Opinion
A166571
04-19-2024
THE PEOPLE, Plaintiff and Respondent, v. ADAM DOUGLAS BRANKS, Defendant and Appellant.
NOT TO BE PUBLISHED
Napa County Super. Ct. No. 18CR004041
Fujisaki, J.
Defendant Adam Douglas Branks appeals after he was resentenced following a prior appeal. At the resentencing proceeding, the trial court struck a one-year prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) and reduced defendant's restitution fine and attendant parole revocation restitution fine, but otherwise denied defendant's requests to alter his sentence. On appeal, defendant contends the court erred by: (1) not ordering a new probation report; (2) not considering the mitigating factors set out by recent amendments to section 1170, subdivision (b); (3) not considering section 1385, subdivision (c), in deciding whether to strike two enhancements and his "strike" prior; and (4) not adequately stating reasons for its sentencing decision under section 654. He further contends his attorney at the resentencing proceedings was ineffective. We affirm.
All further undesignated statutory references are to the Penal Code.
Factual and Procedural Background
The facts underlying defendant's crimes are set out in more detail in our prior opinion addressing defendant's appeal from his conviction and original sentence. (People v. Branks (Mar. 23, 2022, A158498) [nonpub. opn.] (Branks I).) To provide context to the resentencing proceedings in the instant appeal, we set out the following condensed statement of facts.
We grant defendant's unopposed request for judicial notice of the briefs and our opinion in his prior appeal, case no. A158498. In addition to the foregoing, we will take judicial notice of the record in the prior appeal. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
Defendant began dating V.M. in the summer of 2018, and shortly thereafter began abusing her. (Branks I, supra, at pp. *1-*2.) Among other things, he controlled her conduct, such as by forcing her to live with him in her car and panhandle, and he was physically and verbally abusive, such as by repeatedly threatening her. (Ibid.) In December 2018, defendant-who was under the influence of alcohol-led the police on a high-speed chase while V.M. was in the car. (Id. at pp. *2-*3.) During the chase, defendant threatened V.M.'s life, repeatedly struck her, ripped out her hair, and unbuckled her seatbelt causing her to fly forward toward the windshield when he braked. (Id. at p. *3.) After V.M. escaped from the car, defendant tried to strike her with the car he was driving. (Id. at pp. *3-*4.) He also rammed a California Highway Patrol (CHP) vehicle. Defendant eventually fled into a nearby marsh and evaded the police for nearly two hours; he was ultimately extracted from the marsh with the assistance of a police helicopter. (Id. at p. *4.) Defendant remained violent and combative in the hospital. (Ibid.)
"The People charged defendant with: attempted willful, deliberate, and premeditated murder (§ 187, subd. (a), count one); kidnapping (§ 207, subd. (a), count two); assault with a deadly weapon (§ 245, subd. (a)(1), counts three and fourteen); assault upon a peace officer or firefighter (§ 245, subd. (c), count four); dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1), count five); criminal threats (§ 422, count six); corporal injury to a person the defendant is dating (§ 273.5, subd. (a), counts seven and thirteen); assault by means likely to produce great bodily injury (§ 245, subd. (a)(4), count eight); evading an officer in willful disregard (Veh. Code, § 2800.2, subd. (a), count nine); vandalism (§ 594, subd. (b)(1), count ten); resisting an executive officer (§ 69, count eleven); and resisting, obstructing, or delaying a peace officer (§ 148, subd. (a)(1), count twelve). As to counts three and four, the People alleged defendant used a vehicle as a deadly weapon (Veh. Code, § 13351.5, subd. (a)). As to counts seven, eight, thirteen and fourteen, the People alleged defendant personally inflicted great bodily injury (§ 12022.7, subd. (e)). The People also alleged defendant had one prior strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and a prior serious felony conviction (§§ 667, subd. (a), 667.5, subd. (b))." (Branks I, supra, at p. 5.)
"A jury convicted [defendant] of all counts and found true the enhancement allegations, except the allegation that the attempted murder was willful, deliberate, and premeditated and the great bodily injury allegations as to counts thirteen and fourteen. Defendant admitted the prior strike and the prior conviction allegations. The trial court sentenced defendant to a total term of 36 years and eight months in prison." (Branks I, supra, at p. *6.) In doing so, the court imposed the midterm for the attempted murder count (count one), doubled under the Three Strikes Law, and imposed but stayed execution of the sentence for the assault with a deadly weapon count (count three) pursuant to section 654. The court denied defendant's Romero motion to dismiss his strike prior. Moreover, the court imposed a one-year four-month term for the great bodily injury enhancement as to count seven, a five-year term for the prior serious felony conviction enhancement (§ 667, subd. (a)), a one-year term for the prior prison term enhancement (§ 667.5, subd. (b)), ordered defendant pay a $10,000 restitution fine (§ 1202.4, subd. (b)), and imposed but stayed a parole revocation restitution fine (§ 1202.45).
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Defendant appealed from his conviction and sentence. We affirmed the judgment but remanded the matter for resentencing due to sentencing law changes that took effect while the prior appeal was pending. (Branks I, supra, at pp. *32-*36.) Specifically, we remanded to allow the trial court's reconsideration of its sentencing choices in light of: (1) an amendment to section 654 made by Assembly Bill No. 518 ("Assembly Bill 518") that removed the required imposition of the longest potential term of imprisonment as punishment in cases involving multiple convictions (Stats. 2021, ch. 441, § 1); and (2) an amendment to section 1170 made by Senate Bill No. 567 ("Senate Bill 567") that required imposition of the low term when certain enumerated factors contributed to the offense, unless aggravating circumstances outweighed mitigating ones (Stats. 2021, ch. 731, § 3). Additionally, we instructed the court, on remand, to strike the prior prison term enhancement (§ 667.5, subd. (b)) pursuant to Senate Bill No. 136 (2019-2020 Reg. Sess.) ("Senate Bill 136"). Moreover, in light of the remand for resentencing, we indicated defendant could again request that the court exercise its discretion to strike his strike prior under section 1385. (Id. at pp. *34-35.)
On remand, defendant asked the court to impose the low term on count three (assault with a deadly weapon) and to stay the sentence on count one (attempted murder) under the amendments to sections 654 and 1170 made by Assembly Bill 518 and Senate Bill 567, respectively. Further, he asked the court to strike the one-year prior prison term enhancement as per Senate Bill 136, to strike his five-year prior serious felony conviction enhancement pursuant to an amendment to section 1385 made by Senate Bill No. 1393, and to strike his strike prior pursuant to section 1385, subdivision (c) ("section 1385(c)"), which had been recently enacted pursuant to Senate Bill No. 81 ("Senate Bill 81"). He also requested reduction of the $10,000 restitution fine (§ 1202.4, subd. (b)). The defense submitted letters in support of defendant's requests from family members who indicated that defendant grew up in a fractured home, but that he had recently been kind to other prisoners and was meeting with counselors. Defendant's aunt indicated defendant was neglected and sexually abused as a child and teenager, and was prescribed psychotropic medication for his "anger issues on top of meds for ADHD, dyslexia and other perceived disorders."
The People opposed defendant's requests except for reduction of the restitution fine and striking the prior prison term enhancement. In urging the court to leave the remaining sentence unchanged, the People emphasized that defendant committed egregious acts of domestic violence and numerous crimes which endangered the public and law enforcement officers. With regard to defendant's requests to strike his strike prior and prior serious felony conviction (§ 1385), the People noted the court already denied defendant's Romero motion at his original sentencing.
Ultimately, the trial court struck the prior prison term enhancement and reduced the restitution fine (and attendant parole revocation restitution fine) to the minimum of $300, but made no other changes to the sentence. The court imposed a total sentence of 35 years and 8 months. This appeal followed.
In conjunction with this appeal, defendant filed a petition for writ of habeas corpus, In re Branks, case no. A168854. We have denied the petition by separate order filed this date.
Discussion
A. Probation Report
Defendant first argues the trial court erred by not ordering a new probation report, which would have included information regarding his behavior while incarcerated during the pendency of his appeal. He relies on California Rules of Court, rule 4.411(a), which provides: "the court must refer the case to the probation officer for: [¶] (1) A presentence investigation and report if the defendant: [¶] (A) Is statutorily eligible for probation or a term of imprisonment in county jail under section 1170(h); or [¶] (B) Is not eligible for probation but a report is needed to assist the court with other sentencing issues, including the determination of the proper amount of restitution fine; (2) A supplemental report if a significant period of time has passed since the original report was prepared."
All further undesignated rule references are to the California Rules of Court.
The People argue defendant forfeited this claim because he did not ask for a probation report or object to proceeding without one at the resentencing proceeding. We agree. "[T]he failure, by a defendant who was not eligible for probation, to request a supplemental probation report or object to proceeding without one resulted in 'waiver of a supplemental report in the trial court and forfeiture of the right to object to the absence of such a report on appeal.' [Citation.] This is so . . . 'even where . . . the issue before the sentencing court was whether to exercise discretion to dismiss a strike under section 1385 and People v. Superior Court[, supra,] 13 Cal.4th 497.' [Citation.] By statute and by rule, the court must request a presentence investigation report only where the defendant is eligible for probation or 'a report is needed to assist the court with other sentencing issues, including the determination of the proper amount of restitution fine.' (Cal. Rules of Court, rule 4.411(a)(1)(B); see § 1203, subds. (b) &(g).) It must request a supplemental report 'if a significant period of time has passed since the original report was prepared.' (Cal. Rules of Court, rule 4.411(a)(2).) The courts have held that a supplemental report is necessary only in the circumstances in which a report is required in the first instance, i.e., when the defendant is eligible for probation or a report is necessary to assist the court with other sentencing issues such as the amount of a restitution fine." (People v. Campbell (2023) 98 Cal.App.5th 350, 385; see People v. Bullock (1994) 26 Cal.App.4th 985, 990 (Bullock) ["The trial court is in the best position to evaluate the need for an updated report, with the input of counsel."].)
Our review of the record does not disclose that defendant requested another probation report or objected to proceeding without one. Moreover, defendant is ineligible for probation. (See § 667, subd. (c)(2); § 1170.12, subd. (a)(2).)
Defendant insists an updated probation report was required under rule 4.411(a)(2) because a significant period of time elapsed since the original report was prepared. Defendant, however, relies on cases merely indicating that a probation report is discretionary for probation-ineligible defendants. (E.g., Bullock, supra, 26 Cal.App.4th at p. 989.) One of the cases he relies on, People v. Johnson (1999) 70 Cal.App.4th 1429 (Johnson), concerned former rule 411, which is quite similar to current rule 4.411 and provided:
" '(a) [Eligible defendant] If the defendant is eligible for probation, the court shall refer the matter to the probation officer for a presentence investigation and report. Waivers of the presentence report should not be accepted except in unusual circumstances. [¶] '(b) [Ineligible defendant] Even if the defendant is not eligible for probation, the court should refer the matter to the probation officer for a presentence investigation and report. [¶] '(c) [Supplemental reports] The court shall order a supplemental probation officer's report in preparation for sentencing proceedings that occur a significant period of time after the original report was prepared.'" (Johnson, supra, 70 Cal.App.4th at p. 1431, fn. 2.) The Johnson court rejected the defendant's argument that former rule 411(c) required a court to order a new probation report before resentencing a defendant: "[t]he only reasonable interpretation of rule 411(c), reading it in light of rule 411(a) and rule 411(b), is that a supplemental report is required only if the defendant is eligible for probation." (Johnson, at pp. 1431-1432.)
Defendant also relies on People v. Brady (1984) 162 Cal.App.3d 1 and its progeny for the proposition that a new probation report is categorically required for resentencing. (See, e.g., People v. Flores (1988) 198 Cal.App.3d 1156, 1160.) But "Brady has since been abrogated to the extent it holds a new probation officer's report is mandatory where a defendant is ineligible for probation." (People v. Yanaga (2020) 58 Cal.App.5th 619, 626, fn. 2 [but acknowledging there"' "may be compelling reasons for ordering a probation report even when the defendant is ineligible for probation," '" such as when"' "defendant's postconviction behavior and other possible developments remain relevant to the trial court's consideration upon resentencing"' "]; Bullock, supra, 26 Cal.App.4th at pp. 987-990 [Fifth District Court of Appeal disavows its ruling in Brady mandating a probation referral in all cases].)
To bolster his case, defendant asserts he was only presumptively ineligible for probation under section 667, subdivision (c), because the court had the power to strike his strike prior. This belated argument, made for the first time in defendant's reply brief, is unpersuasive. Though a probation report is discretionary for a defendant ineligible for probation because of prior strike convictions, a court is not required to order a supplemental report in order to "determine whether to exercise its discretion to dismiss a strike under section 1385"; otherwise, the court could never decline to order such a report if a strike were alleged, and this "is clearly not the law." (People v. Llamas (1998) 67 Cal.App.4th 35, 39-41 &fn. 8.)
In sum, omitting to order a new probation report was not error.
B. Section 1170
As relevant here, Senate Bill 567 amended section 1170, subdivision (b) ("1170(b)") to specify that, "unless the court finds that the aggravating circumstances outweigh the mitigating circumstances [so] 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. [¶] (B) The person is a youth or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense...." (Stats. 2021, ch. 731, §§ 1.3, 3(c), adding § 1170(b)(6); People v. Salazar (2023) 15 Cal.5th 416, 426.)
Defendant contends the trial court erred by selecting the midterm for the attempted murder count (count one) as the principal term without considering the mitigating factors set out in section 1170(b). Pointing to a letter submitted by his aunt that recounted his childhood abuse, defendant highlights the circumstance that the court made no mention of this matter when imposing the midterm on the attempted murder count. We are unpersuaded.
"Absent evidence to the contrary, we presume that the trial court knew and applied the governing law." (People v. Gutierrez (2014) 58 Cal.4th 1354, 1390 (Gutierrez).) Furthermore, "[t]he court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary." (People v. Myers (1999) 69 Cal.App.4th 305, 310 (Myers).)
Here, the transcript of the resentencing proceeding belies defendant's claim that the trial court ignored the letters submitted on his behalf, or that it failed to apply section 1170(b). Contrary to defendant's assertions, the record shows the court was provided letters on his behalf, and the court specifically mentioned the aunt's letter during the hearing. The court also referenced this court's prior opinion and the parties' sentencing briefs, all of which set out the law under amended section 1170(b). Moreover, the People's briefing and argument set out numerous aggravating circumstances present in the case, and defendant did not contest the People's summation of those factors.
On this record, we may reasonably assume that the trial court was aware of its obligations under section 1170(b), and that it found the aggravating circumstances more significant than defendant's evidence of mitigation. When the trial court made its resentencing decision, it recollected the original sentencing "very clearly" and referenced the aggravated nature of the offenses. Specifically, the court recalled "the facts of the case regarding the video and how . . . extremely dangerous the chase was on Highway 37 and the period of the manipulation of the victim in this case and physical beating, the kidnapping, the string of events, it wasn't just over one acute moment but a period of prolonged psychological abuse to the victim in the case." In rejecting defendant's request to be given "the low term on Count 1," the court pointedly observed that "Count 1 has the added element of the intent to kill and that was evidenced very clearly . . . through [defendant's] words and his actions that day ...."
Defendant suggests the trial court erred because "when he drove his vehicle in his ex-girlfriend's direction, the video suggests strongly that his primary motive was to flee the scene and that she was in the path of his escape. Any intent to kill [he] may have formed was formed spontaneously in seconds in front of dozens of police officers." Defendant, however, has forfeited review of this claim because he could have, but did not, argue this alternative interpretation of the evidence to the court. In any event, the resentencing judge was the same judge who presided over the trial and saw all the evidence firsthand. We see no basis for relief on this ground.
Defendant fails to show the court erred, prejudicially or otherwise, in applying section 1170(b).
C. Section 1385, subdivision (c)
1. The great bodily injury and prior serious felony conviction enhancements
Effective January 1, 2022, Senate Bill 81 amended section 1385 by adding subdivision (c) ("1385(c)"), which provides a court shall dismiss an enhancement if it is in the furtherance of justice to do so, "except if dismissal of that enhancement is prohibited by any initiative statute." (Stats. 2021, ch. 721, § 1.) The statute lists various nonexclusive mitigating factors and specifies that "[p]roof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. 'Endanger public safety' means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others." (§ 1385(c)(2), (4).) As relevant here, these enumerated mitigating circumstances include when multiple enhancements are alleged in a single case, and when the offense is connected to mental illness, prior victimization or childhood trauma. (§ 1385(c)(2).)
In this context, section 1385 explains that "a mental illness is a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder but excluding antisocial personality disorder, borderline personality disorder, and pedophilia. A court may conclude that a defendant's mental illness was connected to the offense if, after reviewing any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant's mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense, the court concludes that the defendant's mental illness substantially contributed to the defendant's involvement in the commission of the offense." Moreover," '[c]hildhood trauma' means that as a minor the person experienced physical, emotional, or sexual abuse, physical or emotional neglect. A court may conclude that a defendant's childhood trauma was connected to the offense if, after reviewing any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, medical records, or records or reports by qualified medical experts, the court concludes that the defendant's childhood trauma substantially contributed to the defendant's involvement in the commission of the offense."
Defendant contends the trial court had discretion to strike the great bodily injury enhancement (§ 12022.7, subd. (e)) and the enhancement for a prior serious felony conviction (§ 667, subd. (a) ("667(a)")) pursuant to newly enacted section 1385(c) but failed to consider doing so since it did not mention the evidence of defendant's prior abuse or whether it may have contributed to his crimes. This argument fails.
Again, "we presume that the trial court knew and applied the governing law" (Gutierrez, supra, 58 Cal.4th at p. 1390) and "considered all of the relevant factors in the absence of an affirmative record to the contrary" (Myers, supra, 69 Cal.App.4th at p. 310).
Here, the record fails to reflect any judicial misunderstanding or misapplication of the law. The court mentioned its consideration of defendant's resentencing brief, which had extensively discussed the amended law and the meaning of the term "enhancement." And as the record discloses, the court explicitly considered whether to strike the prior serious felony conviction enhancement in furtherance of justice, and it explained its decision not to do so based on its observations that the prior conviction was close in time to the offense, that there was no prolonged period of law-abiding behavior, and that other circumstances weighed against it, such as the seriousness of defendant's criminal behavior, the great bodily harm that defendant inflicted, and the degree of cruelty and viciousness involved. Although defendant never explicitly asked the court to strike the great bodily injury enhancement, nothing in the record suggests the court did not understand its discretion to do so under section 1385(c).
At the original sentencing, the court imposed a one-year four-month term for the great bodily injury enhancement as to count seven, and imposed but stayed the same term for the same enhancement as to count 8 pursuant to section 654.
Defendant cites People v. Walker (2022) 86 Cal.App.5th 386 (Walker), review granted March 22, 2023, S278309, which concluded that "section 1385's mandate to 'afford great weight' to mitigating circumstances erects a rebuttable presumption that obligates a court to dismiss the enhancement unless the court finds that dismissal of that enhancement- with the resulting shorter sentence-would endanger public safety." (Walker, at p. 391.) Though defendant fails to explain his cite to Walker, we understand him to contend that the court erred by failing to apply the alleged "rebuttable presumption" referenced in Walker. We are not convinced.
After Walker was decided, two other decisions-People v. Ortiz (2023) 87 Cal.App.5th 1087 (Ortiz), review granted April 12, 2023, S278894, and People v. Ponder (2023) 96 Cal.App.5th 1042 (Ponder), review granted Jan. 10, 2024, S282925, expressed disagreement with Walker. Because these later decisions rest solidly on the plain language and legislative history of section 1385(c), we find them more persuasive than Walker.
As Ortiz explained: "The plain language of section 1385(c)(2) contemplates the trial court's exercise of sentencing discretion, even as it mandates that the court give 'great weight' to evidence of enumerated factors. The legislative history of Senate Bill 81 reflects that this was no accident: the language of section 1385(c)(2) as enacted replaced proposed language that would have mandated 'a presumption that it is in the furtherance of justice to dismiss an enhancement' that could only 'be overcome by a showing of clear and convincing evidence that dismissal of the enhancement would endanger public safety.' (See Sen. Bill No. 81 as amended August 30, 2021; see also Sen. Rules Com., Off. of Sen. Floor Analyses, analysis of Sen. Bill No. 81 (2021-2022 Reg. Sess.) as amended Aug. 30, 2021, at p. 2 [reflecting that Assembly amendments to Sen. Bill No. 81 '[r]emove[d] the presumption that it is in the interests of justice to dismiss an enhancement when specified circumstances are found to be true and instead provide[ ] that the court shall, in exercising its discretion to dismiss an enhancement in the interests of justice, consider and afford great weight to evidence of those specified circumstances'].) Had the Legislature intended to establish a rebuttable presumption . . ., it could have approved the language of the earlier version of the bill. We are unable to ignore the fact that it did not." (Ortiz, supra, 87 Cal.App.5th at pp. 1096-1097; Ponder, supra, 96 Cal.App.5th at pp. 10511052 [citing same].)
Thus, in the words of the Ponder court: "we reject defendant's argument that section 1385(c)(2) requires dismissal of an enhancement when a mitigating circumstance is present unless the sentencing court finds dismissal would endanger public safety. Instead, . . . the court retains discretion under section 1385(c)(2) to choose not to dismiss the enhancement in the furtherance of justice for reasons other than public safety." (Ponder, supra, 96 Cal.App.5th at p. 1052.) Here, defendant made no showing that the trial court erred or abused its discretion in failing to strike either the great bodily injury enhancement or the prior serious felony conviction enhancement pursuant to section 1385(c).
2. The strike prior
Contending that a strike prior is an "enhancement" for purposes of section 1385(c), defendant argues that statute required the trial court to consider striking the strike prior, with great weight given to his history of child abuse and mental illness. This is meritless.
Case law does not support defendant's contention. In fact, People v. Burke (2023) 89 Cal.App.5th 237 rejected the very same argument: "Subdivision (c) of section 1385 expressly applies to the dismissal of an 'enhancement.' (§ 1385(c)(1).) 'Ordinarily words used in a statute are presumed to be used in accordance with their established legal or technical meaning.' [Citation.] The term 'enhancement' has a well-established technical meaning in California law. [Citation.] 'A sentence enhancement is 'an additional term of imprisonment added to the base term."' [Citations.] It is equally well established that the Three Strikes law is not an enhancement; it is an alternative sentencing scheme for the current offense. [Citations.] We presume the Legislature was aware of, and acquiesced in, both this established judicial definition of enhancement and the distinction between an enhancement and an alternative sentencing scheme such as the Three Strikes law. [Citations.] The Legislature did not otherwise define the word 'enhancement' in section 1385. Because the statutory language is clear and unambiguous, we follow its plain meaning and do not consider the legislative history cited by defendant." (Burke, at p. 243; People v. Dain (2024) 99 Cal.App.5th 399, 410-411, petn. for review pending [adopting the reasoning in Burke].)
In People v. Olay (2023) 98 Cal.App.5th 60, our colleagues in Division Five likewise rejected the same argument, albeit with different reasoning. (Olay, at pp. 66-67.) There the court observed section 1385(c)(2)(G) provided that a" 'criminal conviction[] [or] juvenile adjudication[] . . . that trigger[s] the enhancement or enhancements applied in the current case' is a mitigating circumstance to which a trial court must 'afford great weight' in deciding whether to dismiss an 'enhancement.'" (Olay, at p. 66.) Finding that no enhancement is triggered by a juvenile adjudication, and observing that a juvenile adjudication can be a strike prior, Olay determined section 1385(c) was at least ambiguous and warranted review of legislative history. (Olay, at pp. 66-67.) The court then reviewed the legislative history, which confirmed the Legislature had no intent "to reject the well-established legal meaning of 'enhancement' in such a roundabout manner by obliquely referencing 'juvenile adjudications' as one of the relevant mitigating circumstances." (Id. at p. 67.) We see no need to second guess the holdings in these cases.
As in Olay, defendant points to the mitigating circumstance set out in section 1385(c)(2)(G) and claims this supports his interpretation of the statute. Like the Olay court, we reject defendant's construction.
Contrary to defendant's suggestion, Ortiz, supra, 87 Cal.App.5th 1087, provides no authoritative basis for holding that "section 1385 includes the authority to dismiss allegations of prior strikes in the furtherance of justice." Though Ortiz applied section 1385(c) to a strike prior, it merely assumed for purposes of the appeal that "the trial court was correct in its threshold determination that section 1385(c) applied at all." (Ortiz, at p. 1095.)
Defendant also relies on People v. Brookfield (2009) 47 Cal.4th 583 (Brookfield) and People v. Fuentes (2016) 1 Cal.5th 218 (Fuentes) for the proposition that alternative sentencing schemes may be considered "enhancements" under section 1385(c). Contending the Legislature must have been aware of Brookfield and Fuentes, defendant concludes the word "enhancement" in section 1385(c) must be construed as including strike priors. We have reviewed these cases, and they provide no support for the notion that the alternative sentencing provisions of the Three Strikes law are "enhancements."
In Brookfield, supra, 47 Cal.4th 583, the parties disputed whether the term "enhancement" in section 12022.53, subdivision (e)(2) ("12022.53(e)(2)") encompassed the life term provided by section 186.22(b)(4). (Brookfield, at pp. 591-592.) Section 12022.53(e)(2) provided:" 'An enhancement for participation in a criminal street gang . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense.'" (Brookfield, at p. 591, italics added.) Brookfield noted numerous prior decisions that distinguished between enhancements- meaning additional terms of imprisonment-and the penalty provision in section 186.22, but concluded that section 12022.53 encompassed both enhancements and penalty provisions in section 186.22 because the Legislature had enacted section 12022.53 before all of those decisions; in Brookfield's view, it was not reasonable to infer the Legislature was aware of them. (Id. at pp. 592-593.) In light of this specific history, Brookfield concluded "the Legislature's use of the term 'enhancement' in section 12022.53(e)(2) was intended to refer broadly to any greater term of imprisonment for a crime that . . . is committed to benefit a criminal street gang."
Here, defendant fails to point to any comparable history regarding the Three Strikes law and section 1385(c). Perhaps more to the point, by the time section 1385(c) was enacted, case law had clearly established that the Three Strikes law was an alternative sentencing scheme, not an enhancement. (See, e.g., Romero, supra, 13 Cal.4th at p. 527.) Defendant's reliance on Fuentes, supra, 1 Cal.5th 218, which also involved a gang-related enhancement under section 186.22, fares no better.
We reject the claim of error.
D. Section 654
By way of background, "Assembly Bill 518 amended section 654, subdivision (a), to provide in relevant part: 'An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.' (Stats. 2021, ch. 441, § 1.) Previously, under section 654, 'the sentencing court was required to impose the sentence that "provides for the longest potential term of imprisonment" and stay execution of the other term. [Citation.] .... [S]ection 654 now provides the trial court with discretion to impose and execute the sentence of either term, which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence.'" (People v. Jones (2022) 79 Cal.App.5th 37, 45.)
Defendant contends the trial court's decision under section 654 to impose the sentence for the attempted murder count as the principal term and stay the sentence on the aggravated assault count, was a sentencing choice for which the court was required to provide a statement of reasons pursuant to rule 4.406. He argues the court failed to adequately state reasons for this sentencing choice.
Assuming that the court was required to provide reasons for this sentencing decision (cf. People v. Corpening (2016) 2 Cal.5th 307, 316, fn. 6), even defendant acknowledges the court explained its sentencing decision as follows: "With regard to Count 1 and Count 3, the Court is invited to make Count 3 the principal term or to give the low term on Count 1; the Court is going to leave Count 1 and Count 3 undisturbed with regard to the [section] 654 prohibition on punishment for the same conduct. Count 1 has the added element of the intent to kill and that was evidenced very clearly . . . and it's significant and it is in his behavior as compared to Count 3, so the Court is going to leave that untouched." At the resentencing hearing, defense counsel did not object to the court's stated reasons. Because "complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal" (People v. Scott (1994) 9 Cal.4th 331, 356), review of the claimed inadequacy of the court's stated reasons has been forfeited.
Defendant takes issue with application of the rule in Scott, suggesting it does not apply here because the trial court had not provided an "indicated ruling." We cannot agree. "[T]he Scott rule applies when the trial court 'clearly apprise[s]' the parties 'of the sentence the court intends to impose and the reasons that support any discretionary choices' [citation], and gives the parties a chance to seek 'clarification or change' [citation] by objecting to errors in the sentence. The parties are given an adequate opportunity to seek . . . clarifications or changes if, at any time during the sentencing hearing, the trial court describes the sentence it intends to impose and the reasons for the sentence, and the court thereafter considers the objections of the parties before the actual sentencing." (People v. Gonzalez (2003) 31 Cal.4th 745, 752.) "It is only if the trial court fails to give the parties any meaningful opportunity to object that the Scott rule becomes inapplicable." (Ibid, italics added.)
Case law is illustrative. In People v. Boyce (2014) 59 Cal.4th 672, for example, the high court applied the Scott rule where the trial court received counsels' arguments, pronounced sentence, entertained a prosecution request for clarification about the certification of the record and allowed defense counsel to object to the probation report, then adjourned after asking if there was anything else to discuss. (Boyce, at p. 731.) In People v. Sperling (2017) 12 Cal.App.5th 1094, the Scott rule was held to apply where, "[a]fter pronouncing sentence, the court asked, 'Is there any other record either of you would like me to make?'" and the prosecutor replied in the negative while defendant's counsel remained silent. (Sperling, at pp. 1101-1102.)
Here, the trial court explained it would not modify the sentence very much, aside from reducing it as directed by the prior appellate opinion. Thereafter the court set out the sentence, providing reasons along the way. After doing so, the court asked defendant if he understood the sentence, and if he had any questions. Defendant appeared to respond that he understood and posed no questions. The court then advised defendant he would be subject to release on parole, advised him of the right to appeal, and wished him luck. At no point during any of this colloquy did defendant or defense counsel interpose an objection or ask for clarification as to the court's reasons for any particular sentencing decision. Nor is there is any apparent reason why they could not have done so. Though defendant believes he did not need to object or ask for clarification, the case law above holds to the contrary.
Defendant also contests application of the Scott rule on the ground that, here, unlike the situation in Scott, his counsel filed a sentencing memorandum. But defendant's opening brief makes reasonably clear his complaint is that the court's statement of reasons for its resentencing decision was inadequate. Because the court deliberated and then announced its reasons for maintaining essentially the same sentence at the resentencing hearing, the claimed inadequacy of the court's stated reasons was not an issue that counsel's pre-hearing sentencing memorandum raised or preserved. Pursuant to Scott, defendant's failure at the hearing either to object to the perceived inadequacy of the court's statement of reasons or to request clarification of the stated reasons forfeits review of the issue on appeal.
Finally, defendant argues we should not find his claim forfeited because this case is akin to People v. Sherrick (1993) 19 Cal.App.4th 657. But this case bears no resemblance to Sherrick, where the Court of Appeal rejected the People's argument that the defendant's waiver of his right to appeal as part of his plea bargain foreclosed the appeal of a sentencing error. (Sherrick, at pp. 658-659.) The holding there-which rested on the general principle that waivers of the right of appeal entered during a plea do not extend to errors occurring after the waiver is entered (id. at p. 659)-has no application here.
In sum, we reject defendant's claim of error.
F. Ineffective Assistance of Counsel
Last, defendant claims he suffered from ineffective assistance of counsel during the resentencing proceedings because it is apparent from the record that his attorney performed perfunctorily and failed to conduct any investigation regarding defendant's history of abuse, mental illness, substance abuse, or post-sentencing conduct.
To establish ineffective assistance, a "defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (People v. Mai (2013) 57 Cal.4th 986, 1009.) "A defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record. 'If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.'" (People v. Cunningham (2001) 25 Cal.4th 926, 1003.)
Here, the record does not disclose whether or to what extent defense counsel investigated defendant's claimed history of abuse, mental illness, substance abuse, or post-sentencing conduct. What the record does show is that counsel filed a detailed resentencing brief, that counsel presented letters on defendant's behalf concerning the claimed prior abuse, mental illness and post-sentencing conduct, and that counsel's argument during the resentencing hearing included reference to those letters. On this record, defendant fails to establish deficient performance. As this is sufficient to reject the ineffective assistance claim, we need not and do not discuss the prejudice prong of the analysis. (Strickland v. Washington (1984) 466 U.S. 668, 697.)
In his reply brief, defendant claims the record shows defense counsel did not obtain the letters or investigate defendant's alleged childhood abuse because the letters were not attached to the defense's sentencing memorandum and were not filed until the date of the resentencing hearing. We observe, however, that two letters, including the one from defendant's aunt, were written on defense counsel's Public Defender stationery, and that one communication in support of defendant was emailed directly to counsel.
Disposition
The judgment is affirmed.
WE CONCUR: Tucher, P.J. Petrou, J.