Opinion
A167974
10-09-2024
THE PEOPLE, Plaintiff and Respondent, v. JAMES LOUIS BRISKER, IV, Defendant and Appellant.
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 19-NF-004626-A
Petrou, J.
James Louis Brisker IV was sentenced to a total of 27 years and four months in prison after a jury convicted him of five felony offenses related to his robbery of three elderly victims at gunpoint. Brisker argues the trial court committed sentencing errors by failing to understand or properly apply Penal Code section 1170, subdivision (b)(6), and by failing to give appropriate weight to mitigating evidence under section 1385, subdivision (c)(2). We affirm.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On March 31, 2019, Brisker robbed a 67-year-old at gunpoint as she returned home from withdrawing money at an ATM. After Brisker demanded her belongings, she gave him her purse, which contained her phone, keys, ID, credit cards, and Medicare card. Brisker then left in a car that was waiting nearby with a driver and additional passenger inside.
Later that same day, Brisker robbed a couple in their sixties at gunpoint in a parking lot. Brisker put a gun to the woman's head and demanded her purse and money before dragging her from the car and throwing her to the ground. The purse contained a wallet, money, credit cards, driver's license, and phone. Brisker then demanded the man's money and wallet at gunpoint, taking $400 from him before fleeing in a waiting car. An eyewitness took a photo of the getaway car's license plate.
About 20 minutes after the second robbery, police located the suspect vehicle and conducted a traffic stop. Brisker exited the front passenger seat, where a handgun was later discovered. Inside the vehicle, police found the first victim's phone as well as the second female victim's purse, wallet, phone, and other belongings.
Charges and Jury Trial
On February 27, 2023, an amended information was filed charging Brisker with two counts of second degree robbery (§ 212.5, subd. (c); counts 1 & 2), possession of a firearm with a prior violent conviction (§ 29900, subd. (a)(1); count 3), first degree robbery (§ 212.5, subd. (a); count 4), and first degree burglary (§ 460, subd. (a); count 5). The information alleged Brisker personally used a firearm in the commission of all three robberies (§ 12022.53, subd. (b)) and the burglary (§ 12022.5, subd. (a)), and that he had acted in concert for the first degree robbery (§ 213, subd. (a)(1)(a)). The information further alleged Brisker was previously convicted of a serious or violent felony (§§ 667, subds. (b)-(j), 1170.12, subd. (b)) and a prior serious felony (§ 667, subd. (a)(1)). It also alleged nine aggravating circumstances (§ 1170, subd. (b)(2)).
A jury trial took place in March 2023. The jury found Brisker guilty on all counts and found true all the enhancement allegations. In a bifurcated proceeding that same month, the trial court found true the prior conviction allegations and eight of the nine aggravating circumstances.
Sentencing Memoranda
The prosecution filed an amended sentencing memorandum asking the court to sentence Brisker to a total term of 27 years and four months in prison. The total recommended sentence included sentences for all firearm enhancements found true by the jury.
Brisker filed a sentencing memorandum requesting a total sentence of eight years and eight months in prison, which was premised on the court imposing the low term and striking the section 12022.53 firearm enhancements. Brisker urged the court to consider his childhood trauma in connection with its discretion to strike enhancements under section 1385, subdivision (c), as well as in deciding whether to impose the low term under section 1170, subdivision (b)(6). He also moved under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) for the court to dismiss his prior serious and violent strikes.
Brisker attached a report prepared by a social worker detailing his significant childhood trauma, including congenital disabilities, sexual abuse, physical and emotional abuse and neglect, and exposure to drugs, gun violence, and domestic violence. The report stated Brisker experienced chronic depression and anxiety, and that his trauma severely impaired his daily functioning due to his PTSD and being affected by recurring vivid dreams related to the trauma. However, the report did not discuss Brisker's trauma in connection with the instant offense conduct or state the conduct was a result of the trauma.
The report indicated Brisker had been actively engaged in rehabilitation while in custody and expressed a desire to seek help rather than continue to recidivate. The social worker opined Brisker had "a high degree of resilience and a potential for rehabilitation" and would benefit from substance abuse and mental health treatment.
Sentencing Hearing
At the May 26, 2023 sentencing hearing, the court stated it had reviewed the probation report as well as the parties' sentencing memoranda. Brisker reiterated his request for an eight year and eight month sentence, noting his significant childhood trauma. He asked the court to use its discretion under section 1385, which he noted had been "newly amended," to "pa[re] down" the firearm enhancements and craft a sentence that punished him for the offenses but gave him one last chance.
The court acknowledged the social worker's report related to Brisker's childhood, which the court noted was "obviously . . . fraught with unfortunate circumstances and disadvantage." However, the court stated Brisker had already received the chance he was asking for many times. The court continued: "If this were a first offense, maybe a different situation, or if this crime were committed for one of the many reasons that the family sees virtue in Mr. Brisker, which is that he cares about his family, wants to protect his family, things along those lines, but it wasn't. These crimes were committed because he wanted money from these vulnerable victims."
The court denied the Romero motion because the offenses involved serious, brazen robberies at gunpoint of vulnerable, elderly victims; Brisker had a significant criminal history; and he had been released on parole just months before committing the offenses.
The court found numerous aggravating factors: use of force against an elderly victim; victim vulnerability; Brisker's leadership role; crime indicating planning, sophistication, and professionalism; his serious and numerous prior convictions; commission of the offense while on parole; danger to society; and poor prior performance on supervision. It found two mitigating factors: (1) the enhancements could lead to a sentence of over 20 years; and (2) multiple enhancements were alleged. The court stated it was "unclear" whether a third mitigating factor applied for the strike prior being over five years old, but even if all three applied, the court did not "find those three mitigating circumstances outweigh the much, much more significant aggravating" circumstances.
The court then sentenced Brisker to a total term of 27 years and four months in prison. As relevant here, the court chose the midterm for count 1 and the upper terms for counts 2, 3, 4, and 5. Citing California Rules of Court, rule 4.420 and section 1170, subdivision (b), the court explained its decision to impose the upper term as follows:
The total sentence was calculated as follows: 22 years on count 4 (the upper term of six years, doubled to 12 years due to the strike prior, plus an additional 10 years for the section 12022.53 firearm enhancement); a consecutive term of five years and four months on count 1 (one-third the midterm, or one year, doubled to two years for the strike prior, plus three years and four months for the section 12022.53 firearm enhancement); a concurrent term of 20 years on count 2 (the upper term of five years, doubled to 10 years for the strike prior, plus 10 years for the 12022.53 firearm enhancement); a concurrent term of six years for count 3 (the upper term of three years, doubled to six years for the strike prior); and 22 years, stayed under section 654, for count 5 (the upper term of six years, doubled to 12 years for the strike prior, plus 10 years for the section 12022.5 firearm enhancement).
"[A]lthough the Court has the discretion to choose the lower term with respect to the principal offense here and principal sentence, the Court will not do that. The aggravating circumstances outweigh the mitigating circumstances here . . . . I don't find that the alleged trauma in the report was the-was a significant enough contributing factor to these offenses. As I note, you know, if this were a first offense, maybe a different analysis, but given the nature of [Brisker]'s history, I don't find that that applies. . . . I will choose the aggravated term because of the aggravating circumstances that were proven pursuant to 1170(b) and they do justify it."
The court further cited Brisker's failure to take advantage of rehabilitation opportunities during prior grants of probation and incarceration. The court disagreed with the social worker's assessment that Brisker had a high degree and potential for rehabilitation. It hoped Brisker continued to take steps toward rehabilitation but did not feel a lesser sentence was appropriate under the context and with respect to the safety of the community. Rather, the chosen sentence was appropriate punishment for what happened to the victims when considering Brisker's personal history and the nature of the offenses.
After imposing sentence, the court asked if the parties had any further matters to discuss but no objections were raised. Brisker appealed.
DISCUSSION
Brisker argues the trial court erred at sentencing on two bases: (1) in failing to properly apply and understand section 1170, subdivision (b)(6) when deciding not to impose the low term; and (2) in giving improper weight to the factors in section 1385 when declining to strike the firearm enhancements and failing to adequately explain its reasoning for doing so. As we explain below, both claims are unavailing.
Sentencing decisions are reviewed for abuse of discretion. (People v. Hilburn (2023) 93 Cal.App.5th 189, 205.) "Defendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228 (Brown).) Accordingly, when the record shows the court has not exercised its informed discretion, remand is necessary unless "there is a clear indication from the sentencing court that it would be idle to do so." (People v. Salazar (2023) 15 Cal.5th 416, 424 (Salazar).)
Remand is also "unnecessary if the record is silent concerning whether the trial court misunderstood its sentencing discretion." (Brown, supra, 147 Cal.App.4th at p. 1229; see also People v. Davis (1996) 50 Cal.App.4th 168, 172 [a trial court's judgment "is presumed to be correct, error is never presumed, and the appealing party must affirmatively demonstrate error on the face of the record"].) Absent contrary evidence, we presume a trial court was aware of and followed the applicable law. (People v. Ramirez (2021) 10 Cal.5th 983, 1042.)
I. The Record Does Not Show the Trial Court Misapplied or Misinterpreted Section 1170, Subdivision (b)(6) at Sentencing
Brisker contends the trial court misapplied section 1170, subdivision (b)(6) and misunderstood the statute's presumption for a low term sentence when trauma is a contributing factor to the offense. He asserts remand is required for the court to exercise its discretion under the appropriate statutory standards. We disagree.
Although the Attorney General contends Brisker forfeited this claim by failing to object at sentencing, forfeiture is inapplicable in this instance because Brisker "does not challenge the manner in which the trial court exercised its sentencing discretion but rather its apparent misapprehension of statutory sentencing obligations." (People v. Panozo (2021) 59 Cal.App.5th 825, 840.)
As amended effective January 1, 2022, section 1170 creates a presumption for a low term sentence if a defendant can establish, among other factors, that he "experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence," and this trauma "was a contributing factor in the commission of the offense." (§ 1170, subd. (b)(6) & (A); Salazar, supra, 15 Cal.5th at pp. 423, 428-429.) If the defendant makes this "initial showing" (People v. Fredrickson (2023) 90 Cal.App.5th 984, 991-992), the trial court may impose a middle or upper term sentence only if "the aggravating circumstances outweigh the mitigating circumstances [so] that imposition of the lower term would be contrary to the interests of justice" (§ 1170, subd. (b)(6); Salazar, at p. 429).
Here, remand is unnecessary because the record does not affirmatively demonstrate the court misunderstood the provisions of section 1170, subdivision (b)(6) or its discretion under the statute. (See Brown, supra, 147 Cal.App.4th at p. 1229.) Contrary to Brisker's contention, there is no indication the trial court believed the presumption applied only where trauma was the "sole cause of the offense." Rather, the court's finding that the trauma detailed in the social worker's report was not "a significant enough contributing factor to these offenses" to warrant a low term sentence indicates the court was aware of the statutory threshold for applying the presumption but "[did not] find that that applies." Brisker's failure to make the "initial showing" required to trigger the presumption is supported by the record, as the social worker's report contained no analysis directly linking Brisker's trauma to the robberies. (See People v. Fredrickson, supra, 90 Cal.App.5th at pp. 991-992, 994.)
Nor does the record support Brisker's assertion that the court erroneously believed the presumption applies only to first time offenders who had not been given a chance. In context, the court's reference to Brisker's criminal history and having been given many chances underscored its finding that the reason he committed the offenses was "because he wanted money from these vulnerable victims" and not due to his trauma. That the court may have conducted "a different analysis" of his trauma-based argument if he did not have a prior criminal history does not mean the court believed the presumption could apply only if it were his first conviction.
In the absence of any evidence that the court misunderstood its obligations or discretion under section 1170, subdivision (b)(6), we presume the court knew the applicable law and followed it. (People v. Ramirez, supra, 10 Cal.5th at p. 1042.) Accordingly, Brisker's assertion that remand is required on this basis is without merit.
Even assuming, arguendo, the court misunderstood the applicability of the presumption, it would be "idle" to remand for resentencing given the clear indication from the trial court that it would impose the same sentence regardless of the presumption. (See Salazar, supra, 15 Cal.5th at p. 431.) As Brisker concedes, the court "laid out specific reasons for selection of the upper term." The court found the upper term was warranted based on its weighing of the aggravating factors and noted the two or three mitigating circumstances were outweighed by "the much, much more significant aggravating" circumstances. It discussed the nature of the offenses throughout the sentencing hearing, referring to them as "serious and brazen robberies" of elderly victims at gunpoint. The court also expressly found a lesser sentence was not appropriate considering the context of the case, Brisker's track record, and the safety of the community.
On this record, it is clear the trial court would find the "aggravating circumstances outweigh the mitigating circumstances [so] that imposition of the lower term would be contrary to the interests of justice" and elect the same upper term sentence, even if it found the presumption applied. (§ 1170, subd. (b)(6); cf. Salazar, supra, 15 Cal.5th at pp. 427-428 [no clear indication the sentencing court would impose the same midterm sentence where the court notably did not mention the nature of the crime in sentencing determination; referenced several mitigating factors in its ruling; and declined to impose the upper term].)
II. Brisker's Challenge to the Trial Court's Imposition of the Firearm Enhancements Is Forfeited and Without Merit
Brisker argues the court gave improper weight to the evidence he offered regarding his childhood trauma, prior victimization, and PTSD when declining to strike the firearm enhancements under section 1385. He asserts the court's failure to provide reasoning for its section 1385 decision, in contrast to its detailed reasoning for the other sentencing decisions, supports a "strong inference" that the court did not appropriately consider the relevant factors. We are not persuaded.
As an initial matter, Brisker forfeited this claim by failing to object to the trial court's imposition of sentence on this basis. (See People v. Scott (1994) 9 Cal.4th 331, 353, 356 [failure to object to trial court's exercise of sentencing discretion or articulation of its supporting reasons forfeits those claims for purposes of appeal].) Even if not forfeited, however, we would find Brisker's claim unavailing.
Section 1385 "provides that a sentencing court '[i]n exercising its discretion' to dismiss a sentencing enhancement 'shall consider and afford great weight to evidence offered by the defendant to prove' certain enumerated mitigating circumstances,' and '[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.'" (People v. Walker (2024) 16 Cal.5th 1024, 1028 (Walker); § 1385, subd. (c)(2).) Among those mitigating circumstances are where the current offense is "connected to mental illness" or "connected to prior victimization or childhood trauma." (§ 1385, subds. (c)(2)(D) & (E).)
Where an enumerated mitigating circumstance is present, a trial court nonetheless retains its discretion to impose an enhancement based on its consideration of various factors, including the presence of aggravating and mitigating circumstances. (Walker, supra, 16 Cal.5th at p. 1033.) The statute does not create a rebuttable presumption in favor of dismissing an enhancement when an enumerated mitigating circumstance is present. (Id. at p. 1034.) Rather, "a trial court must 'engage[ ] in a holistic balancing with special emphasis on the enumerated mitigating factors,' in which the mitigating factors weigh 'strongly in favor of . . . dismissal.'" (Id. at p. 1036.)
The record does not show the trial court failed to afford proper weight to Bisker's evidence of trauma, prior victimization, or PTSD when declining to strike the firearm enhancements. At sentencing, the court "start[ed] by . . . acknowledging the material submitted by [Brisker] with respect to [his] childhood," and recognized that it was "obviously . . . fraught with unfortunate circumstances and disadvantage." It also noted it was taking Brisker's "personal history" into account when explaining why it agreed with the prosecution's recommended sentence of 27 years and four months-which included the firearm enhancements. The court later explicitly acknowledged "the contents of" the social worker's report but found that evidence did not justify a lesser sentence when taking into consideration, among other factors, the safety of the community.
Hence, contrary to Brisker's contention, the record does not show the court failed to engage in the" 'holistic balancing'" required by section 1385, subdivision (c)(2) when opting to impose the firearm enhancements. (Walker, supra, 16 Cal.5th at p. 1036.) And, although the court did not make express findings specifically tethered to its decision to impose the enhancements, we decline to infer from the silence that the court abused its discretion in doing so. (See Brown, supra, 147 Cal.App.4th at p. 1229 ["Error may not be presumed from a silent record."].) We therefore would find no error on this basis even if the claim were not forfeited.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Tucher, P. J., Fujisaki, J.