Opinion
H049566
12-21-2022
THE PEOPLE, Plaintiff and Respondent, v. AMANDA OWENS, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Cruz County Super. Ct. No. 19CR05412)
LIE, J.
Appellant Amanda Owens pleaded guilty to involuntary manslaughter (Pen. Code, § 192, subd. (b)) and admitted that she personally used a deadly weapon (§ 1203, subd. (e)(2)). The trial court sentenced her to a total term of four years in prison, which included a middle term of three years for involuntary manslaughter. On appeal, Owens argues that she is entitled to the retroactive application of Senate Bill No. 567 (2021-2022 Reg. Sess.), which now requires a trial court to impose the lower term in cases where a defendant's experience as a victim of intimate partner violence "was a contributing factor in the commission of the offense," unless the trial court finds that aggravating circumstances outweigh the mitigating circumstances such that imposition of the lower term would not be in the interests of justice. (§ 1170, subd. (b)(6).) Owens significantly overstates the trial court's comments in her support at sentencing. But because section 1170, subdivision (b)(6) is retroactive and the record does not clearly indicate remand would be futile, we reverse and remand the matter for the trial court's consideration of the new law.
Unspecified statutory references are to the Penal Code.
I. BACKGROUND
We derive our summary of the crime from the probation officer's report, which summarized a report from the Santa Cruz County Sheriff's Department.
On August 24, 2019, Owens stabbed her husband, killing him. According to Owens, her husband became angry after she had told him she planned on leaving him. Owens said that he tried to block her path out of the kitchen, grabbed her by the wrist, and refused to let her go. Owens said she therefore" 'poked'" him in the shoulder with a knife. After her husband released his grip on her, he told her that his wound was deep and asked her to call an ambulance, which she did. Owens applied pressure to the wound until first responders arrived, but her husband later died of his injuries. At the time, Owens's teenage daughter was not at home, but her disabled adult son was. Owens's daughter and the family's neighbors told officers that they perceived Owens to be more aggressive than her husband.
B. The Plea
On May 18, 2021, the Santa Cruz County District Attorney's Office charged Owens with murder (§ 187, subd. (a); count 1) and involuntary manslaughter (§ 192, subd. (b); count 2). As to both counts, it was alleged that Owens personally used a deadly and dangerous weapon (a knife) (§ 12022, subd. (b)(1)), rendering the offenses serious felonies within the meaning of section 1192.7, subdivision (c)(23).
That same day, Owens entered an open plea of guilty to involuntary manslaughter (count 2) and admitted the allegation that she used a deadly and dangerous weapon. The factual basis for the plea was as follows: "On August 24th, 2019, in the City of Aptos in the County of Santa Cruz[,] during a verbal argument the defendant committed an unlawful act by stabbing her husband . . . with a knife in the chest which resulted in his death."
C. The Sentencing Briefs and Probation Report
On August 18, 2021, the prosecutor filed a sentencing brief. According to the brief, Owens and her husband had been married for approximately 22 years and had two children together, a daughter and a disabled son. In the months leading to her husband's killing, Owens had continuously "berated, bullied, and insulted" him, as documented by thousands of text messages. Owens sent her husband a multitude of derogatory messages, including calling him a "piece of crap" and a "clueless dumbshit." Owens's verbally abusive behaviors toward her husband were witnessed by their daughter, friends, coworkers, and in-home care staff who took care of their son. Owens's daughter described her mother as being more aggressive than her father, and her daughter reported that she had never seen her father "be physical" with her mother. Ultimately, the prosecutor recommended that the trial court sentence Owens to a total of five years in prison, which included the upper term for her conviction for involuntary manslaughter.
Owens filed a sentencing brief arguing that she should be placed on probation. Attached to her brief were several photos dated February 25, April 17, April 19, July 24, and July 25, 2019, which purportedly depicted injuries her husband inflicted on her. According to Owens, her husband was physically violent with her, and her husband's former coworkers described him as prone to losing his temper. Owens insisted that she stabbed her husband after he became "enraged," and she had taken hold of a kitchen knife to ward him off.
Owens submitted a domestic violence assessment prepared by a psychologist, Dr. Linda Barnard. After interviewing Owens and reviewing multiple documents, including the text messages sent by Owens to her husband, Barnard concluded that Owens was a battered woman and had experienced physical abuse from her husband since 2008. Barnard opined that Owens's killing of her husband was "substantially related" to the couple's history of domestic violence. She also acknowledged that Owens was verbally abusive in her text messages but maintained that Owens's verbal abuse of her husband did not negate her status as a victim of abuse.
Also attached to Owens's sentencing brief was a declaration prepared by Dr. Stephany Fiore, the forensic pathologist for the coroner's office. Fiore opined that the husband's wounds were consistent with many reasonable scenarios, including some scenarios that would be considered self-defense. Fiore believed, however, that this wide range of possibilities precluded an expert from opining as to what in fact transpired on the day of the crime.
The probation department also prepared a report describing the offense and the Owens's relationship. When interviewing Owens about the incident at the police station, officers noted that Owens appeared to break down and cry when she spoke about when she stabbed her husband, though without shedding actual tears. Officers also did not notice any bruising on Owens's arm that would indicate that her husband had forcefully grabbed her.
The probation officer spoke with the siblings of Owens's husband. According to one of Owens's brothers-in-law, Owens appeared to be the one in control of their marriage. Another recounted that during his first meeting with Owens, Owens belittled her husband in front of the entire family. Both of Owens's sisters-in-law described Owens's husband as a good man. One described Owens as having a bad temper, and the other reported that Owens was verbally abusive toward her husband.
There were multiple letters attached to the probation report, including a letter from Owens that reiterated that she had grabbed a knife to keep her husband away so she could leave and had no intention of harming him. Owens's daughter wrote a letter requesting a shorter sentence for her mother solely out of concern for her disabled brother, for whom Owens was the primary caregiver.
Ultimately, the probation officer recommended that Owens be sentenced to a total term of four years in prison, comprising three years for the count of conviction and one year for the personal use enhancement.
D. The Sentencing Hearing
At the sentencing hearing on October 22, 2021, the prosecutor argued that the numerous text messages sent by Owens to her husband, which belittled him and were "abusive, hostile, rageful and aggressive," belied Owens's claim that she was the victim and he was the aggressor in the relationship. Owens had sent her husband messages calling him a "stupid idiot moron," a "fuck up," and a "catastrophe in every way." The prosecutor insisted that the evidence reflected that Owens was the abuser in the relationship, which led to her husband's death.
Owens countered that she had submitted photographs documenting the injuries she had sustained from her husband's physical abuse. And notwithstanding the text messages she had sent her husband, Dr. Barnard had ultimately concluded that Owens was the victim of intimate partner violence.
After considering the parties' arguments, the trial court noted that Owens had admitted to committing "an act of domestic violence" that "accidentally kill[ed] her husband." The trial court observed that officers had found Owens's "presentation to be peculiar" after speaking to her after the incident, and the trial court expressly stated it did not get the "sense that [Owens's account] was ringing truth." The trial court found that there was "[a]bsolutely" some sort of domestic violence within the household, but the "question is what type" and "by whom." The trial court further noted the conflict between statements in support of Owens describing her as a "gentle, kind" soul, and Owens's "vi[le], disrespectful, dehumanizing" messages to her husband. Multiple individuals also described Owens as having a bad temper, and she was often seen insulting and berating her husband.
Considering the pictures submitted by Owens of her injuries, the trial court stated, "[t]hat's violence in the home, absolutely," but Owens's text messages did not give "the impression that [Owens] was a cowering victim of violence." Yet the trial court noted that "[o]n [their] face, the pictures are probative evidence of domestic violence perpetrated on Ms. Owens."
The trial court also focused on a particular text message exchange that took place on July 24, 2019, about a month before the crime. That day, Owens sent her husband a number of text messages berating him for not having money in the bank, calling him a "pussy," that he had an "ineptitude to be a man," and that he could borrow money from their son even though he would never pay it back. The trial court noted that the injuries that Owens had documented and submitted to the court corresponded with the date of these messages. And that same night, Owens sent her husband a message that read, "These will look a lot worse tomorrow." The trial court opined that the sequence of events as described did not "give . . . the sense that [Owens] was alone in that violence" and that Owens's husband's response to his wife was "pretty consistently throughout the text messages was to ignore or just say stop. That's it. That was his response to this type of abuse." The trial court also observed: "When you have an individual, no matter how docile he or she might be and you continue to pry and prod that person, poke the person, pick at their sores, talk about that person's abilities, talk about the relationship with her children, these sorts of things, at some point someone would just explode on someone." But the trial court noted that Owens's assertion that her husband became enraged after she said she was going to leave him did not make sense because Owens had already repeatedly told her husband in the past that she wanted to leave him. The trial court remarked, "It . . . doesn't make any sense for [Owens's husband] to blow up ...."
The trial court then observed that Owens's case was "presumptively a prison case" due to her admission that she had personally used a deadly weapon unless the court could find unusual circumstances. But the trial court noted that its review of the law did not permit it to find unusual circumstances, though the letter from Owens's daughter in particular "resonated" with the trial court.
Thereafter, the trial court sentenced Owens to the middle term of three years for involuntary manslaughter and an additional year for her personal use of a deadly weapon, for a total of four years in prison. The trial court noted that there were not enough aggravating circumstances for the trial court to impose the maximum sentence as the "aggravating and mitigating circumstances balance out." The minute order prepared after the sentencing hearing reflects that the remaining counts and allegations in the case were dismissed.
II. DISCUSSION
The sole issue on appeal is whether Owens-who was sentenced to the middle term of three years for involuntary manslaughter-is entitled to a remand for resentencing due to recent amendments made to section 1170, subdivision (b)(6) that were effectuated by Senate Bill No. 567.
Effective January 1, 2022, section 1170, subdivision (b)(6) now provides that: "[U]nless 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: [¶] . . . [¶] (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." The Attorney General appropriately concedes that the new version of section 1170, subdivision (b)(6) is retroactive and applies to Owens's case. (See In re Estrada (1965) 63 Cal.2d 740, 745; People v. Flores (2022) 73 Cal.App.5th 1032, 1039 (Flores).)
The Attorney General, however, argues that despite the retroactivity of section 1170, subdivision (b)(6), remand is not required because the trial court in this case already considered intimate partner violence in its sentencing decision and ultimately imposed the middle term after concluding that the "aggravating and mitigating circumstances balance out." Thus, the Attorney General insists that the record reflects that the trial court implicitly found that the middle term-not the lower term-was consistent with the interests of justice.
Where a sentencing court was unaware of the scope of its sentencing discretion under later-enacted law, "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.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez) [remand required after California Supreme Court eliminated presumption of life without the possibility of parole for juveniles convicted of special circumstance murder]; People v. McDaniels (2018) 22 Cal.App.5th 420, 428 [remand required to determine whether trial court would exercise its newly established discretion to strike a firearm enhancement following legislative amendment].)
Multiple appellate courts have applied the standard set forth in Gutierrez to determine whether remand is required to permit the trial court to exercise its sentencing discretion following the retroactive application of section 1170, subdivision (b)(6). (People v. Banner (2022) 77 Cal.App.5th 226, 242 (Banner) [remand required when record did not clearly indicate trial court would have selected middle term if section 1170, subdivision (b)(6) had been in effect]; People v. Gerson (2022) 80 Cal.App.5th 1067, 1096 [accord]; People v. Salazar (2022) 80 Cal.App.5th 453, 462-463, review granted Oct. 12, 2022, S725788 (Salazar) [applying Gutierrez standard but concluding that record clearly indicated that trial court would not have applied a lower term sentence under section 1170, subdivision (b)(6)].) Applying Gutierrez, we conclude that the record does not clearly indicate that the trial court would have reached the same conclusion had section 1170, subdivision (b)(6) been in effect at the time of the sentencing hearing.
When granting review in Salazar, the California Supreme Court limited review to the following issue: "Did the Court of Appeal err by finding the record clearly indicates the trial court would not have imposed a low term sentence if it had been fully aware of its discretion under newly-added subdivision (b)(6) of Penal Code section 1170? (See People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)"
First, there is some evidence in the record of intimate partner violence between Owens and her husband, which the trial court might conclude supports the presumption of the lower term as described in section 1170, subdivision (b)(6). We are dubious of Owens's characterization of the trial court's findings. The trial court's remarks strike us as much more ambiguous and less favorable to her position than Owens represents. The record certainly reflects that the trial court considered the existence of intimate partner violence when sentencing Owens, as it was briefed by the parties and discussed at length at the sentencing hearing. Yet the trial court also found Owens's presentation of the facts to be "peculiar," implying that it was unsure whether Owens was the aggressor or the victim (or both) in the relationship. During the sentencing hearing, the trial court observed that Owens had sent her husband a multitude of verbally abusive text messages, and Owens was generally characterized by others as being the more aggressive partner.
Although the record demonstrates that the trial court had reservations about Owens's characterization of her relationship with her husband and the events leading up to the crime, the court's statements are nonetheless ambiguous in their circumspection. The trial court made no specific finding as to whether Owens was the victim of intimate partner violence, or whether intimate partner violence contributed to her underlying offense. And in Owens's support, the trial court remarked during the hearing that that there was "[a]bsolutely" some domestic violence within the household, specifically referencing that the photos that Owens had submitted tended to corroborate her claims. One straightforward reading of the trial court's characterization of the photos as "[o]n [their] face, . . . probative evidence of domestic violence perpetrated on Ms. Owens" is that the trial court made a factual finding that Owens's husband had inflicted the injuries in abusing her. In other words, the record does not clearly indicate that the trial court would have found section 1170, subdivision (b)(6) inapplicable. (See Gutierrez, supra, 58 Cal.4th at p. 1391.)
This record does not, however, permit us to rule out an alternative interpretation-that the trial court deliberately stopped short of such a finding, because the face value of the photographs conflicted with the trial court's determination of who in the family was the primary, dominant, or only aggressor.
Second, the record does not clearly indicate that the trial court would have nonetheless imposed a middle term had section 1170, subdivision (b)(6) been in effect. Here, when selecting the middle term, the trial court noted: "I don't find this to be a case [where] I can find aggravating circumstances to impose more of that." The trial court also stated that the "aggravating and mitigating circumstances balance out," rendering this "a mid term case." Section 1170, subdivision (b)(6) now establishes a presumption of a lower term if its provisions apply. (See Flores, supra, 73 Cal.App.5th at p. 1039; Banner, supra, 77 Cal.App.5th at p. 241.) Before the trial court can deviate from this presumption, it is now required to find that the aggravating circumstances outweigh the mitigating circumstances such that the lower term would be contrary to the interest of justice before it may deviate from the lower term. (§ 1170, subd. (b)(6).) That the trial court considered this to be a "mid term case" before the Legislature created a new presumption of a lower term does not preclude the possibility that the court would reassess the aggravating and mitigating circumstances and come to a different conclusion on remand.
Based on the foregoing, we conclude that it is appropriate to remand the matter for resentencing, as it is unclear whether the trial court would have imposed the same sentence under the current law. (See Gutierrez, supra, 58 Cal.4th at p. 1391.) We express no opinion as to whether the trial court, on remand, should in fact find that Owens was a victim of intimate partner violence, and if so, whether the intimate partner violence was a "contributing factor" to her commission of the offense. (§ 1170, subd. (b)(6).) We also do not express an opinion as to what the appropriate sentence should be. These are issues that the trial court may resolve or clarify in the first instance in the exercise of its informed discretion under the new law.
And finally, we need not reach the Attorney General's contention that the prosecutor should be "given the election of proceeding under the new version of section 1170, subdivision (b), or accepting resentencing" on the current record because the trial court relied on factors in aggravation that were neither admitted by Owens nor found true by a jury. We construe this contention as a request that the prosecutor be given the opportunity-if it so elects-to prove any aggravating circumstances to a jury and further contest any mitigating factors on remand. However, the issue Owens raises is not whether the trial court impermissibly relied on aggravating circumstances but whether the existence of a mitigating circumstance-intimate partner violence-requires the imposition of a lower term under the new law. Nothing in the record indicates that either side was denied a full and fair opportunity to litigate the existence or nonexistence of any mitigating or aggravating circumstance. Likewise, there is no requirement that aggravating circumstances be found true beyond a reasonable doubt unless those aggravating circumstances are relied upon by the trial court to impose an upper term sentence as described under section 1170, subdivision (b)(2). As the trial court in this case imposed the presumptive middle term, its consideration of aggravating factors that were not found true by a jury did not render its sentence infirm under the Sixth Amendment or the new section 1170, subdivision (b)(2).
Owens, in her reply brief, asserts that "a new, full resentencing hearing should take place on remand." To the extent this may reflect the expectation of an evidentiary hearing, we leave to the trial court to decide on remand whether to permit further evidence regarding the application of section 1170, subdivision (b)(6).
III. DISPOSITION
The judgment is reversed and the matter is remanded for resentencing under Senate Bill No. 567 so that the trial court may determine whether Owens was a victim of intimate partner violence that contributed to her underlying offense, and, if so, whether the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice. (§ 1170, subd. (b)(6).)
WE CONCUR: GREENWOOD, P.J., GROVER, J.