Opinion
C096233
07-31-2023
THE PEOPLE, Plaintiff and Respondent, v. JAMES EDWARD JOHNSON, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 17FE002027
KRAUSE, ACTING P. J.
Defendant James Edward Johnson appeals from the trial court's resentencing decisions after we remanded with directions to strike the Penal Code section 667.5, subdivision (b) prior prison term enhancement under recently enacted legislation. We will remand with directions for the trial court to determine whether to stay the sentence on a subordinate count under section 654 or impose a concurrent sentence, but otherwise affirm the judgment.
Undesignated statutory references are to the Penal Code.
BACKGROUND
During a domestic dispute, defendant punched the mother of his daughter in the face and broke her jaw. Defendant was convicted of corporal injury on a dating partner (§ 273.5, subd. (a), count one) and battery with serious bodily injury (§ 243, subd. (d), count two), with enhancements for personally inflicting great bodily injury. (§§ 12022.7, subd. (e), 1192.7, subd. (c)(8).) The jury also sustained strike and prior prison term allegations. (§§ 1170.12, 667, subd. (b)-(i), 667.5, subd. (b).) Defendant was sentenced to 11 years in state prison.
Defendant appealed and we remanded with directions to strike the prior prison term enhancement in light of the amendment to section 667.5, subdivision (b), enacted by Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590, § 1), pursuant to which a one-year enhancement applies only if a defendant served a prison term for a sexually violent offense. We affirmed the judgment in all other respects. (People v. Johnson (Aug. 19, 2021, C086308) [nonpub. opn.].)
On remand, defendant filed a sentencing memorandum arguing that the trial court should dismiss the strike as well as the prior prison term enhancement under the amendments to section 1385, subdivision (c), enacted by Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81) (Stats. 2021, ch. 721, § 1, eff. Jan. 1, 2022). Defendant also contended the court should impose lower rather than middle terms on the underlying offenses under section 1170, subdivision (b)(6) enacted by Senate Bill No. 567 (20212022 Reg. Sess.) (Senate Bill 567) (Stats. 2021, ch. 731, § 1.3, eff. Jan. 1, 2022). The People filed an opposition. Defendant then filed a supplemental memorandum, attaching his mental health records from 2015 and 2016.
On April 15, 2022, the trial court conducted a resentencing hearing. The court reaffirmed its previously imposed middle term of three years doubled to six years by the strike for corporal injury to the victim (§ 273.5, subd. (a)) and the middle term of four years for the great bodily injury enhancement. (§ 12022.7, subd. (e).) The trial court struck the prior prison term enhancement. (§ 667.5, subd. (b).) For battery with great bodily injury (§ 243, subd. (d)), the court imposed a concurrent sentence of the middle term of three years doubled by the strike to six years. The total state prison term imposed was 10 years.
The judge who presided over defendant's trial conducted the resentencing hearing.
In stating its reasons for imposing essentially the same sentence, except for the prior prison term enhancement, the trial court referred only to section 1385. The court noted that it considered the mitigating factors of the age of defendant's prior offense and his youthfulness in imposing the middle term in the original sentence on the offenses and enhancements, notwithstanding a higher term recommendation by the probation department. The trial court observed the "posture change is in terms of what weight to give those factors in light of [section] 1385." The court identified "the fundamental question [as] whether or not it is in the interest of justice to dismiss the enhancement, and then basically giving the weight that [section] 1385 suggests one should give." The court concluded it was not "in the interest of justice" to dismiss the enhancements and that "dismissal of either the [great bodily injury] allegation or the [section] 667[, subdivision] (b) strike would . . . endanger public safety."
The trial court explained that defendant's record showed a pattern of assaultive and violent acts leading up to the current offense where the victim was subjected to great violence and suffered significant injury. Before this incident, defendant also had assaulted the victim while she was pregnant, conduct that the court said "showed a lack of regard for the safety and well being of others and again showed sort of a callousness that concerned the Court." The trial court also found troubling defendant's poor performance on supervised release or probation, which did not deter him from further violent conduct. Lastly, the court found concerning defendant's own statements in the supplemental materials he submitted, which referenced circumstances that triggered violent behavior on his part. The court concluded: "For those reasons, the Court is not inclined to exercise its discretion, nor does the Court [feel] it's compelled to do so under section 1385 to strike either of the two enhancements whether or not it is section 667[, subdivision] (b) or the [section] 12022.7."
Defense counsel did not object to the trial court's failure to mention Senate Bill 567 or amended section 1170, subdivision (b)(6) in its statement of reasons in support of its sentence choices.
Defendant filed a timely appeal.
DISCUSSION
Defendant contends the trial court abused its discretion in failing to reduce his sentence to the lower term under Senate Bill 567 and strike his strike prior and great bodily injury enhancements under Senate Bill 81. We address Senate Bill 81 first, concluding that the trial court did not abuse its discretion in applying the amendments to section 1385 enacted by this legislation. With regard to the amendments to section 1170 made by Senate Bill 567, we conclude that defendant forfeited the issue on appeal because defense counsel failed to object to the trial court's omission of this legislation in its statement of reasons. However, we reject defendant's claim that counsel rendered ineffective assistance in doing so.
I
Senate Bill 81
We review the trial court's resentencing decisions for abuse of discretion, evaluating whether the court exercised its discretion to produce an arbitrary, capricious, or patently absurd result. (See People v. Carmony (2004) 33 Cal.4th 367, 378; People v. Mendoza (2023) 88 Cal.App.5th 287, 298.)
Defendant contends that the trial court should have dismissed his strike prior and great bodily injury enhancements under the amendments to section 1385 enacted by Senate Bill 81. Defendant argues the court acknowledged mitigating factors enumerated in section 1385 but found dismissal of the enhancements would endanger public safety, a finding that defendant says is unsupported by substantial evidence and therefore an abuse of discretion. We conclude the trial court did not abuse its discretion.
Senate Bill 81 added subdivision (c) to section 1385 providing: "(c)(1) Notwithstanding any other law, the court shall dismiss an enhancement if it is in furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. [¶] (2) 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." (§ 1385, subd. (c)(1) & (2).)
The statutory mitigating factors defendant contends are applicable are: "(B) Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed," "(D) The current offense is connected to mental illness," "(E) The current offense is connected to prior victimization or childhood trauma," "(G) The defendant was a juvenile when [he] committed the current offense or any prior offenses, including criminal convictions and juvenile adjudications, that trigger the enhancement or enhancements applied in the current case," and "(H) The enhancement is based on a prior conviction that is over five years old."
As an initial matter, subparagraph (B) does not fall within the ambit of section 1385 because defendant's strike is not an enhancement. "It is . . . well established that the Three Strikes law is not an enhancement; it is an alternative sentencing scheme for the current offense. [Citations.]" (People v. Burke (2023) 89 Cal.App.5th 237, 243.) Therefore, this case does not involve multiple enhancements. The only enhancement is for great bodily injury. (§ 12022.7.)
Turning to that enhancement, we find no abuse of discretion in the trial court's decision not to dismiss it. As discussed above, the court determined that the record shows that defendant had engaged in a pattern of assaults and violence leading up to the current offense, which involved great violence and significant injury to the victim. A prior assault involved the same victim when she was pregnant. Moreover, the defendant was on postrelease community supervision and probation at the time of the offense. As the trial court observed, even defendant's mental health records include his statements reporting violent acts triggered by various circumstances. We cannot conclude that the court's determination that dismissal of the section 12022.7 enhancement was not "in the interest of justice" and would "endanger public safety" was" 'so irrational or arbitrary that no reasonable person could agree with it.'" (People v. Mendoza, supra, 88 Cal.App.5th at p. 299.)
Defendant argues, however, that the trial court could not rely on his conduct prior to 2018 in determining that dismissing the enhancement would present a public danger. Defendant asserts that "[t]he resentencing court was required to sentence [defendant] as he stood before the court on April 15, 2022, . . . not as he stood before the court over four years prior on January 12, 2018." In effect, defendant contends that in resentencing the trial court could consider only his conduct while incarcerated after his conviction. In support, defendant quotes the per curiam opinion in United States v. Bryson (2nd Cir. 2000) 229 F.3d 425 that "a court's duty is always to sentence the defendant as he stands before the court on the day of sentencing." (Id. at p. 426.) However, defendant misunderstands the principle on which he purports to rely. In resentencing, the trial court must consider defendant's postjudgment conduct while he was in prison. (People v. Yanaga (2020) 58 Cal.App.5th 619, 625-626 (Yanaga); see also Dix v. Superior Court (1991) 53 Cal.3d 442, 460.) However, the trial court is also required to consider the same factors it must consider when handing down a sentence in the first instance. (See People v. Pearson (2019) 38 Cal.App.5th 112, 117; Yanaga, supra, at pp. 626-627.)
Here, the trial court did not refuse to consider postconviction evidence in resentencing as in Yanaga, supra, 58 Cal.App.5th at page 625. Rather, the record is silent on the subject. When the record is silent, we presume the trial court did not err. (People v. Furhman (1997) 16 Cal.4th 930, 944 ["in the absence of a clear indication to the contrary, [courts have] concluded that in cases in which the trial court record is silent, ordinary principles of appellate review require that an appellate court presume the trial court properly understood" its role].)
We conclude the trial court did not abuse its discretion in declining to dismiss the enhancement for great bodily injury.
II
Senate Bill 567
Defendant argues that the trial court abused its discretion in reasoning that it was not in the interest of justice to impose the lower term under section 1170, subdivision (b)(6) because the mitigating factors raised at the 2022 resentencing hearing were considered by the court in imposing the middle term in 2018. However, based on our review of the record, nothing of the kind occurred at the resentencing hearing. Rather, the trial court did not consider section 1170, subdivision (b)(6) at all. The court omitted any discussion of this statute and confined its reasoning exclusively to section 1385. Since defense counsel did not object or otherwise inform the trial court of its omission, defendant forfeited the issue on appeal.
Section 1170, subdivision (b)(6), enacted by Senate Bill 567, provides that "unless the court finds that the aggravating circumstances outweigh the mitigating circumstances such that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense." Defendant maintains the factors applicable here are: "(A) The person has experienced psychological, physical, or childhood trauma, including but not limited to, abuse, neglect, exploitation, or sexual violence," and "(B) The person is a youth, or was a youth as defined under subdivision (b) of Section 1016.7, at the time of the commission of the offense." (See also § 1016.7, subd. (b) ["A 'youth' for purposes of this section includes any person under 26 years of age on the date the offense was committed"].)
The trial court's failure to address section 1170, subdivision (b)(6) is not inexplicable. We note that defendant's discussion of Senate Bill 567 in his resentencing memorandum consisted of a single paragraph tacked on at the end, which the trial court might have overlooked. At the hearing, the trial court described defendant's sentencing memorandum as pertaining to the court's discretion to "resentence the defendant consistent with . . . the revised [] Section 1385." Also, while defense counsel did very briefly raise Senate Bill 567 at the resentencing hearing before the trial court pronounced sentence, counsel's argument (like defendant's sentencing memorandum) was limited to defendant's youth as a contributing factor. Thus, it appears the trial court had no idea that defendant sought resentencing to the lower term on his offenses based on the application of multiple factors set forth in section 1170, subdivision (b)(6).
Because defense counsel voiced no objection nor made any effort to point out the omission to the trial court, defendant has forfeited this issue on appeal. It is well established that "complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott (1994) 9 Cal.4th 331, 356; see People v. Wall (2017) 3 Cal.5th 1048, 1075 ["[A] defendant forfeits on appeal any 'claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' in the absence of objection below"].) The rule of forfeiture applies in" 'cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or to give a sufficient number of valid reasons.'" (People v. Boyce (2014) 59 Cal.4th 672, 731.) This rule is particularly applicable where, as here, section 1170, subdivision (c) requires the court to state the reasons for sentence choice at the time of sentencing. (§ 1170, subd. (c) ["The court shall state the reasons for its sentence choice on the record at the time of sentencing"]; People v. Powell (2011) 194 Cal.App.4th 1268, 1297.)
Anticipating forfeiture, defendant argues that defense counsel rendered ineffective assistance in failing to object to the court's reasons for its resentencing choices. To establish ineffective assistance, the defendant must show: (1) counsel's performance was unreasonable under prevailing professional norms; and (2) a reasonable probability of a more favorable result but for counsel's performance. (People v. Alvarado (2001) 87 Cal.App.4th 178, 194.) A reasonable probability is one that undermines confidence in the outcome. (Ibid.)
Here, defendant cannot show a reasonable probability of a more favorable outcome. (See People v. Holt (1997) 15 Cal.4th 619, 703 ["' "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the deficiencies"' "].) To begin with, there is no indication in the record that defendant's youth was a" 'contributing factor'" in his commission of the underlying offense. (People v. Frederickson (2023) 90 Cal.App.5th 984, 995.) Indeed, defense counsel conceded that defendant could not show that his youth was a contributing factor and attempted to argue (incorrectly) that section 1170, subdivision (b)(6) does not require it: "I don't think it's a situation where . . . youth played a factor in this offense. I don't know how you prove that exactly, but it's more of this is the baseline, and this is where the Court should start the sentencing analysis." (See Frederickson, supra, at p. 992 [to trigger the lower term presumption where the defendant was under age 26 when the crime was committed, "there must be some initial showing that the defendant's youth was a contributing factor"].)
However, defendant also relies on his medical records to document psychological trauma as a contributing factor. In the resentencing hearing as well, the trial court commented that defendant's mental health records "captured . . . things triggering violent behavior" on his part. But, to reiterate, the trial court identified multiple aggravating factors in determining that striking an enhancement was not in the interest of justice, including that defendant committed a crime of great violence, had a pattern of violent conduct that indicates a danger to society, and had unsatisfactory performance on probation/postrelease community supervision. (Cal. Rules of Court, rule 4.421(a)(1), (b)(1) &(5).) The probation report identified these aggravating factors, as well as that defendant's prior convictions as an adult or juvenile were numerous or of increasing seriousness, he had served a prior prison term, and he was on postrelease community supervision and had previously been granted informal probation three times when he committed his current crime. (Cal. Rules of Court, rule 4.421(b)(2), (3), (4).) On this record, we conclude that the trial court, if reminded to do so, would have determined that these multiple aggravating factors outweighed a single mitigating factor under section 1170, subdivision (b)(6).
Accordingly, we reject defendant's claim of ineffective assistance of counsel.
III
Count Two Sentence
At the resentencing hearing, the trial court stated that the six-year sentence on count two for battery causing great bodily injury (§ 243, subd. (d)) would be served concurrently. However, the abstract ofjudgment states this sentence is stayed under section 654. The original sentencing pronounced in 2018 also referred to this term as stayed under section 654, as did the court's minute order and the probation report. Nothing in the record supplies a reason why the trial court would change the count two term as stayed in the original sentencing under section 654 to run concurrently upon resentencing. Under the circumstances, we cannot tell if the trial court intended to alter the original sentence in that respect and the usual rule that the oral pronouncement controls over a conflicting abstract ofjudgment is inadequate to clarify the situation. (People v. Mullins (2018) 19 Cal.App.5th 594, 612.)
We therefore remand for resentencing limited to whether the sentence on count two is stayed under 654 or should run concurrently.
DISPOSITION
We remand the sentence for count two-battery causing great bodily injury, section 243, subdivision (d)-to the trial court so that it may make an oral pronouncement regarding whether the sentence is stayed under section 654 or concurrent, and, if necessary, amend the abstract of judgment accordingly and forward it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: BOULWARE EURIE, J., MESIWALA, J.