Opinion
F085427
04-29-2024
THE PEOPLE, Plaintiff and Respondent, v. NATHAN HUSTON POE, Defendant and Appellant.
Heather Monasky, 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, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tuolumne County. No. CRF69843 Donald I. Segerstrom, Jr., Judge. (Retired Judge of the Tuolumne County Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Heather Monasky, 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, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Defendant Nathan Huston Poe was convicted of felony assault and making a criminal threat and was sentenced to six years in prison. He contends the trial court erred by imposing a concurrent term on the criminal threat count rather than staying execution of that count under Penal Code section 654. He also argues the trial court was unaware of its discretion to sentence him in accordance with newly enacted Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 441, § 1) ("AB 518").
All statutory references are to the Penal Code.
We agree the court erred by not staying the term imposed on the criminal threat count, but we reject his claim that the trial court was unaware of its sentencing discretion.
STATEMENT OF THE CASE
An information filed July 21, 2022, charged Poe with assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)); count 1) and making a criminal threat (§ 422, subd. (a); count 2). It was further alleged Poe had suffered a prior conviction within the meaning of the Three Strikes law (§§ 667, subd. (b)-(j), 1170.12). The information also alleged many circumstances in aggravation under California Rules of Court, rule 4.421.
A jury convicted Poe on both counts, and Poe admitted the prior strike allegation in a bifurcated proceeding.
Poe was sentenced on October 25, 2022. On count 1, the trial court imposed the middle term of three years, doubled to six years because of the prior strike. On count 2, the court imposed the middle term of two years, doubled to four years because of the prior strike, to run concurrently with the term imposed on count 1.
FACTS
On July 9, 2022, Poe was living with his father, M. Between 9:00 and 10:00 a.m., as M. was watching television in the living room, Poe came into the room, said M. was "Jason," accused M. of being a child molester, threatened to kill M., and punched M. several times in each side of the face.
M. put his hands up and tried to get out of his chair. Poe jumped on M.'s back and tried to choke M. M. believed Poe tried to kill him. M. escaped the chokehold after a few seconds and went to a police station. Both Poe and M. had slight injuries.
DISCUSSION
The trial court imposed six years on count 1 and a concurrent term of four years on count 2. Poe argues, and the People concede, the court erred by not staying the term imposed on count 2 under section 654. We agree with Poe on this point.
Poe also argues the matter should be remanded for resentencing because the trial court was unaware of its discretion under section 654 as amended by AB 518 to stay the term imposed on either count. He contends the issue was not forfeited despite his failure to raise it below. In the alternative, he argues that if this court finds forfeiture, his counsel was ineffective for not raising the issue. We will reject this claim on the merits as if it were preserved and therefore need not address counsel's performance.
I. Background
Before the sentencing hearing, Poe filed a Romero motion as to his prior strike conviction and the People filed an opposition. Neither party filed a sentencing brief. The probation department's presentence report recommended the court impose the middle term of three years on count 1, doubled because of the prior strike, and impose the middle term of two years on count 2, doubled because of the prior strike, to run concurrently to the term imposed on count 1.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
At sentencing, the trial court first denied the Romero motion. The court then found that section 654 applied here because the two offenses were part of the same course of conduct and incident to one objective. The court then declared count 1 the "principal term" and imposed the six-year term. The court did not explain why it was making count 1 the principal term. The court then reiterated that it believed section 654 applied and imposed the four-year term on count 2 and ordered that it run concurrently to the term imposed on count 1. The court explained count 2 would not be "a subordinate term" because the court "intend[ed] to run it concurrent." Defense counsel did not object or ask the court to do anything different, and the court and parties did not address the applicability of AB 518.
I. Term imposed on count 2 must be stayed
Effective January 1, 2022, AB 518 amended section 654, subdivision (a), to provide in relevant part that "[a]n act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision." (See People v. Jones (2022) 79 Cal.App.5th 37, 43, 45; Stats. 2021, ch. 441, § 1.) The statute previously "required an act or omission punishable in different ways by different laws to be punished under the law that provided for the longest potential term of imprisonment. [AB] 518 amended Penal Code section 654 to afford sentencing courts the discretion to punish an act or omission under either provision." (People v. Mani (2022) 74 Cal.App.5th 343, 351.) The amended statute had been in effect for more than nine months at the time of Poe's sentencing hearing.
Section 654 prohibits multiple punishments for a single criminal act (People v. Jones (2012) 54 Cal.4th 350, 360) and for multiple acts that comprise an "indivisible course of conduct" (People v. Hester (2000) 22 Cal.4th 290, 294)." '[A] court acts in "excess of its jurisdiction" and imposes an "unauthorized" sentence when it erroneously stays or fails to stay execution of a sentence under section 654.'" (People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1004, fn. 2.) At sentencing, the trial court found that the crimes were part of the same course of conduct and incident to one objective. The court therefore should have stayed the term imposed on count 2, not ordered it to run concurrently to the term imposed on count 1.
II. No resentencing required
We next address Poe's claim that the trial court misunderstood the scope of its sentencing discretion. The presumption that the trial court was aware of its sentencing discretion controls the outcome here.
Sentencing decisions are subject to the abuse of discretion standard. (People v. Sandoval (2007) 41 Cal.4th 825, 847; People v. Hicks (2017) 17 Cal.App.5th 496, 512.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.)
" 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez).) Thus, "[a]n abuse of discretion occurs when the trial court ... is unaware of its discretion." (In re White (2020) 9 Cal.5th 455, 470.) However, "[a]bsent evidence to the contrary, we presume that the trial court knew and applied the governing law." (Gutierrez, at p. 1390; see People v. Myers (1999) 69 Cal.App.4th 305, 310 ["The court is presumed to have considered all of the relevant factors[.]"].)
The burden is on the party attacking the sentence to show an abuse of discretion occurred. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) "To meet this burden, the [appellant] must 'affirmatively demonstrate that the trial court misunderstood its sentencing discretion.'" (People v. Lee (2017) 16 Cal.App.5th 861, 866.) We do not infer an abuse of discretion from a silent record. (People v. Czirban (2021) 67 Cal.App.5th 1073, 1097 (Czirban); People v. Gutierrez (2009) 174 Cal.App.4th 515, 527.)
Poe has not shown that the trial court was unaware of its discretion under section 654 to stay the term imposed on count 1 and execute the term imposed on count 2. The record is silent on whether the court understood its section 654 discretion, and therefore we must presume the court was aware of its discretion. Poe argues the presumption should not apply here because the record is "ambiguous" as to whether the trial court understood its discretion, and he cites two cases where the appellate court found the presumption of correctness did not apply because the record was "ambiguous" as to whether the trial court understood its sentencing discretion. Poe seems to suggest that these cases hold that a silent record is an ambiguous record. In our view, Poe misreads these distinguishable cases.
In People v. Ochoa (2020) 53 Cal.App.5th 841 (Ochoa), the trial court was statutorily obligated to consider "youth-related mitigating factors" (§ 190.5, subd. (b)) at sentencing. The offender, a juvenile, was sentenced to a prison term of life without the possibility of parole. (Id. at p. 850.) The record was "at the very least ambiguous as to whether the court understood its [statutory] obligation." (Id. at p. 853.) Although the court was not required to make specific findings on the record, the court only received information concerning youth-related mitigating factors after it had sentenced the juvenile. The transcripts from the sentencing hearing also suggested the court erroneously believed a statutory amendment had either eliminated or modified the requirement to consider youth-related mitigating factors. (Ibid.) Thus, there was strong evidence suggesting that the court did not comply with its statutory obligation under section 190.5. (Id. at pp. 853-854.)
People v. Lua (2017) 10 Cal.App.5th 1004 (Lua), involved a trial court's discretion under section 1385. (Id. at p. 1020.) The record there was "ambiguous" as to whether the trial court understood the scope of its discretion to strike certain drug-related enhancements. (Ibid.) During the sentencing hearing, the court remarked that the 17-year sentence was "the lowest sentence possible" and the "minimum" even though striking the enhancements would result in a sentence of less than 17 years. (Id. at p. 1012.) Because of this ambiguity, the case was remanded for resentencing. (Id. at p. 1022.)
Ochoa and Lua are inapt. In those cases, the record was not silent on whether the court understood its sentencing discretion. Instead, in both cases, statements in the record suggested the court may not have understood the scope of its sentencing discretion, thus making the record ambiguous. By contrast, nothing in our record suggests the court misunderstood its discretion. The record here is silent, not ambiguous, and thus it must be presumed the court understood its discretion. (Gutierrez, supra, 58 Cal.4th at p. 1390.)
We also disagree with Poe that the trial court's discussion of other sentencing choices indicates that it was unaware of its discretion under section 654 as amended by AB 518. That the court mentioned how section 1385 had recently been amended and how it might bear on the court's consideration of Poe's Romero motion does not mean the court failed to recognize AB 518. To reach that conclusion would require us to ignore the presumption that the court understood its discretion and infer error on a silent record, which we cannot do.
DISPOSITION
The matter is remanded to the trial court with directions that the court stay the term imposed on count 2 (making a criminal threat). The judgment is otherwise affirmed. The superior court clerk is directed to prepare a new abstract of judgment and forward copies to the appropriate entities.
[*] Before Levy, Acting P. J., Pena, J. and Snauffer, J.