Opinion
G061565
01-22-2024
THE PEOPLE, Plaintiff and Respondent, v. MARK WILLIAM ANTHONY, Defendant and Appellant.
Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier, Paige B. Hazard, and Sahar Karimi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 18CF2411 Andre De La Cruz, Judge.
Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier, Paige B. Hazard, and Sahar Karimi, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SANCHEZ, ACTING P. J.
A jury convicted defendant Mark William Anthony of driving under the influence causing bodily injury (Veh. Code, § 23153, subd. (a); count 1) and driving with a blood alcohol concentration of 0.08 percent or more causing bodily injury (id., subd. (b); count 2). The jury also found true allegations that defendant had a blood alcohol concentration of 0.20 percent or more (Veh. Code, § 23538, subd. (b)(2)) and that he personally inflicted great bodily injury on another person (Pen. Code, § 12022.7, subd. (a)).
All further statutory references are to the Penal Code unless otherwise stated.
In a bifurcated bench trial, the court found true the following factors in aggravation regarding count 1: (1) the offense involved great violence, great bodily harm, threat of great bodily harm, and other acts disclosing a high degree of cruelty, viciousness, and callousness within the meaning of California Rules of Court, rule 4.421(a)(1); and (2) the offense involved attempted and actual taking and damage of great monetary value within the meaning of California Rules of Court, rule 4.421(a)(9). The court later sentenced defendant to five years in state prison as follows: (1) the middle term of two years on count 1 (Veh. Code, § 23153, subd. (a)); and (2) a consecutive three years on the enhancement for inflicting great bodily injury (Veh. Code, § 12022.7, subd. (a)). The court stayed sentence on count 2 and the related enhancements pursuant to section 654.
On appeal, defendant contends the court did not understand the full scope of its sentencing discretion because it did not consider his childhood trauma, a mitigating sentencing factor under section 1170 that would support a lower-term sentence. We disagree with defendant's contention and affirm the judgment.
FACTS
Prosecution Case
In May 2018, defendant was driving his vehicle around 5:15 p.m.
According to the prosecution, defendant did not yield at an intersection that had no traffic light or stop sign, made a left turn in front of the victim's vehicle, and caused a collision. The victim's vehicle hit a wall and a palm tree and then stopped in someone's front yard. The victim suffered a brain bleed, collapsed lung, numerous broken bones, and his ear was cut in half. He also was in a wheelchair at the time of trial.
When an officer arrived at the scene, she arrested defendant after he failed sobriety tests. Defendant admitted to drinking two beers, and his blood alcohol level was 0.21 percent according to a chemical breath test and 0.237 percent according to a subsequent blood test.
At the scene of the accident, defendant told the officer he was driving his vehicle and making a left turn when the collision occurred. After his arrest, defendant told the officer he was completely stopped in the left turn lane, and the victim's vehicle swerved and collided into his vehicle. The officer testified the latter statement was not correct based on the final position of the vehicles and the resulting damage.
Defense Case
A witness testified he heard the crash outside of his house and found the victim unconscious in his vehicle. He also testified the victim was not wearing a seatbelt.
Defendant's counsel also presented evidence that the speed limit in the area was 35 miles per hour. A collision reconstructionist opined that the victim's vehicle was travelling at least 52 miles per hour at the time of impact and caused the crash, while defendant's vehicle was traveling at 20 miles per hour. He further testified the collision would not have occurred if the victim was driving the speed limit of 35 miles per hour. He believed the collision was caused by the victim's excessive speed and not by defendant driving under the influence.
DISCUSSION
Defendant contends the court abused its discretion when it imposed the middle term of two years on count 1 because it did not consider defendant's childhood trauma, which would support imposing the lower term. Defendant accordingly argues his case should be remanded to the trial court for resentencing under section 1170, subdivision (b)(6), for the lower-term sentence. We disagree.
Applicable Law and Standard of Review
Effective January 1, 2022, Senate Bill No. 567 (2021-2022 Reg. Sess) amended section 1170. (Stats. 2021, ch. 731, § 1.3.) Following the amendment, the middle term for any offense with a sentencing triad became "the presumptive sentence . . . unless certain circumstances exist." (People v. Flores (2022) 73 Cal.App.5th 1032, 1038.)
Relevant here, Assembly Bill No. 124 (2021-2022 Reg. Sess.) added subdivision (b)(6) to section 1170. (Stats. 2021, ch. 695, § 5.1; People v. Flores, supra, 73 Cal.App.5th at pp. 1038-1039.) This subdivision provides: "[U]nless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense: [¶] (A) The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence." (§ 1170, subd. (b)(6)(A).)
Relevant Sentencing Background
During the sentencing hearing, the court stated it "read and considered the entirety of the probation report including all correspondence attached thereto." Among other things, the probation report included an interview with defendant where he described his older sister as a bully and explained she was physically and emotionally abusive to him. Due to his sister's abuse, defendant was diagnosed with depression as a child. He also reported he and his sister had not mended their relationship when she passed away. Regarding his education, he stated he hated school through junior high and described it as torture, but his experience improved in high school. Defendant further noted he was adopted but had a very good relationship with his parents, and he met his biological father who passed away from cancer. Finally, he explained that the time around the instant offense was stressful for him because he had lost his job, was diagnosed with terminal cancer, his biological father was dying from cancer, and his adoptive father had Alzheimer's and suffered a heart attack.
Defendant's sentencing brief noted various mitigating circumstances, including defendant's terminal cancer diagnosis. Defendant requested formal probation or an execution of sentence to be suspended.
The People submitted a sentencing brief recommending the maximum sentence of six years based on the aggravating circumstances found true by the trial court. Among other things, the People also argued probation should be denied because defendant had a prior conviction for driving under the influence.
After considering the above, the court selected the middle term of two years when sentencing defendant for driving under the influence causing bodily injury (Veh. Code, § 23153, subd. (a)).
Analysis
The parties concede defendant's counsel never informed the trial court that section 1170, subdivision (b)(6) was an issue. The Attorney General argues defendant forfeited the argument that his childhood trauma was a contributing factor to the offense and supported a lower term sentence because defendant failed to raise this argument below. Defendant counters with a claim of ineffective assistance of counsel. Assuming, without deciding, defendant did not forfeit his argument, the trial court exercised informed discretion, and in any event, would have reached the same conclusion even if defendant's counsel had brought section 1170, subdivision (b)(6) to the court's attention.
At the time of defendant's sentencing hearing in June 2022, the changes to section 1170 had been in effect for about six months. "In the absence of evidence to the contrary, we presume that the court 'knows and applies the correct statutory and case law.'" (People v. Thomas (2011) 52 Cal.4th 336, 361.) If the record indicates "the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) "A court which is [also] unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record." (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) "In such circumstances, . . . the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (Ibid.)
Here, while the court did not explicitly reference section 1170, subdivision (b)(6), the court stated it had considered the probation report, which outlined facts pertaining to defendant's childhood trauma. Indeed, defendant concedes the facts showing his "childhood physical and emotional abuse and the bullying 'which kept me in a constant state of terror and fear'" are in the probation report. But defendant argues the probation officer did not identify these facts as mitigating sentencing factors. To the contrary, the probation report noted no mitigating factors existed based on California Rules of Court, rule 4.423. The latter rule addresses factors constituting circumstances in mitigation, including the following: "The defendant experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence and it was a factor in the commission of the crime." (Cal. Rules of Court, rule 4.423(b)(3).) This language parallels the language in section 1170, subdivision (b)(6)(A). In short, the probation report, which the trial court clearly stated it had read, cited relevant rules regarding childhood trauma as a mitigating sentencing factor.
We further note section 1170, subdivision (b)(6) requires a showing that the childhood trauma was a "contributing factor in the commission of the offense." (Id., subd. (b)(6)(A).) When discussing his alcohol use, defendant never connected his drinking to any childhood trauma. Instead, the facts suggest defendant drank alcohol to cope with his own cancer diagnosis, his biological father's death, and to celebrate a new job on the day of the accident. In light of these facts, we have no doubt the trial court exercised informed discretion and would again sentence defendant to the middle term on count 1 if given the opportunity to reconsider defendant's mitigating childhood trauma.
DISPOSITION
The judgment is affirmed.
WE CONCUR: MOTOIKE, J., DELANEY, J.