172 [The judgment should be affirmed where the court clearly indicated it would not exercise any discretion in the defendant's favor.].)
Here, even assuming error on the part of defense counsel, defendant cannot demonstrate prejudice. Due to the court's findings and its clear indication of its unwillingness to impose a lesser sentence, defendant cannot establish a reasonable probability sufficient to demonstrate that the court would have found in his favor had defense counsel moved the court to impose a lesser sentence. In other words, the court clearly indicated that dismissal or imposition of lesser sentences on the enhancements would endanger public safety. The court's findings clearly indicate that it believed defendant should spend the maximum period of incarceration the law would allow because defendant posed a risk of physical injury or serious danger to others.
At sentencing, the same court that resentenced defendant denied a petition to strike a personal use enhancement noting, "There's nothing that can justify or mitigate anything that the defendants did in this case. It's particularly egregious. It targeted innocent people in the community. And it is only appropriate that the defendants serve that time. It will be the Court's intention to [e]nsure that people that would engage in this kind of behavior are removed from the community for as long as they possibly can be removed from the community."
The court later chose a five-year term for defendant's prior serious felony conviction enhancement because of its "intention to give . . . defendant[] the maximum sentence I could possibly give." The court noted the offenses were "absolutely senseless." Defendant stood "convicted for murder and . . . seriously injuring two other people that [he] didn't know, [and who] didn't have anything to do with any of the events involved in this case, [who] just happened to be at the wrong place at the wrong time. And it indicates an unbelievable disregard for human life, for people in the community, and it shouldn't have happened." "The Court's choice and decision [is] to impose[] as much as I can impose."
The court even noted that its findings conveyed what it would do in light of the passage of any future ameliorative laws: "I don't know what is going to happen in the future." "That's why I'm doing what I'm doing. And I'm sure at some point, all that will change. But just so that there is a record of it, that's [t]he Court's choice and decision to impose[] as much as I can impose."
Thus, the court clearly indicated that it would not exercise any discretion it had, or may have in the future, to strike or impose a lesser sentence. The court clearly indicated that defendant was a danger to the community. Therefore, defendant cannot establish a reasonable probability the result would have been more favorable to him had defense counsel raised the issue.
Defendant contends reversal is required due to the court's "lack of awareness . . . of its discretion" to impose a lesser sentence on the enhancements or strike them altogether. We disagree.
First, "[a]bsent evidence to the contrary, we presume that the trial court knew the law and followed it." (People v. Ramirez, supra, 10 Cal.5th at p. 1042.) Here, as defendant admits, the changes in the law that he contends defense counsel should have moved the court to consider, went into effect prior to the resentencing hearing. Thus, we presume the court was aware of its discretion.
Second, defendant cites no authority for the proposition that the court was required to sua sponte consider imposing a lesser term on or the striking of the enhancements altogether. (People v. Lee (2008) 161 Cal.App.4th 124, 129 [The trial court has no sua sponte duty to exercise its discretion under section 1385.].) Regardless, as discussed ante, there is no reasonable probability the court would have exercised its discretion in defendant's favor.
B. Custody Credits
Defendant contends the matter must be remanded for the court to calculate his custody credits. The People concede the issue. We agree.
On remand, the court should recalculate defendant's actual time served and custody credits. (People v. Buckhalter (2001) 26 Cal.4th 20, 23, 37; People v. Rojas (2023) 95 Cal.App.5th 48, 55 ["We accordingly remand so the trial court may calculate the correct credits . . . and prepare a new abstract of judgment."].)
Because the court failed to recalculate defendant's custody credits, the matter must be remanded so that it may do so.
III. DISPOSITION
"The order is reversed in part, specifically as to the calculation of [defendant's] custody credits . . . . The order is otherwise affirmed. On remand, we direct the trial court to calculate [defendant's] custody credits . . . . The court shall also prepare a new abstract of judgment." (People v. Rojas, supra, 95 Cal.App.5th at pp. 61-62.)
We concur: FIELDS J., MENETREZ J.