Opinion
A165064
05-18-2023
THE PEOPLE, Plaintiff and Respondent, v. JOHNATHAN LAKEITH CARTER, Defendant and Appellant.
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. 21CR00036, 21CR00340
Langhorne, J. [*]
Penal Code section 1170(b)(6) does not mandate a lower term in every case where psychological trauma contributed to the crime or require that aggravated circumstances be stipulated or found true beyond a reasonable doubt for the court to impose a midterm sentence.
Except where otherwise indicated, statutory references hereafter are to the Penal Code.
Johnathan Lakeith Carter appeals from a judgment of conviction and sentence imposed after he pleaded guilty to resisting arrest and no contest to assault with a deadly weapon. He contends the court erred in imposing midterm sentences on those convictions because, in his view, his history of mental illness evinces trauma that compels the lower term under Senate Bill No. 567 (2021-2022 Reg. Sess.) (SB 567). (See Pen. Code, § 1170, subd. (b).)
We will affirm the judgment. In applying SB 567, a trial court imposes the lower term if the defendant's "psychological . . . trauma" was a "contributing factor in the commission of the offense" "unless the court finds that the aggravating circumstances outweigh the mitigating circumstances [such] that imposition of the lower term would be contrary to the interests of justice." (§ 1170, subd. (b)(6). Italics added.) Here, the court found that, despite evidence of mental illness, the middle term was justified due to the aggravating circumstances of Carter's five prior crimes of violence, absconding from treatment, and being on domestic violence probation at the time he perpetrated his charged crimes. We find no abuse of discretion.
I. FACTS AND PROCEDURAL HISTORY
Carter's sentence arose from his convictions in two cases.
A. Case No. CR00036
In February 2021, Carter was charged with three counts of resisting an officer by force or threat (§ 69, subd. (a)) and one count of being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)).
In March 2021, Carter pleaded guilty to one count of resisting an officer, with an agreed-upon sentence of two years formal probation. Defense counsel recited the factual basis for Carter's plea: "On February 13th of this year in the County of Mendocino, Officer Stout of the Ukiah Police Department while in full uniform in a marked patrol vehicle contacted the defendant as he was walking in and out of traffic. As a result of attempting to detain him for his own safety, the defendant resisted him and the officer fell to the ground. Other officers were also involved, including FTO Perez, Officer Infante, and CSO Breeze." The prosecution agreed to dismiss the remaining charges, subject to a Harvey waiver. (People v. Harvey (1979) 25 Cal.3d 754 [dismissed charges can be considered in sentencing].)
Carter was released from custody upon his promise to report to probation and return to court for sentencing. The court explained that, under the terms of a "Cruz waiver," if he failed to report to probation or return for sentencing, the agreement of no state prison would be "off the table" and the court could sentence him to up to three years in prison. Carter confirmed that he understood. (See People v. Cruz (1988) 44 Cal.3d 1247 (Cruz) [out-ofcustody defendant who fails to appear for sentencing waives right to plea agreement and may be sentenced to the maximum].)
B. Case No. CR00344
In June 2021, Carter was charged with assault with a deadly weapon (§ 245, subd. (a)(1)) and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). It was further alleged that, at the time he committed the assault, he was on release from custody in case number 21CR00036 (§ 12022.1).
In September 2021, the court found Carter incompetent to stand trial and committed him for treatment. After Carter was restored to competency, the court reinstated the criminal proceedings in January 2022.
On January 20, 2022, Carter pleaded no contest to assault with a deadly weapon, with the agreement that he would be sentenced to no more than 365 days in county jail. Defense counsel stipulated that the preliminary hearing transcript provided the factual basis for the plea. According to that transcript, Ukiah police responded to a report of an altercation outside a fast food restaurant on March 26, 2021, and learned from the victim that Carter struck him in the face, stabbed him in the hand with a knife, and threatened to return and kill him; police later arrested Carter and found a pipe, methamphetamine, and a knife with dried blood on his person.
As part of the plea agreement, Carter was again released on his promise to appear. (See Cruz, supra, 44 Cal.3d 1247.) The court confirmed with counsel and Carter that if Carter failed to appear in court, the plea agreement would be "off the table" and Carter could be sentenced in excess of those terms. Carter said he understood. The sentencing hearing was set for March 3, 2022.
C. Sentencing
Carter failed to appear at the sentencing hearing on March 3, 2022.
On April 19, 2022, Carter appeared and was sentenced. Pursuant to his Cruz waivers, the court imposed a sentence exceeding the terms of his plea bargains: the midterm sentence of three years on case number CR00344 and a consecutive midterm sentence of eight months on case number CR00036, for a total term of three years eight months in state prison. This appeal followed.
III. DISCUSSION
Carter contends the court erred in imposing midterm sentences because it failed to consider his history of mental illness under SB 567. He is incorrect.
A. SB 567
Before SB 567, section 1170, subdivision (b) gave the trial court broad discretion to select between the lower, middle, or upper terms of sentence, weighing the circumstances in aggravation or mitigation (as defined by Cal. Rules of Court 4.421 and 4.423) "and any other factor reasonably related to the sentencing decision." (§ 1170, former subd. (b); Cal. Rules of Court, rules 4.420(b), (e) &(d); People v. Sandoval (2007) 41 Cal.4th 825, 846-847.)
SB 567 amended section 1170 effective January 1, 2022. (See Stats. 2021, ch. 731, § 1.3, adding § 1170, subds. (b)(1), (2) &(6).) Under the amended law, the court may impose the upper term only if justified by aggravating circumstances and if the facts underlying those circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt. (§ 1170, subd. (b)(2); see Cal. Rules of Court, rule 4.420(a)-(c).) The court must impose the lower term when specified issues are a "contributing factor" to the offense-including, as relevant here, that "[t]he person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence"-unless the court finds that "the aggravating circumstances outweigh the mitigating circumstances [and] that imposition of the lower term would be contrary to the interests of justice." (§ 1170, subd. (b)(6)(A).)
Because Carter was sentenced in April 2022, the amended law applied. We review a court's sentencing choices for an abuse of discretion. (People v. Panozo (2021) 59 Cal.App.5th 825, 837; see People v. Sandoval, supra, 41 Cal.4th at p. 847.)
B. Relevant Proceedings in the Trial Court
The probation report advised that Carter suffered from mental health issues. At the sentencing hearing, defense counsel argued that Carter's mental health history and lack of guidance as a youth justified a grant of probation. He claimed that Carter was suspicious and resistant to authorities, which made him "psychologically vulnerable to" resisting an officer. Counsel further claimed that Carter's representation of having a good and privileged childhood and a good relationship with his parents was "denial," noting that Carter had "more than 17 siblings" so his mother had a lot to do. The court observed there was no independent evidence Carter truly had 17 siblings and opined that Carter was, "putting it nicely, not a very good historian when he chooses to provide information."
The court found that Carter was presumptively ineligible for probation, noting (without objection) that he had been sentenced to prison on three cases in Tennessee, violated his probation in Tennessee, and committed new crimes when he moved to California. The court also observed that "under the old scheme this clearly would be an aggravated sentence given the number of crimes of violence and the number of cases," and "[t]here hasn't been much time since he was released from the military where he wasn't either in custody or on probation or on parole."
The court then considered Carter's history of mental illness, ultimately concluding under the circumstances to impose the midterm. The court explained: "I think that the midterm in Case 344 is the appropriate sentence for assaulting a person with a knife, with the amount of prior crimes of violence, five crimes of violence, and the fact that he was on domestic violence probation at the time of the offense. [¶] I recognize that Mr. Carter may have mental health issues or drug addiction issues, but one of the things that he was supposed to be doing in Tennessee when he left, when he absconded from probation, was he was supposed to be in a treatment program. He left from a treatment program in January of 2019, or-I'm sorry, it was January 19th of 2021, and shortly after that he's here committing two crimes of violence, one against local law enforcement and one against this stranger in which he used a knife and caused physical injury with that knife and actually cut the person. [¶] . . . [¶] I'm going to sentence Mr. Carter to the midterm of three years. In Case 0036, I'll impose an eight-month consecutive sentence. The Court cannot find unusual circumstances to justify the granting of probation in this case. Mr. Carter's remanded to the custody of the sheriff for a 3-year, 8-month aggregate sentence."
C. Analysis
Carter contends the court erred in imposing midterm sentences because he had a documented history of mental health issues and the reasons the court gave for imposing a middle term were not stipulated or proven beyond a reasonable doubt.
As a threshold matter, we question whether Carter's situation falls within the scope of SB 567. By its terms, section 1170, subdivision (b)(6)(A) applies only when "psychological, physical or childhood trauma" was "a contributing factor in the commission of the offense." (People v. Banner (2022) 77 Cal.App.5th 226, 241 [psychological trauma arising from mental illness, but not mental illness alone, may qualify a defendant for the lower term under § 1170, subd. (b)(6)].) Defense counsel at the hearing referenced mental illness generally, speculating that Carter's delusions and suspicions made him vulnerable to resisting a police officer, but did not pinpoint any "trauma" that contributed to Carter's crimes. While representing that Carter grew up with 17 siblings, he did not show that having a lot of siblings led to Carter stabbing a stranger outside a restaurant years later.
In any event, section 1170, subdivision (b)(6) does not mandate a lower term in every case where psychological trauma contributed to the crime. (People v. Flores (2022) 73 Cal.App.5th 1032, 1039 [amendments to § 1170, subd. (b)(6) "[do] not require imposition of the lower term in every case"].) To the contrary, the Legislature explicitly authorized the court to impose greater punishment than the lower term when the aggravating circumstances outweigh the mitigating circumstances and the "imposition of the lower term would be contrary to the interests of justice." (§ 1170, subd. (b)(6).) That is what the court did here, concluding that the circumstances justified the middle rather than lower term despite the evidence of mental illness.
Carter argues that the low term is the presumptive term for a defendant with mental illness, so the midterm is an aggravated term that cannot be imposed unless there are aggravating factors and those factors are found true beyond a reasonable doubt by a jury or stipulated by the defendant. Carter cites no authority for this proposition, and the statutory language provides otherwise.
Section 1170, subdivision (b)(2) states that aggravating circumstances must be stipulated or found true beyond a reasonable doubt for the court to impose "a sentence exceeding the middle term." (Italics added. See Cal. Rules of Court, rule 4.420(b).) Here, however, the court did not impose a sentence exceeding the middle term. Moreover, while section 1170, subdivision (b)(6) provides for a low term where psychological trauma contributed to the crime unless "the court finds that the aggravating circumstances outweigh the mitigating circumstances," it conspicuously omits any requirement that the facts underlying those aggravating circumstances be stipulated or found true beyond a reasonable doubt. (See Cal. Rules of Court, rule 4.420(e); see also Cal. Rules of Court, rule 4.420(d) [in selecting between the middle and lower terms, court may consider factors in aggravation and mitigation "whether or not the factors have been stipulated to by the defendant or found true beyond a reasonable doubt at trial by a jury or the judge in a court trial"].)
Carter fails to establish error.
III. DISPOSITION
The judgment is affirmed.
We concur: Jackson, P.J., Burns, J.
[*] Judge of the Superior Court of Napa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.