Opinion
A169477
12-20-2024
THE PEOPLE, Plaintiff and Respondent, v. TROY JAHVOYCE ANDERSON, Defendant and Appellant.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. 051106889)
Banke, Acting P.J.
Defendant Troy Jahvoyce Anderson appeals following resentencing pursuant to Penal Code section 1172.75. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), asking this court to independently review the record to determine whether there are any arguable issues on appeal. Defendant filed a supplemental brief raising various issues. Finding no issues requiring further briefing, we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
Background
In 2013, a jury convicted defendant of one count of sexual acts with a child 10 years of age or younger (§ 288.7, subd. (b)), two counts of lewd and lascivious acts on a child under 14 years old (§ 288, subd. (a)), and one count of misdemeanor child molestation (§ 647.6, subd. (a)(1)). The trial court found defendant had suffered a prior strike (§§ 667, subds. (b)-(i), 1170.12), had previously been convicted of a serious felony (§ 667, subd. (a)(1)) and had suffered a prison prior (§ 667.5, subd. (b)). The trial court sentenced him to an aggregate term of 48 years to life, consisting of an indeterminate term of 15 years to life, doubled to 30 years to life due to the prior strike, a five-year term for the prior serious felony (§ 667, subd. (a)(1)), a one-year term for the prison prior (§ 667.5, subd. (b)), and a consecutive 12-year term for count 3. The court also imposed a concurrent 12-year term for count 2 and a one-year county jail term with credit for time served for count 4.
Defendant appealed contending, among other things, count 2 should have been stayed pursuant to section 654. (People v. Anderson (Mar. 2, 2016, A139800) [nonpub. opn.].) This court agreed, and the trial court subsequently filed an amended abstract of judgment staying the 12-year term on count 2, rather than running it concurrently. (People v. Anderson, supra, A139800.)
We take judicial notice of our prior opinion in case No. A139800. (Evid. Code, § 452.)
Change in the Law
When defendant was sentenced, former section 667.5, subdivision (b) required trial courts to impose a one-year enhancement for each prior prison term if the defendant had not remained free of custody for at least five years. (People v. Jennings (2019) 42 Cal.App.5th 664, 681 (Jennings).)
Effective January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) amended section 667.5, subdivision (b), by limiting the prior prison term enhancement to prior terms for sexually violent offenses under Welfare and Institutions Code section 6600, subdivision (b). (Stats. 2019, ch. 590, § 1; see Jennings, supra, 42 Cal.App.5th at p. 681.) The following year, the Legislature enacted Senate Bill No. 483 (2021-2022 Reg. Sess.), which made application of Senate Bill No. 136 retroactive to persons serving a term of incarceration for a repealed section 667.5, subdivision (b) enhancement. (Stats. 2021, ch. 728, § 1.) To that end, Senate Bill No. 482 (2021-2022 Reg. Sess.) added former section 1171.1, which was later renumbered section 1172.75. (Stats. 2021, ch. 728, § 3; Stats. 2022, ch. 58, § 12.)
Section 1172.75 provides that a sentence enhancement imposed for a prior prison term before 2020 pursuant to former section 667.5, subdivision (b) "is legally invalid"-unless imposed for a sexually violent offense. (§ 1172.75, subd. (a).) If a judgment includes such an enhancement, the trial court "shall recall the sentence and resentence the defendant." (§ 1172.75, subd. (c), italics added.) Section 1172.75 provides a resentencing procedure, which states, among other things: (1) the procedure "shall result in a lesser sentence than the one originally imposed" unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety (§ 1172.75, subd. (d)(1)); (2) the court "shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing" (id., subd. (d)(2)); and (3) the court "may consider postconviction factors . . . and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice" (id., subd. (d)(3)).
Defendant's Petition
In 2023, defendant moved for recall of sentence and for a full resentencing pursuant to section 1172.75. Defendant asserted the court was required to strike the now invalid one-year prison prior enhancement and thus he was entitled to a full resentencing hearing pursuant to section 1172.75 at which he asked the court to apply recently enacted ameliorative sentencing changes.
Pursuant to section 1385, defendant requested the court exercise its discretion to strike the five-year serious felony enhancement in light of the following" 'super mitigants' ": application of the enhancement would result in a discriminatory racial impact (§ 745, subd. (a)(4)), application of the enhancement could result in a sentence over 20 years, the current offense is connected to mental illness, and the current offense is connected to prior victimization or childhood trauma (§ 1385, subd. (c)(2)(A)-(I)). Additionally, defendant asked the court to exercise its discretion to dismiss and/or strike his prior strike, which the court relied on in committing defendant "to prison for a second-strike term," arguing the mitigating circumstances placed him "outside the spirit of the Three Strikes law." Finally, defendant noted section 654 no longer required imprisonment for the longest potential term, and accordingly the court had discretion to stay his indeterminate sentence on count 1 and impose his determinate sentence on count 2, which would result in a sentence of less than 20 years.
As relevant, a "super mitigant" is "a mitigating factor enumerated in Pen[al Code section] 1385(c)(2) that requires or weighs greatly in favor of the court dismissing or striking any additional punishment for conduct and status enhancements unless the court finds there is a likelihood that dismissal would result in physical injury or serious danger to others." (Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 2d ed. 2023) § 37.5.)
Defendant also attached "Mental Health Treatment Program Milestones"; a certificate of completion for group therapy, certificates of completion for various program including "Coping with Anger," "Interpersonal Development," "Symptom Management," and "Cultural Sensitivity"; and letters in support from his mother and the prison ministry.
In its opposition brief, the People conceded defendant's section 667.5, subdivision (b) enhancement must be stricken but otherwise asked the court to keep the prior sentence in place, for a new indeterminate term of 47 years to life. The People argued the ameliorative changes put forth by defendant were either available at the time of his sentencing, inapplicable, or should not be applied because of defendant's "criminal history, the nature of the offense in this case, and his ongoing danger to public safety."
In support, the People attached defendant's "disciplinary record" while in custody, which included some of defendant's violations, including "18 rule violations for indecent exposure or sexual disorderly conduct," and "many rule violations for fighting, battery on peace officers, resisting staff, behavior which could lead to violence, disobeying an order, possession of alcohol, refusing to accept assigned housing, damage of property, and overfamiliarity" over the past seven years.
In reply, defendant argued the record did not demonstrate he was a "current risk to public safety" (boldface, italics, &capitalization omitted) and that placement in a sexually violent predator unit would be "more appropriate treatment" in his case but his current institution did not provide such a program, and only one prison did have such a program.
At the hearing, the court began by stating, "I know that Defendant has raised that the best place for him to be is not CDCR but rather rehabilitating at a specialize[d] treatment program. [¶] However, I cannot guarantee that that would happen . . ., and I think all of us in this room . . . wish, that there was better treatment for [defendant's] issues in CDCR, I cannot wholly rely on other statutes to pick up the slack." The court then heard from counsel.
Defense counsel argued "[t]he nature of his offenses" and his "postoffense conduct demonstrates the ongoing mental illness." Defendant had also been "engaging in what is available in terms of treatment."
In his motion for resentencing, defendant stated he suffers from "Major Depression, Anxiety, Opioid Use Disorder, and Post Traumatic Stress Disorder." He also noted pending trial in his underlying conviction, his attorney declared doubt as to his competency, and he was found be incompetent by one psychiatrist in 2012. However, he was ultimately found competent to stand trial.
The court struck the one-year and five-year enhancements and sentenced defendant to 42 years to life. The court stated, section 1385, subdivision (c) "has been shown with respect to the five-year enhancement in that his mental illness is connected to the commission of the current offense. So I will be striking [section] 667(a)(1). I will be striking [section] 667.5(b) pursuant to statute. And I am going to take no further action on the sentence." The court stated, looking in the interests of justice, defendant's "significant postconviction history" is "what's causing me to make this decision."
Discussion
Contentions Regarding Competency and Services
Defendant contends his "current offense [and his] inability to freely consult w[ith] counsel during proceedings is connected to mental illness [and] the trial court's failure [to] transfer jurisdictions for [section] 1370 review was reversible error [and] deprived [him] of due process [and] a fair trial under the 4th, 5th, [and] 14th amendments."
At the resentencing hearing, defendant stated the district attorney had sent him a letter recommending he be resentenced pursuant to "AB 2942," and he asked for a "holding order" with his counsel to give them "time to figure it out." He stated, "I do have a due process right to have a counsel appointed for that to make the confirmation that the district attorney did make that recommendation." The trial court stopped defendant and stated, "We're only discussing this issue that we've been talking about today. As far as other filings, I cannot opine on those. I cannot give you advice on those. But if there is something that you are entitled to file, you can file it. [¶] . . . [¶] So I know that Counsel looks at all available remedies for their clients. And so she will be-I'm seeing her nod. She's going to look at what's available in your case. But today we're just focused on the [section] 1172.75 issue." Defendant did not state he needed more time to consult with counsel as to the section 1172.75 petition or that his ability to consult with counsel had been "restricted" or "impaired," as he now suggests. Nor does defendant state what more he wanted to talk to counsel about in his brief.
In response, the district attorney stated, that recommendation, to his knowledge, "has not occurred, and I'd be very surprised if that had occurred. [¶] What occurred more likely from what I know from the case is that [defendant] has written some letters to our office, and he may have been sent a form that would have given him an opportunity to seek relief under a particular code section. So I just want to make sure that the record doesn't leave that hanging."
The record shows the trial court reviewed the parties' briefs, defendant's statements, and counsels' arguments, including defense counsel's argument regarding defendant's mental illness as a contributing factor. Indeed, in striking the five-year enhancement, the trial court stated, section 1385, subdivision (c) "has been shown with respect to the five-year enhancement in that his mental illness is connected to the commission of the current offense. So I will be striking [section] 667(a)(1). I will be striking [section] 667.5(b) pursuant to statute."
Defendant next contends the trial court's "failure to refer issue to [sections] 1369 [and] 1370 court as to competency [and] right to be committed to mental facility or diversion deprived [him] of fundamental right to due process [and] a fair trial...."
It is not clear what defendant means when he argues the trial court erred by not committing him for diversion. We note although section 1001.36-the statute dealing with pretrial diversion-was enacted after defendant was originally sentenced and applies retroactively to nonfinal judgments, that is not the case here. (People v. Braden (2023) 14 Cal.5th 791, 805 [a timely section 1001.36 request must be made before attachment of jeopardy at trial or entry of a guilty or no contest plea, whichever occurs first].) Moreover, section 1001.36 is inapplicable because "[a] defendant may not be placed into a diversion program, pursuant to this section," if he has been charged with lewd or lascivious acts on a child under 14, as defendant was here. (§ 1001.36, subd. (d)(4).)
Section 1370 provides a procedure for the subsequent proceedings if defendant is found mentally competent or incompetent. It states, "If the defendant is found mentally incompetent, the trial, the hearing on the alleged violation, or the judgment shall be suspended until the person becomes mentally competent." (§ 1370, subd. (a)(1)(B).)
To the extent defendant contends the trial court should have held a competency hearing during his original trial, we need not reach this contention. An appeal from a postjudgment petition for resentencing is not a vehicle to challenge the original judgment on other grounds. (See People v. Farfan (2021) 71 Cal.App.5th 942, 947 [the mere filing of a § 1172.6 petition does not afford the petitioner a new opportunity to raise claims of trial error]; People v. Allison (2020) 55 Cal.App.5th 449, 461 [a petition for resentencing does not provide a do-over on factual disputes that have already been resolved], disapproved on another ground as stated in People v. Strong (2022) 13 Cal.5th 698, 718, fn. 3.)
We also reject defendant's request for a remand for a new trial because he had "no earlier opportunity to raise the issues." We reiterate this is an appeal from a resentencing. Additionally, defendant never made a motion for a new trial in the trial court. There can be no error when no motion for new trial was filed or orally requested. Failure to move for a new trial prior to pronouncement of judgment constitutes a waiver of the right to a new trial. (People v. Braxton (2004) 34 Cal.4th 798, 813-815.) Moreover, appellant did not indicate to the trial court any possible grounds for a new trial, nor has he identified the new evidence upon which his argument for a new trial on appeal rests. A defendant must specify the grounds relied upon in making a motion for new trial in the trial court and the failure to do so forfeits the issue for appeal. (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 332.)
To the extent defendant now claims he was incompetent to be resentenced, we disagree. In order for a defendant to be competent, he must have a" 'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding'" and have" 'a rational as well as factual understanding of proceeding against him.'" (Dusky v. United States (1960) 362 U.S. 402, 402.) A trial court has a sua sponte duty to hold a competency hearing whenever the evidence before it raises a reasonable doubt as to the defendant's competence. (Pate v. Robinson (1966) 383 U.S. 375, 385; People v. Stanley (1995) 10 Cal.4th 764, 804.) "Reviewing court's give great deference to a trial court's decision whether to hold a competency hearing." (People v. Marks (2003) 31 Cal.4th 197, 220; People v. Avila (2004) 117 Cal.App.4th 771, 778.)
Here, no one, at any point, questioned defendant's competency or requested a hearing on the issue of competency. Moreover, defendant spoke at the resentencing hearing and was able to fully communicate with the trial court. In short, there was no evidence suggesting a doubt as to defendant's competence, and the trial court did not err in failing to hold a competency hearing.
Relatedly, defendant contends his "mental incapacity during trial [and] resentencing proceedings entitles [him] to mental treatment," and the court should have committed him to inpatient or outpatient mental health treatment. We note defendant is receiving some treatment. Indeed, in his section 1172.75 petition, defendant stated he "has participated in mental health programming and has engaged in substantial and extensive treatment for his substance use disorder and mental health issues," and he attached several certificates to his petition for group therapy and various programs he has attended while at prison. (Italics added.) Although the trial court questioned whether the services defendant was receiving were "adequate," it ultimately decided to impose the same sentence-less the five-year and one-year enhancements-after weighing defendant's postconviction history, the interests of justice, the underlying offenses, and public safety. This is not an abuse of discretion. (People v. Knowles (2024) 105 Cal.App.5th 757, 764 ["We review discretionary sentencing decisions for an abuse of discretion."].)
Repeated Contentions Made at Resentencing
Defendant, citing section 1385, subdivision (c), contends he presented several mitigating factors-application of the enhancement would result in a discriminatory racial impact (§ 745, subd. (a)(4)), application of the enhancement could result in a sentence over 20 years, the current offense is connected to mental illness, and the current offense is connected to prior victimization or childhood trauma-which the court should have afforded great discretion.
Section 1385, subdivision (c) provides that the "court shall dismiss an enhancement if it is in the furtherance of justice to do so," and "[i]n 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." Defendant contends subparagraphs (A), (C), (D), and (E) are present here.
These arguments were presented below, and as we have noted, the trial court did not abuse its discretion, in striking the enhancements but not further reducing defendant's sentence.
For the same reasons, we also reject defendant's contention the court should have exercised its discretion to sentence defendant on count 2 and stay count 1 because section 654 no longer requires a trial court to punish under the longest possible term of imprisonment.
For the first time on appeal, defendant contends the trial court's and trial counsel's failure "to visit [and] consider intimate partner violence" as a contributing factor in "resentencing violated due process." Defendant has forfeited this claim because neither in his briefing nor at the hearing did defendant claim that he suffered "intimate partner violence" as a contributing factor to the offense. (See People v. Tilley (2023) 92 Cal.App.5th 772, 778 [claim trial court abused its discretion in not applying § 1170, subd. (b)(6) forfeited where the defendant did not seek lower term based on statute or argue he suffered trauma].)
In an effort to avoid forfeiture, defendant contends counsel's performance was ineffective. However, regardless of whether counsel did or did not bring this issue up at resentencing, defendant cannot show prejudice because the trial court did exercise its discretion to strike defendant's enhancements. (People v. Mays (2017) 15 Cal.App.5th 1232, 1238 [To prevail on his ineffective assistance claim, a defendant must show counsel's performance was deficient and the deficient performance prejudicial].)
Finally, defendant contends the trial court should have exercised its discretion to dismiss his prior strike conviction pursuant to section 1385, subdivision (a) and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. This argument too was made below, and the trial court declined to further reduce defendant's sentence.
In any event, "[i]t is well established . . . that section 1385, subdivision (c) applies by its terms to a sentence 'enhancement,' but not to a sentence derived from the alternative sentencing scheme of the Three Strikes law. (§ 1385, subd. (c); People v. Dain (2024) 99 Cal.App.5th 399, 410-422 . . . (Dain), review granted May 29, 2024, S283924 ['Courts of Appeal have uniformly concluded that section 1385(c) does not apply to the decision whether to dismiss a prior strike conviction because the Three Strikes law is an alternative sentencing scheme, not an enhancement']; People v. Olay (2023) 98 Cal.App.5th 60, 66-67 . . . [if the Legislature had wanted § 1385, subd. (c) to apply to prior strikes as well as to enhancements as legally defined, it would have said so]; People v. Burke (2023) 89 Cal.App.5th 237, 244 . . . ['The plain language of subdivision (c) of section 1385 applies only to an "enhancement," and the Three Strikes law is not an enhancement']; see Dain, supra, 99 Cal.App.5th at pp. 410-412, review granted [agreeing with Burke and Olay and recognizing that § 1385, subd. (c)(2)(H), which provides that a prior strike conviction over five years old is a mitigating circumstance, would directly conflict with the Three Strikes law].)" (People v. Dowdy (Nov. 26, 2024, A168182) ____Cal.App.5th____ .)
Defendant contends his sentence did not comply with Senate Bill No. 567 (2021-2022 Reg. Sess.) and section 1170 as to count 1 because the upper term was imposed without the "required stipulation or fact finding beyond a reasonable doubt."
Section 1172.75 generally states "a trial court must apply ameliorative changes in the law when resentencing pursuant to its terms," which include "the 2022 amendments to section 1170, subdivision (b) that require aggravating factors to be proven beyond a reasonable doubt before the upper term can be imposed." (People v. Brannon-Thompson (2024) 104 Cal.App.5th 455, 466.) As amended, section 1170 provides, when a "judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term." (§ 1170, subd. (b)(1).) The court may impose the upper term only when there are circumstances in aggravation and the facts supporting those circumstances are stipulated to by the defendant or found true beyond a reasonable doubt by the trial judge or jury. (Id., subd. (b)(2).)
Here, the trial court sentenced defendant to the previously imposed 15 years-to-life (doubled) term for the section 288.7 conviction (count 1). However, section 288.7 does not provide for a tripartite sentencing scheme, instead it states, "Any person 18 years of age or older who engages in oral copulation or sexual penetration . . . with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 15 years to life." (§ 288.7, subd. (b), italics added.) Thus, section 1170 is inapplicable to that count.
Custody Credits
Defendant contends the December 2023 amended abstract of judgment inaccurately reflects custody credits, "listing the actual original 1,049 days [and] 157 days local conduct credit." This issue is moot. At the request of counsel, this court granted judicial notice of an amended abstract of judgment filed on July 15, 2024, which now reflects the "proper presentence credits" of 4,983 total credits (4,826 actual and 157 local). Defendant contends the "July 15, 2024's abstract of judgment's failure to indicate direction to CDCR, CDCR's non-response to update appellant's credits [and] the court's insinuation as if to reimpose the previously stayed count #2 288(a) is procedural error warranting a new sentencing hearing." It is unclear what defendant is referring to here. Count 2 remains stayed, the box is checked for the "CDCR to calculate post-conviction and good conduct credits," and the credits have been updated. Defendant does not state how the credits were miscalculated. If defendant alleges an error in calculating custody credits, "the best remedy . . . is to bring the matter to the trial court's attention." (People v. Meza (1995) 38 Cal.App.4th 1741, 1749.)
Challenge to Underlying Conviction
Finally, defendant challenges the underlying convictions and contends they were based on "less than proof beyond a reasonable doubt" as to every element of the charged offenses, which deprived him of a fair trial and violated his due process rights. Defendant contends the "record supports rational inferences consistent [with] aquittal [sic] of the charges offenses [and] requires reversal" and that he should have been given "reconsideration of verdict" pursuant to section 1161. These are arguments that should have been raised on direct appeal from his conviction, not in the context of a resentencing petition on appeal, and so we do not address them. (See People v. Burns (2023) 95 Cal.App.5th 862, 865 [§ 1172.6 cannot be used to resurrect challenges that should have been raised in direct appeal from conviction].)
Section 1161 provides, in pertinent part, "When there is a verdict of conviction, in which it appears to the court that the jury have mistaken the law, the court may explain the reason for that opinion and direct the jury to reconsider their verdict, and if after the reconsideration, they return the same verdict, it must be entered; but when there is a verdict of acquittal, the court cannot require the jury to reconsider it."
In People v. Delgadillo (2022) 14 Cal.5th 216, our Supreme Court held the Wende independent review procedure is not constitutionally required in an appeal from a postconviction order denying a section 1172.6 resentencing petition because the denial does not implicate a defendant's constitutional right to counsel in a first appeal as of right. (Delgadillo, at pp. 222, 224-226.) Additionally, general due process principles regarding fundamental fairness do not compel Wende review of such an order. (Id. at pp. 229-232.) However, if a no-issues brief is filed, and a defendant then "files a supplemental brief or letter, the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion." (Id. at p. 232.) The reviewing court is not required to conduct "an independent review of the entire record to identify issues" but may do so at its discretion. (Ibid.) While Delgadillo addressed Wende application to postconviction relief under section 1172.6 (Delgadillo, at p. 231, fn. 5), we nonetheless determine the same principles apply, given this is not a first appeal of right. Having addressed defendant's contentions raised in his supplemental brief, we decline to exercise our discretion to independently review the record.
Disposition
The order resentencing defendant under section 1172.75 is affirmed.
We concur: Langhorne Wilson, J. Hill, J. [*]
[*] Judge of the San Mateo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.