Opinion
C097859
12-07-2023
THE PEOPLE, Plaintiff and Respondent, v. ELIJAH RAY LAMBERT, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 15F03123
DUARTE, ACTING P. J.
In 2015, defendant Elijah Ray Lambert fired a shot at his friend, Miguel Martinez, to try out a bulletproof vest. The bullet clipped the top of the vest, entered Martinez's chest, and killed him. Tried for murder, the jury found defendant guilty of the lesser included offense of involuntary manslaughter, as well as unlawful possession of a firearm. In sentencing defendant to 12 years in state prison, the trial court stayed the lesser sentence on defendant's conviction for unlawful firearm possession under Penal Code section 654 and imposed the greater sentence on the involuntary manslaughter conviction. This court remanded the matter for the trial court to exercise its newly granted discretion to stay either sentence under section 654 as amended by Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 441, § 1) (Assembly Bill No. 518). (People v. Lambert (Apr. 26, 2022, C088636) [nonpub. opn.] (Lambert).) We observed that at resentencing defendant could ask the trial court to apply any ameliorative legislation signed into law during the pendency of this appeal. (Ibid.) After the remittitur issued, a different judge sentenced defendant to 11 years in prison.
Undesignated statutory references are to the Penal Code.
Defendant appeals, contending the trial court abused its discretion: (1) under amended section 654 by continuing to stay the lesser sentence for unlawful firearm possession rather than the greater sentence for involuntary manslaughter; (2) under the recent amendments to section 1170, subdivision (b) made by Senate Bill No. 567 (20212022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3) (Senate Bill No. 567) by imposing the upper term; and (3) under the recent amendments to section 1385 made by Senate Bill No. 81 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 721, § 1) (Senate Bill No. 81) by declining to dismiss a prior strike or firearm enhancement.
As relevant to our analysis, the People argue forfeiture and harmless error as to the section 1170, subdivision (b)(1) and (2) claims.
We conclude defendant sufficiently preserved his objection to the imposition of the upper term sentence. Because the trial court erred in relying on defendant's unproven criminal history to impose the upper term, and the error was not harmless, we shall vacate the sentence and remand for a full resentencing. Accordingly, we need not and do not reach defendant's remaining appellate contentions.
BACKGROUND
One night in 2015, defendant and Martinez went to a park with another friend to test a bulletproof vest with a .22 revolver. The owner of the vest put it on the ground and shot it in the middle; it stopped the bullet. To try it out on a person, Martinez put on the vest, and defendant stood a short distance away with the revolver. Defendant attempted to shoot Martinez in the vest but the bullet hit the top of the vest and entered Martinez's chest, fatally wounding him.
A jury found defendant guilty of involuntary manslaughter (§ 192, subd. (b)); count one) as a lesser included offense to second degree murder (§ 187, subd. (a)), and unlawful use of a firearm (§ 29820 [possession of a firearm by a juvenile ward of the court under 30]; count two). The jury found true that defendant personally used and discharged a firearm. (§ 12022.5, subd. (a).) In a bifurcated proceeding, the trial court found defendant had suffered a prior strike. (§§ 667, subds. (b)-(i), 1170.12.)
The trial court denied defendant's Romero motion to strike his prior strike and sentenced him to an aggregate term of 12 years. The sentence included the upper term of four years for involuntary manslaughter (count one), doubled to eight years for the strike, and the midterm of four years for the firearm enhancement. The court imposed and stayed the midterm sentence of two years for unlawful possession of a firearm (count two) under section 654.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
We remanded defendant's case for resentencing in light of the recent amendments to section 654 affecting the trial court's discretion to stay the sentence. (Lambert, supra, C088636 .) We observed that in resentencing defendant may urge the trial court to apply other ameliorative legislation enacted while his appeal was pending. (Ibid.)
Upon remand, a newly assigned trial judge resentenced defendant to the previously imposed upper term on count one, as well as the lower term of three years for the firearm enhancement. The court again imposed and stayed the midterm on count two under section 654. Defendant's total aggregate sentence was 11 years in state prison, which he timely appealed.
DISCUSSION
I
Error in Consideration of Senate Bill No. 567
Defendant contends the trial court prejudicially erred or otherwise abused its discretion in resentencing him to the upper term on count one rather than the midterm, because the aggravating factors the court relied on to impose the upper term do not comply with Senate Bill No. 567's new sentencing requirements. We agree.
A. Senate Bill No. 567's Amendments to Section 1170
When defendant was originally sentenced in 2018, section 1170, subdivision (b) provided that when a judgment of imprisonment is to be imposed and the statute authorizes three potential terms, "the choice of the appropriate term shall rest within the sound discretion of the court." (§ 1170, former subd. (b); Stats. 2020 ch. 29, § 14.) Effective January 1, 2022, Senate Bill No. 567 changed the requirements for proving aggravating circumstances and altered sentencing discretion under section 1170. (Stats. 2021, ch. 731, § 1.3.)
As relevant here, Senate Bill No. 567 amended section 1170, former subdivision (b) by making the middle term the presumptive sentence for a term of imprisonment unless there are circumstances in aggravation that justify a term exceeding the midterm and the facts underlying those circumstances in aggravation are stipulated to by the defendant, proven beyond a reasonable doubt, or established by a certified record of conviction. (§ 1170, subd. (b)(1)-(3).)
B. Resentencing Proceedings
Following the issuance of the remittitur in Lambert, defendant filed a resentencing brief asking the trial court to reconsider the originally imposed sentence based on intervening changes in the law. He requested that the court stay the sentence on count one (involuntary manslaughter) under section 654. He further argued that, under the newly enacted Senate Bill No. 567, the court was required to impose: (1) the middle term unless there were aggravating factors found true beyond a reasonable doubt, stipulated to by defendant, or established by a certified record of conviction; or (2) the lower term if factors such as defendant's trauma or youth contributed to the offense, unless it would be contrary to the interest of justice to do so. Defense counsel also asked the court to exercise its discretion to strike the prior strike or the firearm enhancement.
Defendant submitted letters from his wife, mother, and friends, as well as a report from Dr. Rina Norris with supporting documents opining that defendant suffered from mental illness due to childhood trauma that contributed to the offense.
The People opposed defendant's request to stay the sentence on count one (involuntary manslaughter), arguing count two (unlawful firearm possession) did not reflect that defendant took a human life. Next, the People acknowledged that no factors in aggravation were submitted to the jury, and no findings made by the jury. They argued nonetheless that the upper term sentence complied with section 1170, subdivision (b) because the trial court could consider defendant's prior convictions based on certified records under subdivision (b)(3). However, the People did not cite a certified record of conviction in enumerating aggravating factors they asserted supported an upper term sentence, including that defendant's criminal record was of increasing seriousness, the trial court could consider a prior juvenile adjudication, and defendant committed the current offense while out on bail. The People also opposed imposition of the lower term under section 1170, subdivision (b)(6), arguing defendant did not show that his trauma contributed to the crime and that aggravating circumstances outweighed mitigating circumstances in this case. Lastly, the People opposed striking a prior strike or dismissing the firearm enhancement under section 1385.
At the January 2023 resentencing hearing, the trial court advised the parties that, notwithstanding Assembly No. 518, it was not inclined to stay the involuntary manslaughter sentence. The court agreed with the People that defendant's involuntary manslaughter conviction best reflected the nature of the crime. The court also said it would not revisit the initial judge's ruling on the Romero motion, absent some new and different information.
The trial court said it understood defense counsel to be requesting "some movement between mid-term and low term." The court characterized the issue before as whether it is "an appropriate sentence to keep the upper term [of] four years or should that be mitigated to mid, to low term." The court also questioned whether the firearm enhancement should be "reduced" from the midterm of four years to the lower term of three years. The court expressed concern about Dr. Norris's report and proposed calling her as a witness. The following day, Dr. Norris testified to her opinions stated in her report and was cross-examined by the prosecutor.
The next day, after the parties presented further argument, the trial court imposed sentence. The court noted that defendant's record as set forth "in the prior probation report . . . is not stellar for a man 21 years of age," and enumerated each of defendant's juvenile offenses and ward placements from 2007 through 2013 listed in the probation report. The court also noted that defendant was out on bail at the time of the offense.
The trial court declined to strike the prior strike and reimposed the prior sentence of four years, doubled to eight years by the strike, on the involuntary manslaughter conviction. The court concluded that "based on [defendant's] record alone [the] upper term is appropriate." Noting that "some additional information has come to light," the court imposed the lower term on the firearm enhancement for an aggregate sentence of 11 years in state prison.
C. Forfeiture
Before turning to the merits, we consider the People's claim that defendant did not properly preserve his objections to the upper term sentence, because defendant "did not object to the court's noncompliance with the changes brought about by" Senate Bill No. 567. "As a general rule, a party who does not raise an argument below forfeits the argument on appeal." (In re Abram L. (2013) 219 Cal.App.4th 452, 462; see also People v. Anderson (2023) 88 Cal.App.5th 233, 242, review granted Apr. 19, 2023, S278786 [§ 1170, subd. (b) issue forfeited where defendant not only failed to object but suggested the court impose the upper term].)
An objection is generally considered sufficient "if it fairly apprises the trial court of the issue it is being called upon to decide." (People v. Scott (1978) 21 Cal.3d 284, 290.) "In a criminal case, the objection will be deemed preserved if, despite inadequate phrasing, the record shows that the court understood the issue presented." (Ibid.)
Here, defendant was sentenced in January 2023 after Senate Bill No. 567's effective date. (Stats. 2021, ch. 731, eff. Jan. 1, 2022.) Accordingly, this ameliorative legislation was in effect at the time of defendant's resentencing hearing.
In Lambert, this court noted that defendant submitted a supplemental brief arguing that this case should be remanded to apply Senate Bill No. 567 limiting a trial court's ability to impose the upper term unless the certain circumstances were stipulated to by the defendant or found true beyond a reasonable doubt. (Lambert, supra, C088636.) We further noted that the People had agreed Senate Bill No. 567 applied to this case. (Ibid.)
As discussed in the background section, after the remittitur issued, the parties briefed the presumptive midterm provisions of section 1170, subdivision (b)(1)-(3), as well as the presumptive lower term provisions in section 1170, subdivision (b)(6), in their submissions to the sentencing court. The trial court's comments at the resentencing hearing show that the court understood defendant was requesting "some movement between mid-term and low term," under section 1170, subdivision (b), and therefore the court needed to determine whether it is "an appropriate sentence to keep the upper term [of] four years or should that be mitigated to mid, to low term."
To the extent the People assert defendant was required to specifically object to the trial court's consideration of the probation report, the court did not indicate it was relying on defendant's criminal history in the report as the primary factor in imposing an upper term sentence, until it actually announced the sentence at the conclusion of the sentencing hearing. Under the circumstances, we conclude that defendant did not have a meaningful opportunity to object. (See People v. Scott (1994) 9 Cal.4th 331, 356.) The forfeiture doctrine only applies where the defendant has a meaningful opportunity to object, which occurs "only if, during the course of the sentencing hearing itself and before objections are made, the parties are clearly apprised of the sentence the count intends to impose and the reasons that support any discretionary choices." (Ibid.)
In sum, because all parties and the trial court understood that Senate Bill No. 567's provisions applied and the court expressly considered defendant's request to impose the middle or lower term rather than the upper term, defendant did not forfeit his objection to the reimposition of the upper term. Next, we turn to the merits of defendant's Senate Bill No. 567 challenge.
D. Application of Amended Section 1170
The court recited defendant's criminal history from the probation report and imposed an upper term sentence based on this record. There can be no dispute that this information was insufficient to satisfy section 1170, subdivision (b) as amended. While section 1170, subdivision (b)(3) allows the trial court to "consider the defendant's prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to the jury," a probation report is not a certified record of conviction. (People v. Dunn (2022) 81 Cal.App.5th 394, 401, 403, review granted Oct. 12, 2022, S275655; People v. Falcon (2023) 92 Cal.App.5th 911, 953, review granted Sept. 13, 2023, S281242.) Although the People note that the defendant's strike-- a 2009 robbery conviction (§ 211)--was found true beyond a reasonable doubt, the resentencing court did not rely on a single prior conviction to impose the upper term but rather defendant's entire criminal history, as well as his commission of the crime while out on bail.
II
Harmlessness of the Error
On this record, we cannot say the error was harmless. Although there were a number of potential aggravating circumstances in the probation report, they were not found to have been substantiated by adequate proof or stipulation as required by the statute. While Senate Bill No. 567 does allow a trial court to consider prior convictions based on certified records (§ 1170, subd. (b)(3)) as a circumstance in aggravation, we cannot confidently conclude the resentencing court would have chosen the upper term if it could rely only on the prior robbery conviction that the original sentencing court found true. Indeed, that prior strike had already doubled defendant's sentence. Although that single factor alone might be sufficient to satisfy the Sixth Amendment (People v. Zabelle (2022) 80 Cal.App.5th 1098, 1111-1112), the same cannot be said under Senate Bill No. 567, where, as here, the court alluded to multiple prior convictions, as well as defendant's commission of the offense while out on bail.
On remand, the trial court should revisit all its sentencing choices considering all applicable legislation, including, but not limited to, Senate Bill No. 567, Senate Bill No. 81, and Assembly Bill No. 518. (People v. Valenzuela (2019) 7 Cal.5th 415, 424425.) Given this conclusion, we do not reach the parties' remaining contentions.
DISPOSITION
Defendant's sentence is vacated, and the matter is remanded for a full resentencing. The judgment is otherwise affirmed. Upon resentencing, the trial court shall prepare an amended abstract of judgment that accurately reflects the court's oral pronouncement of judgment and forward a certified copy thereof to the Department of Corrections and Rehabilitation.
We concur: Renner, J., Krause, J.