Opinion
A164896
10-27-2022
THE PEOPLE, Plaintiff and Respondent, v. ANDREW WAYNE STEPHENSON, Defendant and Appellant.
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CR954391.
Stewart, J.
Defendant and appellant, Andrew Wayne Stephenson, was convicted of first degree burglary, a felony, and violation of a domestic violence protective order, a misdemeanor, after he broke into the home of the wife from whom he was separated. He was sentenced to the middle term of four years in prison on the burglary count.
Stephenson does not challenge his convictions but makes one claim of sentencing error on appeal, which is that the trial court failed to consider the newly enacted statutory directive that the low term shall be imposed if the court does not find that the aggravating circumstances outweigh the mitigating circumstances, does not find that imposition of the lower term would be contrary to the interests of justice, and finds the defendant experienced psychological, physical, or childhood trauma that was a contributing factor in the commission of the offense. (Pen. Code, § 1170, subd. (b)(6)(A).) We conclude there was no error and affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
Stephenson and N.S. married in 2010. During the marriage, N.S. had two daughters, born in June 2016 and May 2018. In October 2018, the couple separated, Stephenson moved out of their home, and N.S. sought and obtained a restraining order against him. The order required him to stay 100 yards away from N.S. and the family home. She and the children continued to live in the home.
Appearing for the People at trial, N.S. testified that on May 31, 2019, she arrived home from work to find an exterior door to the home had been kicked in. The door facing and the section of the door with the doorknob were gone and she could no longer lock the door. She nailed the door shut to secure it but continued to have concerns about the safety and security of the home.
On June 4, 2019, while N.S. was at work, there was another break-in. After hearing about it from a deputy sheriff who called her that morning and told her what had happened, she was informed that Stephenson was in custody. She left work early that day to come home and get "go-bags" for herself and the children while the children were still in daycare. The same side door had been kicked in again. Missing from the house were a watch belonging to one of her daughters, a card containing a coupon for movie tickets that had been a gift from a client, confidential documents for clients of her accounting business, and documents containing her own personal information. Also missing were the hard drive from the surveillance system she had put in a few months before and the locking file cabinet in which she kept confidential client files.
N.S. had not given Stephenson permission to enter the house or to take any of the above items. She and her children spent that night and the week that followed with friends and at hotels, never staying at the same hotel twice. She did not return right away because she was concerned Stephenson might be released and did not want to risk the safety of her children.
A deputy sheriff who had been dispatched to N.S.'s home early the morning of June 4, 2019, also testified. He went to the home in response to a report that Stephenson was there in violation of the restraining order. When the deputy arrived, the garage door was open. The side door appeared to have been broken into for the second time, and Stephenson was inside a room at the back of the garage holding a sack of mail not addressed to him and had a watch in his pocket. Photos of the door from the inside and outside, and of the mail, the watch, and the coupon for movie theater tickets were admitted.
The defense did not call any witnesses.
The jury convicted Stephenson on the charges of first degree burglary and violation of the restraining order and hung on a third count for vandalism. At the sentencing hearing on January 18, 2022, the trial court sentenced Stephenson to four years, the middle term, on the burglary charge. On the misdemeanor charge for violating the domestic violence restraining order, it sentenced him to 60 days to be served concurrently. The court awarded 76 days of presentence credit.
The probation report recommended that the court find the case was an unusual case and order probation. The report cited the lack of a significant prior record, including any felony probation. The report also stated "[t]here is evidence the defendant participated in this crime because of great provocation, coercion or duress" and "[t]here is evidence the crime was committed because of a mental condition." Defense counsel argued for probation as well.
The court rejected the argument that probation was an appropriate sentence, observing, "there is, of course, a restriction on granting probation because this is a serious felony. The Court can only grant probation if the Court finds this is an unusual case in which the interests of justice would best be served by-served by a grant of probation. The Rules of Court in that area, 4.413, the circumstances of the limitation are not substantially less serious than typical cases involving the same limitation. The current offense is the cause of the limitation, not his prior record."
The court further stated, "I disagree with Probation's analysis on page six, line 14. There is no evidence the defendant participated in this crime because of great provocation, coercion, or duress or a mental condition. He is neither youthful nor aged.
"So following the Rules of Court, I do not find this to be an unusual case. Therefore, probation is denied. Even if there was no restriction on granting probation, I would deny it.
"The nature, seriousness, and circumstances of the crime are as serious as other instances of the same crime. The defendant inflicted emotional injury to the victim. The monetary loss to the victim was substantial. He was an active participant. The crime was not committed because of an unusual circumstance. So for those reasons, probation is denied."
DISCUSSION
Stephenson argues the trial court erred "by failing to consider the presumption of the low term that may apply based on appellant's mental condition." He points out that under section 1170, subdivision (b)(6), adopted by the Legislature in 2021 and effective January 1, 2022 (see Stats. 2021, ch. 695, § 5), "there is a presumption of the low term where a defendant's psychological, physical or childhood trauma is a contributing factor in the offense." He cites People v. Banner (2022) 77 Cal.App.5th 226, 240 (Banner) for the proposition that "mental illness constitutes psychological trauma under the new legislation." Stephenson argues the issue was not forfeited by defense counsel's failure to raise it during the sentencing hearing because the "statutory language setting forth a mandatory duty to consider the presumption of the low term takes precedence over the general forfeiture rule."
The People argue that Stephenson forfeited the claim "because defense counsel failed to alert the sentencing court to the amended statute and failed to request imposition of the mitigated base term based on alleged mental condition." The People further argue the record suggests defense counsel did not argue that Stephenson was entitled to the presumption because there is no substantial evidence that he had a mental condition. Finally, the People argue that Stephenson cannot establish a reasonable probability of a better result in the absence of counsel's inaction because the court would have rejected counsel's argument for a mitigated base term based on the lack of corroboration for any asserted mental condition.
Both parties cite People v. Scott (1994) 9 Cal.4th 331 in support of their respective positions on forfeiture. Our Supreme Court later summarized its holding in Scott this way: "In Scott, the court distinguished between unauthorized sentences-those that 'could not lawfully be imposed under any circumstances in the particular case' (Scott, at p. 354)-and discretionary sentencing choices-those 'which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner.' (Ibid.) As to the former, lack of objection does not foreclose review: 'We deemed appellate intervention appropriate in these cases because the errors presented "pure questions of law" [citation] and were" 'clear and correctable' independent of any factual issues presented by the record at sentencing." [Citation.] In other words, obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings are not waivable.' ([People v.] Smith [(2001) 24 Cal.4th 849,] 852.) With respect to the latter, however, the general forfeiture doctrine applies and failure to timely object forfeits review. Such '[r]outine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention.' (Scott, at p. 353; see also People v. Welch (1993) 5 Cal.4th 228, 232-237.)" (People v. Stowell (2003) 31 Cal.4th 1107, 1113.)
We do not agree with Stephenson that the exception to forfeiture identified in Scott applies here. This is not a situation in which the court could not lawfully impose the four-year term under any circumstances in this case. Nor does the error asserted present a pure question of law. It is not an error that is "correctable without referring to factual findings in the record or remanding for further findings." (Smith, supra, 24 Cal.4th at p. 852.) This is so because section 1170, subdivision (b)(6)(A), as relevant here, applies only if the trial court does not find "that the aggravating circumstances outweigh the mitigating circumstances [and] that imposition of the lower term would be contrary to the interests of justice" and if it does find that the defendant "has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence" and that such trauma "was a contributing factor in the commission of the offense." (§ 1170, subd. (b)(6)(A).) The failure to consider and apply a statute that could potentially mitigate a defendant's punishment is also "easily prevented and corrected if called to the court's attention." (Scott, supra, 9 Cal.4th at p. 353.)
The statute appears to be missing a connective word between the two clauses beginning with "that," for example, "or," "and" or "such." We read the language in the light most favorable to the defendant because it is ameliorative in purpose.
Stephenson argues that the statute is mandatory if the court does not make the first two findings and does make the second two findings, and we do not disagree. (See § 1170, subd. (b)(6) [unless court finds aggravating circumstances outweigh mitigating circumstances it "shall order imposition of the lower term" (italics added) if it finds defendant experienced trauma that was contributing factor in commission of offense].) However, while it is true that the statute imposes a mandatory duty on the trial court, this is not the kind of error that "presents a pure question of law with only one answer, [and] any such error is obvious and correctable without reference to any factual issues in the record or remanding for further findings." (Smith, supra, 24 Cal.4th at p. 853.)
As the court observed in Smith, "[a] timely objection to a sentencing error always reduces the likelihood of error and the unnecessary waste of judicial resources. We have, however, determined that certain errors are so obvious and so easily fixable that correction of these errors in the absence of an objection at sentencing will not unduly burden the courts or the parties." (Smith, supra, 24 Cal.4th at p. 854.) This is not such an error. Therefore, the Scott exception to forfeiture does not apply.
Stephenson next claims that "[i]f this Court deems that appellant forfeited this issue, the Court should find that trial counsel provided ineffective assistance." He contends that trial counsel "could not possibly have had a tactical reason for failing to invoke the presumption of the low term set forth in [Assembly Bill No.] 124 [2021-2022 Reg. Sess.], and given that the law was brand-new at the time of sentencing, it is not hard to imagine that trial counsel was either unaware of the new law or did not consider its application to the instant case." The People argue that "[o]utside of the probation officer's cryptic suggestion that appellant had an existing mental condition, the record does not corroborate such a fact" and that counsel likely did not argue for a mitigated base term because he "could not establish that [Stephenson] had a preexisting mental condition." Absent a factual record of the reasons for counsel's failure to raise the issue or an absence of any conceivable rationale for it, we do not entertain ineffective assistance of counsel claims on direct appeal. (People v. Sepulveda (2020) 47 Cal.App.5th 291, 301.)
Moreover, we reject the claim on an additional ground. We agree with the People that Stephenson "cannot demonstrate a reasonable probability of a better result in the absence of counsel's inaction" under Strickland v. Washington (1984) 466 U.S. 668, 697.) The question of prejudice turns on whether there is a reasonable probability that, but for counsel's failure to raise the issue of whether Stephenson was entitled to a lower term under section 1170, subdivision (b)(6), the result of the proceeding would have been different. (Strickland, at p. 694.) In other words, Stephenson must show a reasonable probability that the trial court would have concluded he must be sentenced to the lower, two-year term. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Ibid.)
During the sentencing proceeding, the trial court had occasion to consider certain factors relevant to the section 1170, subdivision (b)(6) inquiry in applying section 462 and rule 4.413 of the California Rules of Court, that have a significant bearing on whether there is a reasonable probability it would have sentenced Stephenson to a two-year term under section 1170, subdivision (b)(6).
Section 462 makes probation in first degree burglary cases presumptively inappropriate, "[e]xcept in unusual cases where the interests of justice would best be served if the person is granted probation." (§ 462, subd. (a).)
California Rules of Court, rule 4.413 describes the factors courts should consider in deciding whether to grant probation in cases where it is presumptively inappropriate. The factors addressed by the court in this case included: "[t]he factor or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence"; "[t]he defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence"; '[t]he crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation"; and "[t]he defendant is youthful or aged, and has no significant record of prior criminal offenses." (Cal. Rules of Court, rule 4:413(c)(1)(A), (c)(2)(A)-(C).)
Most significantly, the trial court disagreed with the probation report and found "[t]here is no evidence the defendant participated in this crime because of great provocation, coercion, or duress or a mental condition." As the People acknowledge, the court in Banner held that psychological trauma induced by mental illness may establish the trauma element of section 1170, subdivision (b)(6)(A). (Banner, supra, 77 Cal.App.5th at p. 241; but see id. at pp. 243-246 (conc. &dis. opn. of Detjen, J.].) The threshold for causation under section 1170, subdivision (b)(6), that the trauma "was a contributing factor in the commission of the offense," is lower than the threshold for causation used to assess eligibility for probation that "[t]he crime was committed because of a mental condition not amounting to a defense." (Italics added). (§ 1170, subd. (b)(6); Cal. Rules of Court, rule 4.413, subd. (c)(2)(B); see Banner, at p. 241 ["significant factor" under mental health diversion statute is "more onerous" than "contributing factor" under § 1170, subd. (b)(6)].) But unlike in Banner, the trial court here did not find the evidence of a mental condition contributing to the criminal acts was merely insufficient to support the requisite finding; it found there was "no evidence the defendant participated in this crime because of . . . a mental condition." (Italics added.) None.
In Banner, there were several hundred pages of mental health records, and the trial court indicated it believed he had" 'mental health issues'" but the record did not indicate his mental health was a significant factor in commission of the crime. (Banner, supra, 77 Cal.App.5th at pp. 233, 236.)
We have reviewed the probation report which, aside from a conclusory assertion that "[t]here is evidence the crime was committed because of a mental condition," provides no information at all to support a finding that Stephenson suffered from a mental condition, much less that it led to trauma or that such trauma was a contributing factor in his commission of the burglary. Nor does Stephenson point to any evidence of such facts in the trial record, and our review of the record reveals none. Stephenson's counsel had at least as much incentive to offer evidence of those factors, if such evidence existed, to support his argument that Stephenson should be put on probation as he had to support the argument in favor of a lesser term. Yet he did not, presumably because there was none. Essential elements on which Stephenson's claim to a reduced sentence depends are absent from the record and without them section 1170, subdivision (b)(6) would not apply even if the argument for a low term sentence had been made. For this reason, Stephenson cannot show prejudice.
Defense counsel's argument in favor of probation was predicated on other factors. He claimed the circumstances surrounding the case made it "particularly emotionally charged" and that Stephenson was "going into what had been the house that he owned." He also argued that it was Stephenson's "first felony offense" and that he would "benefit from a term of probation."
The court also found this was not a case in which the interests of justice would be served by granting probation. It found that "[t]he nature, seriousness and circumstances of the crime are as serious as other instances of the same crime," that the defendant inflicted emotional injury on N.S., and that his prior convictions as an adult were increasing in seriousness. It noted that his relatively minor prior criminal history was mitigating. The court strongly disagreed with the probation report's assertion that Stephenson "believed he had a claim of right to the property taken," stating that "was proven in the jury trial to be absolutely untrue." "He stole financial records from the victim's clients. He had no claim of right to any of that."
DISPOSITION
The judgment is affirmed.
WE CONCUR: Richman, Acting P.J., Miller, J.