Opinion
F084244
04-26-2024
THE PEOPLE, Plaintiff and Respondent, v. CALVIN MARON ROBINSON, Defendant and Appellant.
Gillian Black, 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, Julie A. Hokans and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Super. Ct. No. F20904926, Michael G. Idiart, Judge.
Gillian Black, 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, Julie A. Hokans and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MEEHAN, J.
A jury found defendant Calvin Maron Robinson guilty of shooting at an inhabited dwelling and possession of a firearm by a felon. As to the former count, the jury found true that defendant personally discharged a firearm causing great bodily injury (GBI). Defendant was sentenced to seven years plus 25 years to life.
Defendant raises four issues on appeal. First, defendant claims that it was an abuse of discretion for the trial court to admit evidence of his gang affiliation and evidence that he was subject to a warrantless search. Second, he argues that the court improperly imposed an upper term sentence without the jury finding aggravating circumstances true as required under Penal Code section 1170, subdivision (b), as amended by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567). Third, he argues that the court did not meet its statutory obligation to consider his youth as a contributing factor of the offense as required under section 1170, subdivision (b)(6)(B) as amended by Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Assembly Bill 124). Lastly, he argues that the abstract of judgment should be amended because it does not reflect the oral pronouncement of judgment. The People disagree as to defendant's first arguments, but agree that an amended abstract of judgment should issue. We direct the trial court to issue an amended abstract of judgment and affirm.
Undesignated statutory references are to the Penal Code.
PROCEDURAL BACKGROUND
On September 14, 2020, the Fresno County District Attorney filed an information charging defendant with shooting at an inhabited dwelling (§ 246; count 1), child abuse with personal infliction of GBI (§ 273a, subd. (a); count 2), and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 3). As to count 1, the information alleged defendant personally and intentionally discharged a firearm, causing GBI (§ 12022.53, subd. (d)). As to count 2, the information further alleged defendant personally inflicted GBI (§ 12022.7, subd. (a)).
Count 2 was dismissed pursuant to a motion under section 1118.1.
A jury found defendant guilty as charged on counts 1 and 3 and it found true the firearm allegation associated with count 1.
The court sentenced defendant to an aggregate term of seven years, plus 25 years to life as follows: on count 1, seven years (the upper term), plus 25 years to life for the associated firearm enhancement; on count 3, two years (the middle term), concurrent to the term on count 1.
FACTUAL BACKGROUND
J.S. first met defendant about a year and a half prior to the offense while living in an apartment complex in southeast Fresno (the apartments). Defendant told J.S. that he was from the Hoover gang. J.S. associated with Country Boy Crips gang. J.S. sold a speaker to defendant's girlfriend for $20. For a period of six months predating July 23, 2020, defendant could be searched by any law enforcement officer without a warrant. Starting in about April, J.S. held defendant's firearm for him because defendant did not want to get caught with it. Thereafter, J.S. told defendant that the firearm had been stolen. Defendant wanted J.S. to pay him $750 for the stolen firearm.
All further dates refer to the year 2020 unless otherwise stated.
J.S. made three payments to defendant totaling $350. J.S. initially stopped paying defendant for the firearm because he was having money troubles. He had a child to take care of and would spend money on marijuana. J.S. stopped making payments altogether because of defendant's threats. Defendant came by J.S.'s house multiple times, threatening him and looking for money. On one occasion, defendant threatened J.S. with a firearm. On another occasion, defendant told J.S., "'If you don't get me my money, there's going to be problems.'" On another occasion, defendant confronted J.S. about the money by grabbing the handle of a firearm and pulling it up from his beltline area.
About a week before July 23, J.S. told defendant that he was not going to repay him for the stolen firearm. Defendant pointed a firearm at J.S. J.S. got angry and said he was willing to fight defendant if he came over to his house again.
On July 23, J.S. lived with K.M., among others, in the apartments. On the same day, there was a shooting at about 3:00 a.m. The air mattress that J.S. was sleeping on started to deflate because it was struck by a bullet. J.S. walked out of his bedroom and saw K.M. bleeding. K.M. had been shot. An ambulance arrived and K.M. was taken to the hospital.
During initial questioning, J.S. did not tell the police who may have shot at his residence. He did not want to be involved or testify against defendant. J.S. did not tell the police he associated with the Country Boy Crips. About five hours after the shooting, J.S. then told police that he and defendant had an argument over a set of speakers. J.S. eventually provided a more complete statement to the police.
On July 24, after defendant was detained, the police searched the apartment that defendant was inside at the time of detainment. Inside the bottom left drawer of the refrigerator in the apartment, a police officer found a nine-millimeter semiautomatic firearm with a magazine next to it. When the officer initially found the firearm, it was warm to the touch. The police also seized defendant's cell phone.
The firearm, shell casings, and bullets that were recovered in this case from the scene of the crime, inside the apartment where K.M. was shot, and the bullet recovered from K.M.'s body, were analyzed by a Department of Justice assistant lab director. The lab director determined that the bullets and shell casings were all fired from the firearm recovered in this case, the nine-millimeter semiautomatic firearm.
Video surveillance taken just after the shooting showed a slender figure walking west wearing dark clothing with shoes that had noticeable white soles. Surveillance video from another camera near the scene showed what appeared to be a slender person walking on the street at what would have been approximately 2:35 a.m., which showed the white portion of the person's shoes.
Defendant's cell phone contained a video that was played for the jury. The video showed defendant pulling out a firearm from his pants pocket, holding, and waving it. The firearm appeared to be the same firearm that was recovered from the refrigerator in the apartment where defendant was apprehended. Defendant's shoes on the cell phone video also looked like the shoes worn by the suspect on the surveillance video. On July 24, defendant's cell phone received a text from someone stating: "'Hey, Bruh, put the s[**]t under the fridge.'"
DISCUSSION
I. Admissibility of Evidence
Defendant contends that the trial court abused its discretion when it admitted evidence regarding defendant's gang affiliation and the fact that he was subject to search and seizure at any time prior to the commission of the crime, citing Evidence Code sections 1101, 350, and 352 for the proposition that the evidence bore no relation to the disputed issues and was prejudicial without having any probative value.
The People respond that the evidence was relevant to motive, credibility, intent, and the probative value of the evidence was not outweighed by potential unfair prejudice. (Evid. Code, §§ 210, 352, 1101, subd. (b).)
We conclude that the trial court did not abuse its discretion.
A. Additional Background
During motions in limine, the prosecution sought permission to present evidence regarding defendant's gang affiliation and defendant being subject to search and seizure at any time prior to the commission of the crime. The prosecutor explained that the relevance of the evidence was to explain why J.S. had defendant's firearm, why defendant needed a firearm in the area, but could not risk being caught in possession of it, J.S.'s perception of defendant, and the increasing gravity of defendant's threats that led to the commission of the offense. Defense counsel objected, arguing that there were no gang charges and the evidence was prejudicial with no probative value.
The trial court allowed evidence regarding defendant's gang affiliation and the fact that he was subject to search and seizure. The court relied on Evidence Code section 1101, subdivision (b), concluding that the evidence was relevant to prove motive and intent.
At trial, J.S. admitted that he had associated with various Crip gang members in the past, including the Country Boy Crips, although he did not initially tell police. Defendant told J.S. that he was affiliated with the Hoover gang. J.S. felt threatened by and feared defendant because of the people he affiliated with. Defendant's parole officer testified that he was subject to search and seizure at any time for a period of six months predating July 23, 2020. J.S. held defendant's firearm because defendant did not want to get caught with it.
Defendant stipulated that he had a prior felony conviction. The court also instructed the jury with a limited version of CALCRIM No. 1403:
"You may consider evidence of gang activity only for the limited purpose of deciding whether: [¶] The defendant had a motive to commit the crimes charged. [¶] You may also consider this evidence when you evaluate the credibility or believability of a witness. [¶] You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime."
B. Analysis
"California courts have long recognized the potential prejudicial effect of gang evidence." (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167 (Samaniego); accord, People v. Williams (1997) 16 Cal.4th 153, 193 (Williams).) Gang evidence may create a risk that the jury will infer that the defendant has a criminal disposition and is therefore guilty of the charged offense, "trial courts should carefully scrutinize such evidence before admitting it." (Williams, supra, at p. 193.) "Nonetheless, evidence related to gang membership is not insulated from the general rule that all relevant evidence is admissible if it is relevant to a material issue in the case other than character, is not more prejudicial than probative, and is not cumulative." (Samaniego, supra, at p. 1167, citing People v. Avitia (2005) 127 Cal.App.4th 185, 192; see Evid. Code, §§ 1101, subds. (b) &(c), 352, 350.)
"Evidence of the defendant's gang affiliation-including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like-can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime." (People v. Hernandez (2004) 33 Cal.4th 1040, 1049 (Hernandez).) Our Supreme Court held that gang evidence is relevant to permit the jury to understand the defendant's statements and threats, to show intent and motive to commit the crime, and to explain how the defendant induced fear in the victim, all of which are factors relevant to the defendant's guilt. (Id. at p. 1053.) "'"[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence."'" (Samaniego, supra, 172 Cal.App.4th at p. 1168, quoting People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.)
In determining the admissibility of evidence, the trial court has broad discretion. (Williams, supra, 16 Cal.4th at p. 196.) An appellate court reviews for abuse of discretion a trial court's rulings on relevance, the admission or exclusion of gang evidence, and evidence under Evidence Code sections 1101 and 352. (People v. Battle (2021) 11 Cal.5th 749, 799; People v. Carter (2003) 30 Cal.4th 1166, 1194.) Our Supreme Court held, "''[w]e will not disturb a trial court's exercise of discretion under Evidence Code section 352 '"except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice."'" (People v. Jones (1998) 17 Cal.4th 279, 304.)
We find no abuse of discretion. The gang evidence here helped show the nature of the dispute and threats that gave rise to the crime. The gang loyalties explained the increasing severity of defendant's threats, which was relevant to motive and the use of fear. (See Hernandez, supra, 33 Cal.4th at pp. 1051-1053.) It established J.S.'s credibility, due to the initial disparities between J.S.'s trial testimony and his prior statements. (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1450 [gang evidence was admissible where it had significant probative value on the issue of witness's credibility].) Specifically, it explained why J.S. did not initially provide the police with a complete statement regarding his involvement with defendant and his gang affiliation.
Defendant unpersuasively relies upon People v. Albarran (2007) 149 Cal.App.4th 214 at page 225, for the proposition that the admission of the gang evidence may be understood by a jury as evidence of a defendant's bad character, and circumstantial proof that he committed the crime. In that case, the court held that the introduction of gang evidence was inflammatory, unduly prejudicial, constituted "'bad character'" evidence, and was not relevant as to motive and intent. (Id. at pp. 217, 225.) Defendant's argument does not fare well. Unlike the extremely inflammatory gang evidence in the Albarran case, the gang evidence in this case was concise. After J.S. identified both of their gang affiliations, he said that the shooting was not for the benefit of the gang. The shooting involved a personal dispute over the loss of defendant's firearm. The testimony contained no elaboration on the level of defendant's affiliation and no embellishment as to his prior gang activities, other than he was affiliated with that group. The jury was provided a limiting instruction regarding the use of the gang-related evidence, and it was presumed to have followed the court's instructions. (Carroll v. Commission on Teacher Credentialing (2020) 56 Cal.App.5th 365, 382-383 [a jury is presumed to follow the court's instructions absent some contrary indication in the record].)
We now turn to the evidence that defendant was subject to warrantless search and seizure. Like the gang evidence, it established the reason why defendant asked J.S. to hold his firearm. It supported J.S.'s credibility. This evidence, combined with J.S.'s loss of defendant's firearm and J.S.'s refusal to pay defendant back appeared to be a key motive for the shooting in this case. Confusion and speculation on behalf of the jury regarding the reason why J.S. had defendant's firearm may have occurred without the evidence. Moreover, defendant stipulated to having suffered a prior felony conviction. Admitting that he was subject to a warrantless search was unlikely to have provided the jury with additional prejudicial information. The jury already knew that defendant was a convicted felon, which was a provable issue in the case. It was reasonable for the jury to have inferred that a convicted felon would be subject to a warrantless search.
We find no error. However, even assuming error, it was harmless. In determining whether erroneous admission of evidence was harmless, we apply the harmless error standard described in People v. Watson (1956) 46 Cal.2d 818, 836, which requires reversal only if the defense shows that it is reasonably probable that a more favorable result would have been reached for the appealing party absent the error (People v. Partida (2005) 37 Cal.4th 428, 439). Defendant fails to make this showing. The factsoverwhelmingly established defendant's guilt. (See People v. Doolin (2009) 45 Cal.4th 390, 439 ["even if we were to assume evidentiary error, any error would be harmless" as "[t]here was overwhelming evidence of [the] defendant's guilt"].) There is no reasonable probability defendant would have received a more favorable result absent the challenged evidence; any error was harmless.
These facts include: (1) The firearm found in the refrigerator in the apartment where defendant was located just prior to the police apprehending him was the same firearm used in the shooting here; (2) when the firearm was initially found in the refrigerator by the police shortly after defendant was apprehended, it was warm to the touch; (3) the video on defendant's cell phone appeared to depict the same firearm that was recovered from the refrigerator in the apartment that defendant was apprehended from; (4) J.S. held defendant's firearm for him, but then it was stolen from J.S.; (5) defendant wanted J.S. to pay him $750 for the stolen firearm; (6) J.S. did not repay defendant the full amount; (7) defendant threatened J.S. that, if J.S. did not pay the full amount for the lost firearm, there were going to be "problems"; (8) defendant's jail calls to his girlfriend implicated defendant in the shooting; and (9) defendant's cell phone received a text message from someone stating: "'Hey, Bruh, put the [s**t] under the fridge.'"
II. Section 1170, Subdivision (b), and Senate Bill 567
Defendant argues that we must vacate the sentence and remand the matter because he did not admit, and the jury did not find true, the facts underlying the circumstances in aggravation that the trial court relied upon in imposing the upper term for count 1 as required by section 1170, subdivision (b), as modified by Senate Bill 567. The People argue that defendant forfeited any error, the aggravating circumstances were properly established, and, in the alternative, any error in imposition of the upper term is harmless. We find that the court's sentence here is not unauthorized and defendant's claim is forfeited.
A. Additional Background
At a preliminary hearing, the prosecutor submitted defendant's prior certified record of convictions in the form of a certified California Law Enforcement Telecommunications System (CLETS) report. The certified report sets forth several juvenile adjudications and three prior felony convictions.
At the sentencing hearing, the trial court considered defendant's prior certified record of felony convictions and juvenile adjudications. The court reasoned:
"I am imposing for Count 1 the aggravated determinate term of 7 years, and I'm considering all the aggravating factors that came out during the trial. However, I'm going to rely on his prior record as the independent ... reason for imposing the aggravated term, irrespective of those other aggravating circumstances."
The trial court imposed the upper term on count 1. The record shows that the trial court relied upon a certified record of prior convictions, irrespective of all other aggravating circumstances, reflecting three of defendant's prior felony convictions as follows: (1) in 2015, assault with force likely to produce GBI in violation of section 245, subdivision (a)(4); (2) in 2018, sending harmful sexual matter to a minor in violation of section 288.2, subdivision (a)(2); and (3) in 2018, for pandering a minor in violation of section 266i, subdivision (b)(1).
It also contained several juvenile adjudications: in 2009, resisting arrest of a peace officer in violation of section 148, subdivision (a)(1), and possession of a firearm on a public school campus in violation of section 626.9; in 2010, three failures to obey the juvenile court and battery in violation of section 242; in 2011, indecent exposure in violation of section 314(1), failure to obey the juvenile court, and receiving stolen property in violation of section 496, subdivision (a); in 2012, failure to obey the juvenile court; and in 2013, failure to obey the juvenile court and assault with force likely to produce GBI in violation of section 245, subdivision (a)(4).
B. Forfeiture
Defendant did not object to the imposition of the aggravated term on count 1. After the trial court sentenced defendant, defense counsel stated that he did not feel that a brief in opposition would be in good faith because his hands were tied regarding the imposition of the sentence. Defendant now argues that his claim is not forfeited because the sentence is unauthorized. The People disagree, as do we.
The "'unauthorized sentence'" concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal. (People v. Scott (1994) 9 Cal.4th 331, 354 (Scott).) A sentence is generally "'unauthorized'" where it could not lawfully be imposed under any circumstance in the case. (Ibid.; see People v. Welch (1993) 5 Cal.4th 228, 235.) Appellate courts are willing to intervene for an unauthorized sentence because such error is "'clear and correctable'" independent of any factual issues presented by the record at sentencing. (Scott, supra, at p. 354.) Legal error resulting in an unauthorized sentence commonly occurs where the court violates mandatory provisions governing the length of confinement; for example, an "'unlawful sentence'" includes any sentence "'not authorized by law,'" but excludes the court's "'choice'" of the lower, upper, or middle term or consecutive terms of imprisonment. (Ibid.)
Effective January 1, 2022, Senate Bill 567 amended section 1170. Under the newly amended law, an upper term may be imposed if based on aggravating circumstances admitted by the defendant, found true beyond a reasonable doubt by the trier of fact, or based on a certified record of a prior conviction without submitting the prior convictions to a jury. (§ 1170, subd. (b)(1), (2), (3).) Thus, the upper term is not a sentence that "could not lawfully be imposed under any circumstance in the particular case." (Scott, supra, 9 Cal.4th at p. 354; see People v. Achane (2023) 92 Cal.App.5th 1037, 1043-1044 (Achane) [upper term sentence under § 1170, subd. (b)(2), was not a sentence that could not lawfully be imposed under any circumstance, an upper term may be imposed if based on an aggravating circumstance admitted by the defendant, found true beyond a reasonable doubt by the trier of fact or based on a certified record of a prior conviction, and, therefore the unauthorized sentence exception did not apply to prevent forfeiture].) Defendant's criminal history in the form of a certified CLETS report, including three prior felony convictions and multiple juvenile adjudications, was presented to the trial court at defendant's preliminary hearing. (§ 1170, subd. (b)(3).) The court relied upon the three prior felony convictions identified in the certified record of convictions as an independent basis for imposing the upper term. Three or more prior convictions are numerous in this context (People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [three prior convictions are numerous]; see Cal. Rules of Court, rule 4.421(b)(2)) and a single aggravating factor is sufficient to permit a court to impose the upper term. (People v. Black (2007) 41 Cal.4th 799, 815; People v. Falcon (2023) 92 Cal.App.5th 911, 934, fn. 5, review granted Sept. 13, 2023, S281242.) There was no objection by defendant at the time of sentencing. Defendant cannot avoid the consequences of his failure to object by relying on the unauthorized sentence exception to the forfeiture doctrine. (Achane, supra, at p. 1044.) Defendant's claim is forfeited.
III. Section 1170, Subdivision (b)(6)(B), and Assembly Bill 124
Defendant argues that the matter must be remanded for resentencing under section 1170, subdivision (b)(6)(B), as amended by Assembly Bill 124, which makes the lower term sentence presumptively appropriate under specified circumstances. (People v. Gerson (2022) 80 Cal.App.5th 1067, 1074.) Defendant argues that he is entitled to be resentenced pursuant to section 1170, subdivision (b)(6)(B), because he was 23 years old at the time of the offense. (§ 1016.7, subd. (b) [a "'youth'" for purposes of § 1170 includes any person under 26 years of age on the date the offense was committed].) Further, defendant asserts that his claim is not forfeited since he argues that the court misunderstood its statutory obligation when it failed to expressly address defendant's youth or section 1170, subdivision (b)(6)(B), at the time of sentencing. The People argue that defendant's claim is forfeited. In the alternative, the People argue that defendant failed to make an initial showing that his youth was a "contributing factor" in his commission of the offense, following the court in People v. Fredrickson (2023) 90 Cal.App.5th 984, 991 (Fredrickson). Defendant disagrees with the Fredrickson court on this point. We agree with the People in both respects.
A. Forfeiture
Defendant challenges the trial court's failure to expressly consider defendant's youth and section 1170, subdivision (b)(6)(B), for the first time on appeal. The First District Court of Appeal, Division Two, recently held that by failing to raise the issue in the trial court, the defendant forfeited his appellate claim that he was entitled to have the court consider applying the presumption in favor of a lower term sentence under section 1170, subdivision (b)(6). (Achane, supra, 92 Cal.App.5th at pp. 1044-1047.) In Achane, the defendant argued on appeal that the record showed he suffered trauma, triggering the presumption in favor of a lower term sentence. (§ 1170, subd. (b)(6)(A).) (Achane, supra, at p. 1042.) The court reasoned that section 1170, subdivision (b)(6), applies if one of the enumerated circumstances "'was a contributing factor in the commission of the offense'" and the court does not find aggravating factors outweigh "'the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice.'" (Achane, supra, at p. 1044.) A trial court's decision whether to apply this provision depends on both factual determinations and the exercise of discretion. (Ibid.) Thus, a sentence imposed without consideration of section 1170, subdivision (b)(6), is not one that "'could not lawfully be imposed under any circumstance in the particular case.'" (Achane, supra, at p. 1044, quoting Scott, supra, 9 Cal.4th at p. 354.) The Achane court held that the defendant's claim was forfeited for failure to object or raise the issue that the ameliorative benefits of section 1170 should apply at the time of sentencing, when section 1170 amendments went into effect nearly a year before the defendant was sentenced. (Achane, supra, at p. 1047.)
Providing a different analysis on the issue of forfeiture, the Fredrickson court held that a defendant does not forfeit his claim for failure to object or raise the issue that section 1170, subdivision (b)(6)(B), should apply where the defendant challenges the court's "'misapprehension'" of its statutory sentencing obligations, or failure to expressly consider the defendant's youth and the lower term presumption at the time of sentencing. (Fredrickson, supra, 90 Cal.App.5th at p. 994, fn. 8; see People v. Panozo (2021) 59 Cal.App.5th 825, 840 (Panozo) [no forfeiture where the defendant "does not challenge the manner in which the trial court exercised its sentencing discretion but rather its apparent misapprehension of statutory sentencing obligations"].)
Here, defendant argues that the court "misapprehen[ded]" its statutory sentencing obligation since the court failed to discuss defendant's youth or section 1170, subdivision (b)(6)(B) at the time of sentencing. Following the Fredrickson court's line of reasoning on this point only, defendant argues that he did not forfeit his claim.
We are not convinced that a misapprehension of a trial court's statutory sentencing obligation occurs when the court does not expressly consider a defendant's youth, or state that it has taken section 1170, subdivision (b)(6)(B), into account at the time of sentencing. We believe that the reasoning in Achane is more persuasive, where the court held that the consideration of whether to impose a sentence pursuant to section 1170, subdivision (b)(6)(B), is an exercise of discretion and follows that the sentence is not one that "'could not lawfully be imposed under any circumstance in the case.'" (Achane, supra, 92 Cal.App.5th at p. 1044.) Cases have held that the misapprehension of statutory sentencing obligations may arise when a "prima facie" showing of eligibility under a statute is made, but the record fails to show the court is aware of or considered its statutory obligations to sentence under that statute. (See People v. Bruhn (1989) 210 Cal.App.3d 1195, 1199-1200 (Bruhn); People v Leon (2016) 243 Cal.App.4th 1003, 1026 [relief from a court's misunderstanding of its sentencing discretion is available on appeal when such misapprehension is affirmatively demonstrated by the record].)
This is not the case here. There is nothing in the record to reflect that the trial court was not aware of, or did not understand, its statutory obligation at the time of sentencing. An initial showing was never made. Defendant relies on a silent record. The amendment to section 1170, subdivision (b)(6)(B), became effective before defendant was sentenced. Defendant's date of birth was noted in the probation report, which the court adopted at the time of sentencing. The court was aware of defendant's age at the time of the commission of the offense. We must presume, in the absence of an indication to the contrary, that the court considered defendant's youth under section 1170, subdivision (b)(6)(B), but since no facts were offered by any party showing that defendant's youth was a contributing factor in the commission of the offense, the court concluded its discretion was not constrained. (See People v. Weddington (2016) 246 Cal.App.4th 468, 492 [it is well established that a trial court is presumed to be aware of, and follow, the law in exercising its sentencing discretion].)
While defendant's contentions about the trial court's failure to address defendant's youth or section 1170, subdivision (b)(6)(B), have arguably been forfeited, we will nevertheless address the merits of this issue to forestall any later claim of ineffective assistance of counsel. (See People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6; People v. Crittenden (1994) 9 Cal.4th 83, 146.)
B. Merits
The amendment to section 1170, subdivision (b)(6)(B), enacted by Assembly Bill 124 makes the lower term sentence the presumptive maximum term of imprisonment if a defendant's "youth" was a "contributing factor" in his commission of the offense. (§ 1170, subd. (b)(6)(B).)
Section 1170, subdivision (b)(6)(B), "does not mandate a presumption in favor of the lower term in every case in which the defendant was under age 26 at the time the crime was committed." (Fredrickson, supra, 90 Cal.App.5th at p. 991.) To trigger the statutory presumption that the lower term sentence should be imposed because the defendant's youth was a contributing factor in commission of the crime, there must be some initial showing that the defendant's youth was a "contributing factor." (Id. at p. 992.) Such a showing requires some facts or evidence that the defendant's youth is "a contributing factor" in his or her commission of the offense, it is not enough to only show that defendant was under 26 years old at the time of the underlying offense. (Ibid.) While it may seem reasonable to presume a defendant's youth is a contributing factor whenever a youth commits a crime, the Legislature opted to require a finding of causation as to all the circumstances in section 1170, subdivision (b)(6), and "we have no authority to rewrite the statute." (Fredrickson, supra, at p. 993, fn. 7.) The initial showing need not be made by the defendant; the showing could be made by the prosecution, or by facts or recommendations in the probation officer's report. (Id. at p. 994, fn. 8.) Also, the defendant need not specifically request application of the lower term presumption, as long as the record demonstrates that the defendant's youth contributed to the commission of the underlying offense. (Ibid.)
The Fredrickson court looked to the language in Bruhn when attempting to clarify what initial showing would be sufficient to obligate a trial court to make an express finding regarding the section 1170, subdivision (b)(6)(B), lower term presumption, noting the Bruhn court determined that facts and evidence presented sufficed as an "'initial showing,'" a "'prima facie showing,'" and a "'preliminary showing.'" (Fredrickson, supra, 90 Cal.App.5th at p. 993.) The Bruhn court observed that, "In order to trigger the provisions of [former] section 1170.9, the defendant must make an initial showing that he served in combat while a member of the United States Armed Forces and that he suffers from substance abuse or other psychological problems resulting from that service." (Bruhn, supra, 210 Cal.App.3d at p. 1199.) The record indeed established that the defendant had served combat duty in Vietnam, where he used heroin and other drugs, was having difficulty functioning in society since his return to the United States, at the time of the offense was homeless, perpetrated the offense to secure the necessities of life, and there was evidence that the defendant suffered from posttraumatic stress disorder. (Id. at p. 1200.) Despite this preliminary showing, the court summarily sentenced the defendant, without indicating that federal commitment for treatment for substance abuse or psychological problems resulting from combat service under former section 1170.9 had been considered, which required remand since an initial showing was made, and the court failed to exercise discretion. (Bruhn, supra, at pp. 1200-1201.)
Similarly, in Panozo, there was a sufficient initial showing of the mitigating factor of the defendant's service-related diagnosis of posttraumatic stress disorder, alcohol abuse, and other mental health issues arising out of his service as a United States Marine in Iraq, under section 1170.91. (Panozo, supra, 59 Cal.App.5th at p. 837.) Defense counsel argued at sentencing that his client's crimes were the byproduct of his military service and the defendant provided "documentation to support his diagnosis and request for treatment." (Id. at pp. 837-838.) Since the trial court failed to consider the initial showing of mitigating factors when it denied probation or imposition of the lower term, remand was required. (Id. at p. 839.)
The Fredrickson court distinguished its case from Bruhn and Panozo, and considered the initial showings in both cases when it concluded that the trial court's failure to consider the lower term presumption did not require a remand because no "initial showing" by way of facts or evidence was made to demonstrate that the defendant's youth was a "contributing factor" in his commission of the crime. (Fredrickson, supra, 90 Cal.App.5th at p. 994.)
In the record before us, there are no facts or evidence to suggest that defendant's youth was a contributing factor in the commission of the offense. There was no initial showing. Defendant concedes this point. However, defendant argues that it is difficult to prove that his youth was a "'contributing factor.'" For the first time, he urges us to consider the functionality of a prefrontal cortex on a person under the age of 25, and argues that an initial showing need only be that he was under the age of 26 years at the time of commission of the offense. This exact argument was considered and rejected by the Fredrickson court. (See Fredrickson, supra, 90 Cal.App.5th at p. 993, fn. 7.) Merely because a defendant is under 26 years old at the time of the underlying offense disregards the plain statutory language requiring a finding of causation that makes youth a ground for the lower term presumption only if it was a "contributing factor" in the commission of the offense. (Id. at p. 992.)
At the sentencing hearing, the trial court gave both counsel and defendant an opportunity to address the court regarding sentencing, but neither counsel nor defendant argued for a lesser sentence, mentioned section 1170, subdivision (b)(6)(B), or argued that defendant's youth contributed to the offense. Moreover, nothing in the probation report or the facts of the prosecution's case demonstrates that defendant's youth was a contributing factor in the commission of the offense.
Defendant failed to make a sufficient preliminary showing that his youth was a contributing factor in the commission of the offense. We do not find that the trial court abused its discretion in imposing the middle term, without evidence that defendant's youth was a contributing factor in his commission of the crime.
IV. Abstract of Judgment
The parties agree, as do we, that the abstract of judgment reflecting the oral pronouncement of judgment contains a clerical error regarding defendant's sentence that should be corrected.
Where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls. (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) We may correct a clerical error in recording the judgment at any time. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
The abstract of judgment does not reflect the oral pronouncement of judgment.
On the abstract of judgment, box number 8, and a box next to box number 8, are checked. Together, box number 8 and the box next to it indicate that defendant was sentenced pursuant to the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). He was not. The abstract of judgment must be corrected to reflect the oral pronouncement of judgment rendered on April 21, 2022.
DISPOSITION
The judgment is affirmed. The trial court is directed to issue an amended abstract of judgment that correctly reflects the oral pronouncement of judgment.
WE CONCUR: POOCHIGIAN, Acting P. J., DETJEN, J.