Opinion
F084493
10-09-2023
THE PEOPLE, Plaintiff and Respondent, v. JODY PRESTON MOREHOUSE, Defendant and Appellant.
Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Kari Mueller, Amanda D. Cary and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Kern County. Super. Ct. No. BF163986A Brian M. McNamara, Judge.
Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Kari Mueller, Amanda D. Cary and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
In 2020, this court remanded this matter for a mental health diversion eligibility determination under Penal Code section 1001.36, in accordance with People v. Frahs (2020) 9 Cal.5th 618 (Frahs), and for resentencing if diversion was denied. In June 2022, the trial court found defendant Jody Preston Morehouse unsuitable for diversion and resentenced him to an aggregate term of 25 years 4 months in prison. In this appeal, following resentencing, defendant claims that the trial court erred when it imposed upper terms in contravention of section 1170, subdivision (b), as amended by Senate Bill No. 567.
All further statutory references are to the Penal Code unless otherwise stated.
Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567), amending sections 1170 and 1170.1, effective January 1, 2022.
As explained herein, we find that defendant forfeited his claim of sentencing error by failing to object, and we find no merit to his related claim of ineffective assistance of counsel (IAC). Therefore, we affirm the judgment.
PROCEDURAL BACKGROUND
In 2016, defendant was arrested and charged in connection with a carjacking. In 2017, the parties waived a jury trial and the trial court convicted defendant of the following six offenses: carjacking (§ 215, subd. (a); count 1), making criminal threats (§ 422; count 2), misdemeanor vandalism (§ 594, subd. (b)(1); count 3), evading a peace officer with wanton disregard for safety (Veh. Code, § 2800.2; count 4), second degree robbery (§ 212.5, subd. (c); count 5), and assault with a deadly weapon (§ 245, subd. (a)(1); count 6). The court also found that defendant personally used a deadly weapon in the commission of carjacking, making criminal threats, and robbery (§ 12022, subd. (b)(1)), that he suffered a prior serious or violent felony conviction for purposes of "Three Strikes" law sentencing and the prior felony conviction enhancement allegation (§§ 667, subd. (a)(1), (b)-(i), 1170.12, subds. (a)-(d)), and that he served two prior prison terms (§ 667.5, former subd. (b)).
Pursuant to defendant's request and on our own motion, we take judicial notice of our prior non-published opinion in People v. Morehouse (Oct. 30, 2020, F076241), and the record in that case. (Evid. Code, §§ 452, subd. (d), 459.)
The Honorable Gary T. Friedman.
Pursuant to the Three Strikes law, the trial court sentenced defendant to the upper term of 18 years for carjacking, with an additional one year for the weapon enhancement, five years for the prior felony conviction enhancement, and one year for one prior prison term enhancement. For making criminal threats, the court imposed a consecutive term of one year four months, with an additional four months for the weapon enhancement; and for evading a peace officer, the court imposed a consecutive term of one year four months. The court also imposed and stayed the following terms pursuant to section 654: a 10-year upper term for robbery, an eight-year upper term for assault, and a 180-day jail term for vandalism.
On appeal, defendant claimed that he was entitled to have his sentence for criminal threats stayed under section 654 and, in supplemental briefing, he requested remand under Senate Bill No. 1393 to allow the court to determine whether to strike the five-year prior felony conviction enhancement. In addition, he requested remand for a hearing on his eligibility for mental health diversion under section 1001.36.
Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393), amending sections 667 and 1385, effective January 1, 2019.
Section 1001.36 was added to the Penal Code by Assembly Bill No. 1810, effective June 27, 2018 (Assembly Bill No. 1810 (2017-2018 Reg. Sess.) (Assembly Bill 1810).
Pre-Frahs, this court rejected defendant's claim that section 1001.36 applied retroactively; stayed his sentence for criminal threats under section 654; and, with one justice dissenting, remanded for resentencing under sections 667, subdivision (a)(1), and 1385 as amended by Senate Bill 1393. (People v. Morehouse (July 30, 2019, F076241) [nonpub. opn.].) The California Supreme Court granted review and transferred the case back after deciding Frahs. In view of Frahs, this court found that defendant was entitled to a conditional limited remand to determine whether he was eligible for mental health diversion, which rendered his Senate Bill 1393 claim moot. The court reaffirmed modification of the judgment to stay the criminal threats sentence under section 654, and in light of Senate Bill No. 136, struck the two prior prison term enhancement findings and the one-year sentence enhancement imposed. (People v. Morehouse (Oct. 30, 2020, F076241) [nonpub. opn.].)
Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136), amending section 667.5, effective January 1, 2020.
Remittitur issued in December 2020 and in June 2022, following an evidentiary hearing, the trial court denied mental health diversion and declined to strike the five-year prior felony conviction enhancement. The court resentenced defendant to an aggregate term of 25 years 4 months, comprised of the upper term of nine years for carjacking, doubled for the strike, one year for the weapon enhancement, and five years for the prior felony conviction enhancement; and one year four months for evading a peace officer. The court imposed upper terms, stayed under section 654, on the remaining felony counts, and imposed and stayed a 180-day jail term for misdemeanor vandalism.
The Honorable Brian M. McNamara.
Defendant appealed, and he advances one sentencing issue. He claims that the trial court's imposition of upper terms contravenes section 1170, subdivision (b), because the court failed to give any reasons for its sentencing choices. Further, he claims that the aggravating factors were neither admitted by him nor found true by a trier of fact, although he concedes certified records were admitted into evidence in 2017 to prove his prior convictions.
The People argue that defendant forfeited review of his sentencing error claim by failing to object. On the merits, they argue that the sentence comports with the Sixth Amendment because no jury trial was required to aggravate his sentence given the prior conviction findings, and any errors under state law relating to other aggravating factors were harmless because there is no reasonable probability of a different outcome had the errors not occurred.
In reply, defendant contends that the forfeiture doctrine does not apply to unauthorized sentences and if his claim is forfeited, trial counsel rendered IAC. Defendant subsequently sought and was granted leave to file a supplemental brief raising an IAC claim, and the People filed a response. (See People v. Rangel (2016) 62 Cal.4th 1192, 1218 ["'Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief .... '"].)
We affirm the judgment, as follows.
DISCUSSION
I. Section 1170
As amended by Senate Bill 567, section 1170, subdivision (b), provides:
"(1) When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2).
"(2) The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. Except where evidence supporting an aggravating circumstance is admissible to prove or defend against the charged offense or enhancement at trial, or it is otherwise authorized by law, upon request of a defendant, trial on the circumstances in aggravation alleged in the indictment or information shall be bifurcated from the trial of charges and enhancements. The jury shall not be informed of the bifurcated allegations until there has been a conviction of a felony offense.
"(3) Notwithstanding paragraphs (1) and (2), the court may consider the defendant's prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury. This paragraph does not apply to enhancements imposed on prior convictions.
"(4) At least four days prior to the time set for imposition of judgment, either party or the victim, or the family of the victim if the victim is deceased, may submit a statement in aggravation or mitigation to dispute facts in the record or the probation officer's report, or to present additional facts. The court may consider the record in the case, the probation officer's report, other reports, including reports received pursuant to Section 1203.03, and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing.
"(5) The court shall set forth on the record the facts and reasons for choosing the sentence imposed. The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law. A term of imprisonment shall not be specified if imposition of sentence is suspended.
"(6) Notwithstanding paragraph (1), and unless the court finds that the aggravating circumstances outweigh the mitigating circumstances 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:
"(A) The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.
"(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.
"(C) Prior to the instant offense, or at the time of the commission of the offense, the person is or was a victim of intimate partner violence or human trafficking.
"(7) Paragraph (6) does not preclude the court from imposing the lower term even if there is no evidence of those circumstances listed in paragraph (6) present."
Section 1170 was amended subsequent to Senate Bill 567, but those amendments are not relevant in this case. (Assembly Bill No. 960 (2021-2022 Reg. Sess.) (Assembly Bill 960) [eff. Jan. 1, 2023]; Assembly Bill No. 1754, approved by the Governor July 27, 2023 (2023-2024 Reg. Sess.) Stats. 2023, ch. 131, § 155 [code maintenance, eff. Jan. 1, 2024].)
II. Forfeiture and Unauthorized Sentence Doctrine
Section 1170 was amended by Senate Bill 567 five months prior to the resentencing in this case and defendant did not object. He does not dispute this, but contends the forfeiture doctrine does not apply to unauthorized sentences. If we disagree, he contends that trial counsel was ineffective and that counsel's error was prejudicial. We find no merit to these arguments.
"'A party in a criminal case may not, on appeal, raise "claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices" if the party did not object to the sentence at trial. [Citation.] The rule applies to "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 give a sufficient number of valid reasons ...."'" (People v. Scott (2015) 61 Cal.4th 363, 406.) "Strong policy reasons support this rule: 'It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. [Citations.]' [Citation.] '"'"The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal."'" [Citation.]'" (People v. Stowell (2003) 31 Cal.4th 1107, 1114; accord, People v. Salazar (2016) 63 Cal.4th 214, 239-240; People v. French (2008) 43 Cal.4th 36, 46.)
As stated, the amendment to section 1170 at issue in this appeal was in effect well before the resentencing hearing, and, therefore, the policy reasons underlying the forfeiture doctrine fully support its application in this case. Defendant may not remain silent in the trial court when sentenced and then seek to rely on sentencing laws that were in effect at the time to obtain appellate relief. As defendant points out, there is a narrow exception to the forfeiture doctrine for unauthorized sentences, but it does not apply here.
"[A]n unauthorized sentence or one in excess of jurisdiction is a sentence that 'could not lawfully be imposed under any circumstance in the particular case.'" (In re G.C. (2020) 8 Cal.5th 1119, 1130 (G.C.), italics added, quoting People v. Scott (1994) 9 Cal.4th 331, 354.) "The appellate court may intervene in the first instance because these errors 'present[] "pure questions of law" [citation], and [are] "'clear and correctable' independent of any factual issues presented by the record at sentencing"' and without 'remanding for further findings.' (People v. Smith (2001) 24 Cal.4th 849, 852.) The rule exists because correction of sentencing error that is evident from the record and needing no redetermination of facts does not significantly impact the state's interest in finality of judgments. (In re Harris [(1993)] 5 Cal.4th [813,] 841.) 'In such circumstances, an individual's interest in obtaining judicial review of an allegedly illegal sentence cannot be ignored.' (Ibid.)" (G.C., supra, at p. 1130.)
This is not a situation in which the appellate claim raises a pure question of law and the sentence at issue could not have been imposed under any circumstance. (G.C., supra, 8 Cal.5th at p. 1130; People v. Achane (2023) 92 Cal.App.5th 1037, 1044 (Achane).) Rather, defendant is challenging the trial court's exercise of its sentencing discretion based on the court's failure to impose upper terms in compliance with statutory requirements. (§ 1170, subd. (b)(1)-(2), (b)(5).) In Achane, the appellate court recently rejected the same unauthorized sentence claim made here and explained that when there is a sentencing error under section 1170, the remedy is remand for resentencing, at which time the trial court may reimpose the upper term so long as the sentencing selection comports with the statute. (Achane, supra, at p. 1044.) We concur that the error complained of here did not result in an unauthorized sentence as contemplated by the recognized exception to the forfeiture rule, and we find the claim of sentencing error forfeited. (Ibid.)
III. IAC Claim A. Legal Standard
To prevail on a constitutional claim of IAC, defendant "'must satisfy a two pronged showing: that counsel's performance was deficient, and that [he] was prejudiced, that is, there is a reasonable probability the outcome would have been different were it not for the deficient performance.'" (People v. Woodruff (2018) 5 Cal.5th 697, 736 (Woodruff), quoting People v. Alexander (2010) 49 Cal.4th 846, 888; accord, Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) "'[T]he standard for judging counsel's representation is a most deferential one.' (Harrington v. Richter (2011) 562 U.S. 86, 105 (Richter).) We 'must indulge a "strong presumption" that counsel's conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight.' (Bell v. Cone (2002) 535 U.S. 685, 702.) 'Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge.' (Richter, at p. 105.)" (In re Long (2020) 10 Cal.5th 764, 773.)
Therefore, a "defendant's burden [is] 'difficult to carry on direct appeal,' as a reviewing court will reverse a conviction based on [IAC] on direct appeal only if there is affirmative evidence that counsel had '"'no rational tactical purpose'"' for an action or omission." (People v. Mickel (2016) 2 Cal.5th 181, 198, quoting People v. Lucas (1995) 12 Cal.4th 415, 437.) "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Strickland, supra, 466 U.S. at p. 690; accord, People v. Barrett (2012) 54 Cal.4th 1081, 1105.) At issue here, "'[d]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.'" (People v. Carrasco (2014) 59 Cal.4th 924, 985, quoting People v. Hill house (2002) 27 Cal.4th 469, 502.)
B. No Error
In this case, the probation report, prepared in 2017, identified no mitigating circumstances and two aggravating circumstances: "The defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness"; and "The defendant's prior performance on probation, mandatory supervision, post-release community supervision, or parole was unsatisfactory." (Cal. Rules of Court, rule 4.421(b)(2), (b)(5).) As previously stated, defendant was convicted following a court trial, and at the original sentencing, consistent with the probation report, the trial court found no factors in mitigation and the aforementioned two factors in aggravation. The court also specified that the aggravating factors "clearly outweigh[ed]" the nonexistent mitigating factors; and stated that defendant had been on unsupervised probation and parole for the past 20 years, and had been off parole for only seven months before committing the carjacking and related offenses.
Following remand in 2020 for proceedings under section 1001.36 pursuant to Frahs and, if necessary, resentencing, the record was well developed with respect to defendant's history and the facts underlying his convictions. After holding an evidentiary hearing, the trial court denied mental health diversion on the ground that it was unable to find defendant would not "pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community." (§ 1001.36, subd. (c)(4) [§ 1001.36, former subd. (b)(1)(F)].) The court then declined to exercise its discretion to strike the five-year prior felony conviction enhancement. (§ 667, subd. (a)(1).) With respect to both rulings, the court set forth its reasons in detail.
In arguing in favor of the court striking the prior felony conviction enhancement, trial counsel conceded that defendant had been in and out of the system for years without any significant stability, and he spent a lot of time incarcerated. However, she pointed out that the evidence of defendant's mental health disorders and substance abuse addiction could be considered as mitigating evidence, and that had he entered the juvenile system today, his needs would have been addressed differently. In response, the prosecutor noted that defendant's criminal history began in 1997, it had continued unabated, he had been on either probation or parole since then, and he incurred his first strike offense in 1999.
In denying relief from the prior felony conviction enhancement, the trial court focused on the trauma to the victim and defendant's decisions. The court also discussed the details of the crime and defendant's actions in more detail in denying mental health diversion. Although the probation report only listed two aggravating factors, the court's comments in denying both diversion and relief from the five-year prior felony conviction enhancement indicate that, had the court expressly addressed section 1170, additional aggravating factors might have applied. These include that "The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness"; "The defendant has engaged in violent conduct that indicates a serious danger to society"; and "The defendant has served a prior term in prison or county jail under section 1170[, subdivision ](h)." (Cal. Rules of Court, rule 4.421(a)(1), (b)(1), (b)(3).)
Given all of the circumstances in this case, trial counsel may well have made a tactical determination that objecting to the imposition of upper terms would have been of no benefit to defendant. First, counsel may have reasonably concluded that, had she objected in this case, any errors in form or substance under section 1170 could have and would have been easily remedied, resulting only in a delay in the proceedings with no tangible benefit to defendant. Second, the principal term in this case is carjacking and imposition of the lower or middle term would have translated into a reduction of defendant's 18-year term to a term of six or 10 years. (§ 215, subd. (b).) In light of the court's decision not to strike the five-year enhancement, counsel may have reasonably concluded that it would be futile to ask the court for an even greater sentence reduction through the imposition of a lower or middle term. For these reasons, we find no support in the record for defendant's claim that trial counsel's performance was deficient.
C. No Prejudice
Finally, even if we were to assume that counsel erred, in view of the aforementioned circumstances, there is no reasonable probability of a more favorable outcome had the error not occurred. (Woodruff, supra, 5 Cal.5th at p. 739; see Harrington v. Richter (2011) 562 U.S. 86, 112 ["The likelihood of a different result must be substantial, not just conceivable."].) In the absence of both error and prejudice, defendant's IAC claim is foreclosed.
DISPOSITION
The judgment is affirmed.
[*] Before Detjen, Acting P. J., Smith, J. and Meehan, J.