Opinion
H049787
12-22-2022
THE PEOPLE, Plaintiff and Respondent, v. ANDREW RAMIREZ, Defendant and Appellant.
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. 20CR010076
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
Defendant Andrew Ramirez pleaded no contest to second degree robbery (Pen. Code, § 211) and child endangerment (§ 273a, subd. (a)). He also admitted that he had suffered a prior strike conviction (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)). After the trial court denied his motion to dismiss his strike prior pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), the court sentenced defendant to six years eight months in prison.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that the trial court, in denying his Romero motion, failed to properly apply section 1385, subdivision (c) pertaining to "enhancement[s]" and that a remand is necessary. Defendant also argues that a remand is necessary to ensure that the trial court made a "knowing and intelligent sentencing choice" in sentencing him to consecutive rather than concurrent terms.
For reasons we will explain, we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
The facts underlying defendant's offenses are taken from the preliminary hearing transcript, which provided the factual basis for his pleas.
On the afternoon of November 23, 2020, the victim was in his vehicle after depositing money at a credit union. Defendant approached the vehicle and asked the victim to open the driver's door. Defendant had his young child with him.
The victim opened the door to find out what defendant wanted. Defendant told the victim that it was an emergency and that he needed to use the vehicle. The victim was confused. The victim eventually saw a knife in defendant's hand, and the knife was "slightly pointed towards [the victim]." Defendant told the victim to get out of the vehicle, and the victim complied. Defendant put his child in the vehicle and drove off. The victim called 911.
The police saw the vehicle and attempted to stop defendant. At times, defendant was speeding at more than 81 miles per hour in a 60-mile-per-hour zone and engaging in unsafe lane changes. At one point, defendant appeared to yield to the officers. When an officer exited his vehicle, defendant drove off. Defendant eventually yielded again and was taken into custody.
The child was in the backseat and appeared scared. The victim was brought to the scene, and he identified a pocketknife on the front passenger seat as belonging to defendant.
Defendant denied that he had a knife. He acknowledged that the vehicle did not belong to him and that he took it anyway. He told the police that he was in fear for his safety and that, for the safety of his daughter and because she was tired, he wanted to get a ride. Defendant also admitted that he saw police vehicles behind him with their lights and sirens, but that he did not want to stop because he was in the middle of the road.
Many of defendant's statements did not make sense to the police. Defendant told the police that he had taken fentanyl. He was transported for a medical check instead of being taken directly to jail.
Defendant's wife reported that defendant had been acting "very odd" for the last 24 hours, that he had a dazed and confused look, and that he had been "wandering around." She also reported that he had been subject to a mental health hold recently.
B. The Charges, Pleas, and Sentencing
On March 4, 2021, defendant was charged by information with carjacking (Pen. Code, § 215, subd. (a); count 1), evading an officer with willful disregard for safety (Veh. Code, § 2800.2, subd. (a); count 2), misdemeanor child endangerment (Pen Code, § 273a, subd. (b); count 3), and misdemeanor driving without a license (Veh. Code, § 12500, subd. (a); count 4). The information also alleged that defendant had suffered one prior strike conviction (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)).
On November 30, 2021, the information was amended on motion of the prosecutor to add a count for second degree robbery (§ 211; count 5), a count for felony child endangerment (§ 273a, subd. (a); count 6), and a prior strike allegation as to both new counts. Defendant pleaded no contest to the newly added counts and admitted that he had suffered a prior strike conviction for attempted robbery. He entered his pleas and admission with the understanding that he would receive a "top" of eight years eight months unless a Romero motion was granted, in which case he could receive a grant of probation. The remaining counts were taken under submission for dismissal at the time of sentencing.
C. The Romero Motion and Opposition
On December 29, 2021, defendant filed a Romero motion requesting that the trial court dismiss his prior strike conviction. Defendant observed that section 1385 would be amended effective January 1, 2022. He argued that the court, in ruling on the motion, should consider the factors set forth in the amended statute, including that the current offenses were connected to mental illness and childhood trauma and that his prior strike conviction was more than five years old.
Regarding his prior 2011 strike conviction for attempted robbery, defendant contended that he was 18 years old at the time. He argued that he was placed on probation for three years and that he completed probation "without incident." Defendant contended that he had no further contact with the criminal justice system until the recent offenses.
Defendant argued that the instant offenses occurred as a result of him hearing voices and seeing images which caused him to believe that he needed to protect himself and his child. Regarding drug use, defendant indicated that he started using methamphetamine so that he could work longer hours to support his family. After he hurt his back at work, he took pain medication which led to his use of fentanyl. He was eventually terminated from work.
Defendant contended that he would not be a danger to the public as long as he was given the opportunity to participate in substance abuse treatment and continued education regarding childhood trauma that he had experienced. Defendant requested that the court dismiss his prior strike conviction, impose a four-year four-month sentence, suspend execution of the sentence, and place him on probation.
Defendant filed several documents in support of the motion. A clinical psychologist's report indicated that defendant appeared to be influenced by the "disorganizing effects of a drug-induced psychosis" at the time of the offenses and recommended treatment for his childhood trauma, ongoing depression, and substance abuse issues. A county behavioral health report indicated that defendant had been placed on a "5150 hold for danger to self" in mid-2020. Defendant's trial counsel stated in a declaration that defendant's partner reported being in a relationship with defendant for 10 years. Defendant had worked consistently to support the family, which included one child they had together as well as four children from the partner's prior relationship.
The prosecutor filed written opposition to defendant's Romero motion. The prosecutor contended that defendant's prior strike conviction involved him armed with a knife and a coperpetrator armed with a firearm and the pair attempting to rob a female walking home from work. After defendant and the coperpetrator demanded the victim's belongings, defendant tried to grab the victim's cell phone. The victim screamed and the pair ran to a van and left the scene. The prosecutor argued that defendant's actions in the earlier attempted robbery "demonstrated a selfish frame of mind consistent with his actions in this case," in which he also endangered his young child. Under the circumstances, the prosecutor contended that the motion to dismiss the prior strike conviction should be denied.
D. The Probation Report
Defendant told the probation officer that he was under the influence of fentanyl when he committed the instant offenses, that the offenses would not have happened if he was not under the influence, and that he felt sorry for the victim. He reported using fentanyl daily. Defendant indicated that he was willing to participate in substance abuse treatment and that he wanted to be present in his child's life.
E. The Romero Hearing and Sentencing
A hearing was held on defendant's Romero motion on February 1, 2022. The prosecutor acknowledged that defendant's criminal history was "limited," that he had satisfactorily completed probation for the prior attempted robbery, and that the "age" of the prior conviction was years ago. However, the prosecutor contended that the instant offense involved defendant committing a carjacking while his young child was present and defendant fleeing from law enforcement while the child was not properly restrained in a car seat in the vehicle. The prosecutor requested that the trial court sentence defendant to eight years eight months in prison or, if the Romero motion was granted, to impose the middle term for the robbery and one-third the middle term for the child endangerment count.
Defendant's trial counsel argued that defendant had just turned 18 years old when he was convicted of the prior strike offense. After defendant met his partner, he "effectively adopted" her four children and they had a child of their own. The family was "the center of his entire world," and defendant worked to provide for them. The stress, among other things, led to a "horrendous drug addiction" and he eventually lost his job. Counsel argued that defendant was sorry for putting his child through the incident and for the pain he caused the victim. Counsel requested that the court grant the motion and place defendant on probation. If the court was not inclined to grant probation, counsel requested that defendant be sentenced to the low term in view of his mental health issues.
The trial court stated that it had "really been challenged in terms of considering what a fair and just disposition is in this case." The court explained that there were "a lot of challenges because there's a lot to say about the circumstances that have been presented to this Court in terms of [defendant's] background." The court expressed its understanding that it had the authority to dismiss a prior strike pursuant to section 1385, subdivision (a), and that the California Supreme Court had "set out guidelines for lower courts to apply in deciding whether to strike a three strikes conviction." The trial court observed that the "touch[s]tone for that determination is whether in light of the nature and circumstances of [defendant's] present felonies and prior serious or violent felony conviction and the particulars of his background, character, and prospects, [defendant] may be deemed outside the three strikes scheme spirit in whole or in part, and hence, should be treated as though he had not previously been convicted of a serious or violent felony in the past."
The trial court also observed that section 1385, subdivision (c) set forth various factors which would "strongly support the exercise of the Court's discretion to dismiss one or more enhancements." In that regard, the court observed that defendant's prior strike conviction was more than five years old and that defendant had mental health issues. The court also observed that defendant's drug abuse, which included methamphetamine and fentanyl use, caused a part of his mental health issues.
While "recogniz[ing] those circumstances," the trial court expressed "significant" concern about defendant's conduct in the underlying strike conviction for attempted robbery and in the current violent felony, a robbery. The court observed that defendant was "armed with a knife during the commission of crimes in both cases." The instant offense also involved defendant's child, who was unrestrained in a vehicle while defendant led officers on a high speed chase. The court observed that although defendant had been placed on probation in the prior case and thus "he had been taught through the application of formal sanction that such criminal conduct was unacceptable, . . . he has failed or refused to learn his lesson." Further, although defendant had not had further contact with the criminal justice system until the current offenses, he had "not led a law abiding life" during the interim, as "he admitted possessing, using, and being under the influence of controlled substances," including methamphetamine and fentanyl. "But instead of seeking help, he continued to use . . . and he committed the present felony strike offense." The court ultimately concluded as follows: "[Defendant's] second robbery-related offense was with the use of a deadly weapon, a knife. [Defendant] cannot be deemed outside the spirit of the three strikes law scheme and may not be treated as though he had been previously -- had none. [¶] This Court will not exercise its discretion to strike the strike allegation pursuant to [section] 1385. Doing so would not be in furtherance of justice in this particular case. [Defendant's] Romero motion is respectfully denied." (Italics added.)
The trial court proceeded to sentence defendant as follows: "As to Count 5, the Court imposes the low term of 2 years. The Court feels that the low term is the righteous term to impose under the circumstances; not the middle or any aggravated term, but the low term. [¶] So 2 years is imposed. That term is doubled pursuant to the admissions of the strike allegation for a total term of 4 years to be served in the California Department of Corrections and Rehabilitation. [¶] As to Count 6, the Court imposes one-third of the middle term, which is 16 months, and that is doubled pursuant to . . . the admission of the special strike allegation under Penal Code Section 1170.12(c)(1) for a total subordinate and consecutive term of 32 months. [¶] The total aggregate term imposed is 6 years, 8 months, which is below the stipulated top negotiated between the parties." The remaining counts were dismissed.
III. DISCUSSION
A. Section 1385
Defendant contends that the trial court applied the wrong legal standard in denying his Romero motion. He argues that the court failed to properly apply section 1385, subdivision (c), which was added to section 1385 effective January 1, 2022, pursuant to Senate Bill No. 81 (2021-2022 Reg. Sess.). (See Stats. 2021, ch. 721.) According to defendant, newly added subdivision (c) "recalibrated the standards set forth in Romero, supra, 13 Cal.4th 497, and later clarified in People v. Williams (1998) 17 Cal.4th 148." Defendant contends that the court, however, "treated new . . . [subdivision (c)] as a provision that existed independently and that had not altered the Romero-Williams analytical framework." According to defendant, new subdivision (c) "significantly altered the analytical calculus" for determining whether a prior strike conviction should be dismissed. Defendant argues that the court therefore "applied the wrong standard in denying the Romero motion" and that "remand is an appropriate remedy." Second, defendant contends that section 1385, subdivision (c), which provides that "all enhancements beyond a single enhancement shall be dismissed" (id., subd. (c)(2)(B)), required the court to dismiss his prior strike conviction as to at least one of the two counts to which he pleaded no contest. Defendant acknowledges that his two claims are premised on his contention that section 1385, subdivision (c)'s reference to "enhancement" applies to the Three Strikes law.
The Attorney General contends that the provisions of section 1385, subdivision (c) regarding enhancements do not apply in this case because the Three Strikes law is not an enhancement.
1. Striking of Prior Strike Under Section 1385, Subdivision (a)
At all relevant times, subdivision (a) of section 1385 has provided that a trial court "may, . . . in furtherance of justice, order an action to be dismissed." The California Supreme Court has "explained that the 'power to dismiss an action'" under section 1385, subdivision (a)" 'includes the lesser power to strike . . . allegations' or vacate findings 'relevant to sentencing, such as the allegation' or finding 'that a defendant has prior felony convictions.' [Citations.]" (People v. Williams (1998) 17 Cal.4th 148, 151 (Williams).) The court has specifically held that "a trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, 'in furtherance of justice' pursuant to Penal Code section 1385(a)." (Id. at p. 158.)
Regarding a trial court's discretion to strike a prior strike, the California Supreme Court has explained that the" 'Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts' discretion in sentencing repeat offenders.' (Romero, supra, 13 Cal.4th at p. 528.) To achieve this end, 'the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court "conclud[es] than an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme."' [Citation.]" (People v. Carmony (2004) 33 Cal.4th 367, 377.) "[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, 'in furtherance of justice' pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of [the defendant's] background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though [the defendant] had not previously been convicted of one or more serious and/or violent felonies." (Williams, supra, 17 Cal.4th at p. 161.)
2. Striking of Enhancements Under Section 1385, Subdivisions (b) and (c)
Subdivision (b) of section 1385 pertains to enhancements and provides as follows: "If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a)." (§ 1385, subd. (b)(1).)
Effective January 1, 2022, section 1385 was amended to add a new subdivision (c), which also specifically pertains to enhancements. (See Stats. 2021, ch. 721.) Relevant to this appeal, subdivision (c) of section 1385 currently states:
"(1) Notwithstanding any other law, the court shall dismiss an enhancement if it is in the 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.
"(A) Application of the enhancement would result in a discriminatory racial impact as described in paragraph (4) of subdivision (a) of Section 745.
"(B) Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed.
"(C) The application of an enhancement could result in a sentence of over 20 years. In this instance, the 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. "(F) The current offense is not a violent felony as defined in subdivision (c) of Section 667.5.
"(G) The defendant was a juvenile when they 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.
"(H) The enhancement is based on a prior conviction that is over five years old. "(I) Though a firearm was used in the current offense, it was inoperable or unloaded.
"(3) While the court may exercise its discretion at sentencing, this subdivision does not prevent a court from exercising its discretion before, during, or after trial or entry of plea.
"(4) The circumstances listed in paragraph (2) are not exclusive and the court maintains authority to dismiss or strike an enhancement in accordance with subdivision (a)." (§ 1385, subd. (c)(1)-(4).)
Newly added subdivision (c) "appl[ies] to all sentencings occurring after January 1, 2022." (§ 1385, subd. (c)(7).)
3. Analysis
The parties dispute whether section 1385, subdivision (c), which pertains to enhancements, applies to the Three Strikes law. In construing subdivision (c), we apply well established principles of statutory construction." 'We start with the statute's words, which are the most reliable indicator of legislative intent.' [Citation.]' "We interpret relevant terms in light of their ordinary meaning, while also taking account of any related provisions and the overall structure of the statutory scheme to determine what interpretation best advances the Legislature's underlying purpose."' [Citations.] 'If we find the statutory language ambiguous or subject to more than one interpretation, we may look to extrinsic aids, including legislative history or purpose to inform our views.' [Citation.]" (In re A.N. (2020) 9 Cal.5th 343, 351-352 (A.N.).)
Subdivision (c) of section 1385 applies to the dismissal of an "enhancement." (§ 1385, subd. (c)(1).) "Ordinarily words used in a statute are presumed to be used in accordance with their established legal or technical meaning." (People v. Carter (1996) 48 Cal.App.4th 1536, 1540.) "The term 'enhancement' has a well-established meaning in California law." (In re Anthony R. (1984) 154 Cal.App.3d 772, 776.) "An enhancement is 'an additional term of imprisonment added to the base term' prescribed by statute for a given offense. [Citation.]" (People v. Tirado (2022) 12 Cal.5th 688, 695, fn. 9; see Cal. Rules of Court, Rule 4.405(5).)
Relevant here, "[t]he Three Strikes law is a penalty provision, not an enhancement. It is not an enhancement because it does not add an additional term of imprisonment to the base term. Instead, it provides for an alternate sentence . . . when it is proven that the defendant has suffered . . . prior serious [or violent] felony convictions. [Citation.]" (People v. Williams (2014) 227 Cal.App.4th 733, 744; accord, People v. Cressy (1996) 47 Cal.App.4th 981, 991 ["the three strikes provisions . . . articulate an alternative sentencing scheme," and "[t]his alternative sentencing structure is not an 'enhancement' provision"]; People v. Frutoz (2017) 8 Cal.App.5th 171, 174, fn. 3 [Three Strikes law is an alternative sentencing scheme, not an enhancement].) Because we do not find the statutory language ambiguous or subject to more than one interpretation (see A.N., supra, 9 Cal.5th at pp. 351-352; Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063), we need not consider the legislative history cited by defendant.
In sum, the plain language of subdivision (c) of section 1385 applies only to an "enhancement," and the Three Strikes law is not an enhancement. We therefore determine that section 1385, subdivision (c)'s provisions regarding enhancements do not apply to the Three Strikes law. Defendant therefore fails to demonstrate error in the trial court's purported failure to properly apply subdivision (c) of section 1385.
B. Concurrent or Consecutive Sentences
Defendant contends that a remand is necessary to ensure that the trial court made a "knowing and intelligent sentencing choice" in sentencing him to consecutive rather than concurrent terms. He observes that the probation report did not address concurrent versus consecutive sentences, and at sentencing, the trial court stated only that the sentence on count 6 was for a "consecutive term of 32 months" without any statement of reasons. Defendant acknowledges that "a failure to state reasons for a sentence choice is forfeited if defense counsel," as in this case, "raises no objection to the omission." He argues, however, that the probation report contains errors regarding aggravating and mitigating factors which the trial court presumably relied upon, and that trial counsel rendered ineffective assistance of counsel by failing to correct the errors, to address the choice between concurrent and consecutive sentences, and to object to the court's failure to state its reasons for the choice.
The Attorney General contends that the claimed errors regarding the probation report and the trial court's failure to state its reasons are forfeited by defendant's failure to object below. The Attorney General also argues that defendant fails to establish a claim of ineffective assistance of counsel.
1. Sentencing Discretion and Forfeiture of Claims
Rule 4.425 of the California Rules of Court provides that "[f]actors affecting the decision to impose consecutive rather than concurrent sentences include" "[f]acts relating to the crimes" and "[a]ny circumstances in aggravation or mitigation," except a fact used to impose the upper term or to otherwise enhance a prison sentence, or a fact that is an element of a crime. (Rule 4.425(a) &(b)(1)-(3).) Imposing a consecutive sentence is a "[s]entence choice[] that generally require[s] a statement of reason." (Rule 4.406(b)(4).)
All further rule references are to the California Rules of Court.
The California Supreme Court has held that a defendant who fails to object below forfeits "claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices. Included in this category are 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 (1994) 9 Cal.4th 331, 353.) In this case, defendant's claims that the trial court (1) failed to properly make a discretionary sentencing choice regarding consecutive or concurrent sentences and (2) failed to state its reason for imposing a consecutive sentence are forfeited because defendant failed to raise the claims below. We therefore turn to his claim of ineffective assistance of counsel.
2. Ineffective Assistance of Counsel
" 'In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating . . . that counsel's performance was deficient because it "fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms." [Citations.] . . . If a defendant meets the burden . . ., he or she also must show that counsel's deficiencies resulted in prejudice, that is, a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." [Citation.]' [Citation.]" (People v. Lopez (2008) 42 Cal.4th 960, 966.) Prejudice requires a showing of "a' "demonstrable reality," not simply speculation.' [Citations.]" (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
In this case, defendant fails to demonstrate prejudice.
First, regarding his contention that trial counsel should have objected to errors in the probation report regarding the circumstances in aggravation and mitigation, it is apparent from the trial court's statements during the sentencing hearing that the court was well aware of the correct facts in relation to the offenses and to defendant. For example, defendant contends that the probation report erroneously indicated as circumstances in aggravation that defendant had served prior prison terms; that his prior convictions were numerous or of increasing seriousness; and that the manner in which the crime was carried out indicated planning, sophistication, or professionalism. (Rule 4.421(a)(8) &(b)(2), (3).) He also argues that the probation report erroneously failed to include as circumstances in mitigation that the crime was committed because of an unusual circumstance and unlikely to recur, and that he was suffering from a mental or physical condition that significantly reduced his culpability for the crime. (Rule 4.423(a)(3), (b)(2).) At sentencing, however, the court referred to defendant's single prior conviction and the fact that he had been placed on probation for that conviction, and the court correctly recited in detail the facts of both the prior conviction and the current offenses. The court also "recognize[d]" the circumstances leading up to the current offenses, including defendant's "mental health difficulties," his drug abuse, and the "considerable emotional stress" that defendant had suffered. On this record, defendant fails to establish that had trial counsel objected to the purported errors in the probation report concerning aggravating and mitigating circumstances, it is reasonably probable the court would have imposed a different sentence.
Second, defendant likewise fails to show prejudice, that is, a reasonable probability of a different result, if trial counsel had raised and argued the issue of consecutive versus concurrent sentences, or requested a statement of reasons from the trial court on the issue. Defendant's argument of prejudice is premised on the assumption that the trial court held "an erroneous belief that consecutive terms were mandatory." However, "[i]n the absence of evidence to the contrary, we presume that the court 'knows and applies the correct statutory and case law.' [Citations.]" (People v. Thomas (2011) 52 Cal.4th 336, 361.) In this case, there is no evidence in the record that indicates the trial court held an erroneous belief that consecutive terms were mandatory or that the court was otherwise unaware of its discretion to sentence concurrently rather than consecutively. We are also not persuaded by defendant's reliance on People v. Panozo (2021) 59 Cal.App.5th 825 (Panozo). In Panozo, the appellate court determined that a remand for a new sentencing hearing was necessary to ensure that the trial court had satisfied its statutory obligations under sections 1170.9 and 1170.91. (Panozo, supra, at p. 841.) As explained by the appellate court in Panozo, "[s]ections 1170.9 and 1170.91 obligate a sentencing court to consider a criminal defendant's qualifying [military] service-related conditions as mitigating circumstances in making discretionary sentencing choices.... [T]he record strongly suggests the trial court was unaware of its mandatory sentencing obligations, necessitating remand." (Id. at pp. 831-832, fn. omitted.) In this case, neither section 1170.9 nor 1170.91 are at issue. Further, as we have explained, there is no indication that the trial court in this case was unaware of its sentencing discretion regarding consecutive or concurrent terms, and defendant has also failed to demonstrate a reasonable probability of a different result had the issue been raised by his trial counsel.
IV. DISPOSITION
The judgment is affirmed.
WE CONCUR: DANNER, J., WILSON, J.