Opinion
D076818
02-19-2021
THE PEOPLE, Plaintiff and Respondent, v. KEVIN LEE BRYANT, Defendant and Appellant.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. INF1200501) APPEAL from a judgment of the Superior Court of Riverside County, Alfonso Fernandez, Judge. (Retired Judge of the Santa Clara Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
In 2016, a jury convicted Kevin Lee Bryant of five felony counts, including two counts of premeditated attempted murder (Pen. Code, §§ 187, subd. (a), 664). In bifurcated proceedings, the jury found that Bryant was sane during the commission of the offenses and further found that Bryant had suffered a prior serious felony conviction. (§ 667, subds. (a), (c).) The trial court sentenced Bryant to a total term of 43 years to life imprisonment, which included two consecutive five-year terms for Bryant's prior serious felony offense. (§ 667, subd. (a).)
Statutory references are to the Penal Code unless otherwise stated.
In Bryant's prior appeal, we reversed the judgment and remanded with directions for the trial court to resentence Bryant so that the court could consider its newly-enacted discretion to strike Bryant's prior serious felony enhancement. (See People v. Garcia (2018) 28 Cal.App.5th 961, 971-973 (Garcia) [Sen. Bill No. 1393, which removed the statutory prohibition on striking a five-year prior serious felony enhancement under §§ 667, subd. (a) and 1385, should be given retroactive effect to all cases not yet final on appeal].) At resentencing, the trial court declined to exercise its discretion to strike Bryant's prior serious felony enhancement and imposed the same sentence.
At Bryant's request, we take judicial notice of his prior appeal (People v. Bryant (Jan. 9, 2019, D074040) [nonpub. opn.]), and the documents in that appellate record, including the confidential clerk's transcript. (Evid. Code, §§ 452, subd. (d), 459.)
Bryant now contends (1) the trial court abused its discretion in declining to strike the prior serious felony enhancement and (2) counsel rendered deficient performance by failing to request a supplemental probation report or otherwise present evidence regarding Bryant's mental health condition. We reject Bryant's contentions and affirm the judgment.
FACTS
A. Offense
We restate the facts of the offense as summarized in Bryant's prior appeal:
"The victim worked as a caregiver at a small group home for high-functioning mentally-disabled adults in Desert Hot Springs, California. She lived in a room at the home with Bryant, whom she had married approximately three months before the offenses. Their room had an adjoining bathroom.
"On March 19, 2012, Bryant arrived back at the home and rang the bell. The victim went to open the door, but she heard someone else do it. Bryant confronted the victim and asked her why she did not open the door for him. The victim explained that someone had already opened it. Bryant responded by slapping her. When the victim started crying, Bryant told her to stop or he would kill her. The victim continued to cry, so Bryant started choking her. She could not breathe and eventually lost consciousness.
"When she awoke, Bryant turned to her and asked, 'You are still alive?' He started to choke her again, but someone knocked on their door. Bryant stopped, opened the door, and briefly talked with the person. In an effort to get away, the victim asked to go to the bathroom. After initially resisting, Bryant allowed the victim to sit on the toilet while he watched. After a few minutes, Bryant became impatient and told the victim to hurry up or he would kill her. The phone rang, which Bryant answered and hung up, and then Bryant began choking the victim again.
"The phone rang again, and the victim was able to answer it. It was a friend of the victim. The victim told her friend to come over under the pretext of fixing her phone. The victim told Bryant she needed to give one of the residents his clothes. After some back-and-forth, Bryant allowed the victim to go help the resident retrieve his clothes from the home's garage. The victim went to the resident's room, asked him to follow her, and went with the resident to the garage. Bryant followed them the whole time.
"The victim opened the garage and let the resident retrieve his clothes. After the resident left, Bryant tried to convince the victim to go back to their room. When the victim refused, Bryant picked her up and carried her into the garage. He began to choke her again, but then he picked up a large black rock. Bryant told the victim, 'It's okay, baby. It is almost over.' He set the rock down and continued to choke her. The victim could not breathe, and her body went numb. Her hands and feet started shaking, and she lost consciousness.
"At that point, a car honked its horn outside. The victim regained consciousness and ran toward the door of the garage. The victim was able to go outside and meet a delivery person. She told the delivery person about the assault and asked him to drive her away. He said he was busy and refused. But he did call the administrator of the group home. The victim waited in the driveway of the home, with Bryant by her side. Eventually the victim's friend arrived, as did the administrator and owner of the home. They noticed the victim's injuries and called police." (People v. Bryant (Jan. 9, 2019, D074040) [nonpub. opn.].)
B. Conviction and Prior Appeal
A jury convicted Bryant of two counts of premeditated attempted murder (§§ 187, subd. (a), 664) and one count each of assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)), corporal injury to a spouse (§ 273.5, subd. (a)), and false imprisonment by violence or menace (§ 236). As to certain offenses, the jury found that Bryant personally inflicted great bodily injury on the victim under circumstances of domestic violence. (§ 12022.7, subd. (e).) In bifurcated proceedings, the jury found that Bryant was sane during the commission of the offenses. It also found that he had suffered a prior serious felony conviction. (§ 667, subds. (a), (c).)
In December 2016, the trial court sentenced Bryant to a total term of 43 years to life imprisonment, which included a ten-year sentence enhancement for Bryant's prior serious felony offense (two consecutive terms of five years, one applicable to each count of premeditated attempted murder). (§ 667, subd. (a); People v. Williams (2004) 34 Cal.4th 397, 404-405 [five-year prior serious felony enhancement applies to "each count of third strike sentence"].) Bryant appealed.
A probation officer's report was prepared in anticipation of sentencing and filed in the trial court on December 8, 2016. The victim (Bryant's wife) reported that the defendant had a history of mental health illness and schizophrenia. In addition, the record in Bryant's underlying appeal included a number of evaluations and opinions regarding Bryant's mental health and the impact of his condition and medications on the acts that resulted in the charges and convictions at issue.
While Bryant's appeal was pending, the Legislature enacted Senate Bill No. 1393, which removed the statutory prohibition on striking a five-year prior serious felony enhancement under sections 667, subdivision (a) and 1385. (Stats. 2018, ch. 1013, §§ 1-2.) It became effective on January 1, 2019, before Bryant's appeal became final. (See Cal. Const., art. IV, § 8, subd. (c)(1); Gov. Code, § 9600, subd. (a).)
As previously indicated, in Bryant's prior appeal, we reversed the judgment and remanded with directions to resentence Bryant so that the trial court could consider its newly-enacted discretion to strike Bryant's prior serious felony enhancement. (See Garcia, supra, 28 Cal.App.5th at pp. 971-973 [Sen. Bill No. 1393 should be given retroactive effect to all cases not yet final on appeal].)
C. Resentencing Hearing
Bryant appeared for a resentencing hearing in October 2019. His counsel urged the trial court to consider exercising its discretion to strike the enhancement. Counsel reminded the court that Bryant struggled with mental illness and informed the court Bryant was "trying to work through" his mental illness while in state prison by accepting medication and undergoing counseling. Counsel argued that striking the enhancement was warranted to reward Bryant for his attempts to address his mental health issues, which caused or contributed to his criminal behavior.
The court stated it "recalled the facts of the case," and listed some of the factors it considered for purposes of resentencing: the crime involved great violence, a high degree of cruelty, viciousness or callousness (Cal. Rules of Court, rule 4.421(a)(1)), and the defendant had engaged in violent conduct indicating he was a serious danger to society (id., rule 4.421(b)(1)). The trial court declined to change the sentence "even now after I've exercised my discretion."
Bryant addressed the court. He explained that he never previously understood he had a mental illness, but that in prison, he was able to talk with a therapist and participate in programs that educated him regarding his mental health. He stated that "a lot of [his] hallucinations that had to do with [the victim] had to do with hallucinations of [him] thinking she was being influenced to try to harm [him] . . . ." He stated he also had a learning disability and abnormal thought process. He stated he was "not trying to place blame on anybody else except [himself]," he was happy he did not kill the victim, and he "wasn't trying to kill her." He stated he was "more aware of having a mental illness now."
The trial court stated it was "glad" Bryant was seeking help with his mental health issues and hoped Bryant would continue that. The court stated that it was "good" for Bryant to "recognize that there's an issue and . . . seek treatment for that." However, the court emphasized, "[i]t doesn't change my decision in any way."
DISCUSSION
I.
Exercise of Discretion on Resentencing
"We review a court's decision to deny a motion to strike a five-year prior serious felony enhancement for an abuse of discretion." (People v. Shaw (2020) 56 Cal.App.5th 582, 587 (Shaw) [addressing sentencing following enactment of Sen. Bill No. 1393]; see People v. Carmony (2004) 33 Cal.4th 367, 373 (Carmony) [" '[a] court's discretionary decision to dismiss or to strike a sentencing allegation under section 1385 is' reviewable for abuse of discretion"].) "In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' [Citations.] Second, a ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " ' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Carmony, at pp. 376-377.)
Bryant argues, and we agree, it was within the court's discretion to order a supplemental probation report on remand for resentencing. (See People v. Murray (2012) 203 Cal.App.4th 277, 289 [where defendant was ineligible for probation, "no supplemental probation report was required," but rather "it was within the trial court's discretion whether to order one"], disapproved on another ground in People v. Gutierrez (2014) 58 Cal.4th 1354, 1370-1371; People v. Johnson (1999) 70 Cal.App.4th 1429, 1432 (Johnson) [probation report is advisory only, and is merely discretionary when defendant is ineligible for probation].) Bryant argues the trial court abused its discretion in resentencing him without obtaining a supplemental probation report and argues another resentencing is warranted for the trial court to consider the sentencing objectives of California Rules of Court, rule 4.410(a) and "all the facts concerning the defendant and the crime," including "defendant's criminal history and . . . the reasons the history occurred." (See People v. Williams (1998) 17 Cal.4th 148, 161 (Williams) [in determining whether to strike a defendant's prior serious or violent felony, the trial court must consider "the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects"].) More specifically, Bryant contends "the trial court failed to give adequate weight to his individual circumstances as of the time of resentencing, in particular his post[-]conviction progress, treatment, and prognosis regarding his mental health issues." We disagree.
California Rules of Court, rule 4.410(a) provides that the general objectives of sentencing include protecting society, punishing the defendant, encouraging the defendant to lead a law-abiding life in the future and deterring him from future offenses, deterring others from criminal conduct by demonstrating its consequences, preventing the defendant from committing new crimes by isolating him for the period of incarceration, securing restitution for crime victims, achieving uniformity in sentencing, and increasing public safety by reducing recidivism through community-based corrections programs and evidence-based practices. Rule 4.423(b)(2) identifies as a circumstance in mitigation the factor that defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime.
"The trial court's mere failure to mention expressly all evidence presented in mitigation . . . does not mean the trial court ignored or overlooked such evidence, but simply indicates that the court did not consider such evidence to have appreciable mitigating weight." (People v. Samayoa (1997) 15 Cal.4th 795, 860; see People v. Tully (2012) 54 Cal.4th 952, 1064 [absent indication trial court ignored or overlooked evidence on sentencing, reviewing court will not find error].) The trial court here identified two aggravating circumstances, indicating the trial court was indeed considering the "nature and circumstances of [Bryant's] present felonies." (Williams, supra, 17 Cal.4th at p. 161.) The record confirms the trial court also considered Bryant's "background, character, and prospects" (ibid.), including Bryant's mental health. Bryant's sanity was at issue in the underlying trial (in which the jury determined Bryant was sane during the commission of the offenses), and the statements of Bryant and his counsel at the resentencing hearing focused the court's attention on Bryant's mental health. The court commended Bryant for recognizing his mental health condition and seeking treatment. Yet the court indicated it was not persuaded to exercise its discretion to modify the prior sentence. The trial court's decision is not "so irrational or arbitrary that no reasonable person could agree with it." (Carmony, supra, 33 Cal.4th at p. 377; see People v. Leavel (2012) 203 Cal.App.4th 823, 837 ["The burden is on the party challenging the sentence to clearly show the sentence was irrational or arbitrary."].) As the reviewing court, we do not substitute our judgment for the trial court's. (Carmony, at p. 377; Leavel, at p. 837.) "No error occurs if the trial court," as in this case, "evaluates all relevant circumstances to ensure that the punishment fits the offense and the offender." (Shaw, supra, 56 Cal.App.5th at p. 587.) And "[n]othing in the record suggests the trial court incorrectly believed it could not order a supplemental report if it wanted to do so." (People v. Franco (2014) 232 Cal.App.4th 831, 835, fn. 22 (Franco).) In sum, Bryant has not established the trial court abused its discretion when it resentenced him.
In his reply brief, Bryant contends he is not asking this court to substitute its judgment for the trial court, but rather "is requesting remand" so the trial court can "exercise its discretion in an informed manner." But Bryant has not demonstrated that the trial court misunderstood the scope of its discretion or acted in an uninformed manner. The cases cited by Bryant are therefore inapposite (see People v. Strunk (1995) 31 Cal.App.4th 265, 275 [sentencing judge, who had not sat through the trial, and "only reviewed the probation report which did not list at least three of the mitigating factors claimed by [defendant] in the trial record," did not "exercise[] its required independent sentencing discretion"]); unhelpful to his position (see People v. Nevill (1985) 167 Cal.App.3d 198, 202-203 [trial court did not abuse its discretion in determining aggravating factors upon which it relied at resentencing sufficiently outweighed mitigation circumstances, even if the trial court previously explicitly rejected a factor in aggravation at the first sentencing]; People v. Podesto (1976) 62 Cal.App.3d 708, 724 ["While the sentence in this case was extremely severe we cannot hold it to have been an abuse of discretion."]); or merely recite general sentencing principles (see People v. Green (1982) 142 Cal.App.3d 207, 216; People v. Keogh (1975) 46 Cal.App.3d 919, 934.) Bryant disagrees with how the court exercised its discretion—contending the court failed to give "adequate weight to Bryant's mental health issues," which "should have been considered as a mitigating factor"—but this is merely the type of reweighing of the evidence that this court is precluded from engaging in under the abuse of discretion standard of review.
Even assuming the trial court abused its discretion in not obtaining a supplemental probation report for the resentencing hearing, any error was harmless. (See People v. Dobbins (2005) 127 Cal.App.4th 176, 182 [error in failing to obtain a required supplemental probation report is reviewed under the standard in People v. Watson (1956) 46 Cal.2d 818]; see also Watson, at p. 836 [error is reversable if there is a reasonable probability that a result more favorable to defendant would have been reached in absence of error].) This was not a situation where the trial court refused to consider the defendant's current circumstances or postjudgment conduct when exercising its discretion to strike the five-year sentence enhancement. (Cf. People v. Yanaga (2020) 58 Cal.App.5th 619, 621-622 [court erred in failing to recognize its discretion to consider defendant's postjudgment rehabilitative efforts in prison, in evaluating whether to strike firearm enhancement upon resentencing].) Bryant's mental health was brought to the court's attention both in the prior proceedings and during resentencing. Bryant has not identified what additional evidence he contends should have been considered by the court, or how it would have impacted his sentence. A conclusory assertion that "a supplemental report would have been valuable" is not sufficient. Bryant did not meet his burden of showing a reasonable probability that, in the absence of the asserted error, he would have obtained a more favorable result. (Dobbins, at p. 182.)
II.
Ineffective Assistance of Counsel
Bryant contends his counsel failed to request a supplemental probation report and present additional evidence regarding Bryant's mental health. (See Franco, supra, 232 Cal.App.4th at p. 834 [where "a defendant is ineligible for probation," the failure to request a supplemental probation report results "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"]; accord, Johnson, supra, 70 Cal.App.4th at pp. 1431-1433].) He contends these failures constitute deficient performance that caused him prejudicial harm. (Strickland v. Washington (1984) 466 U.S. 668 (Strickland).)
"A criminal defendant is guaranteed the right to the assistance of counsel by the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution." (People v. Doolin (2009) 45 Cal.4th 390, 417.) This right extends to "all critical stages of a criminal prosecution, including sentencing." (Id. at p. 453.)
In assessing claims of ineffective assistance of counsel, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and if there is a reasonable probability that, but for counsel's failing, the result would have been more favorable to the defendant. (Strickland, supra, 466 U.S. at pp. 687-688, 693-694.) "A reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." (People v. Carter (2003) 30 Cal.4th 1166, 1211, citing Strickland, at p. 687.)
Bryant has not established that counsel's performance fell below an objective standard of reasonableness. He has not shown that counsel's choice to not submit further evidence or request a supplemental report was not strategic. (See Johnson, supra, 70 Cal.App.4th at p. 1433 ["There are cases where the defendant may not want a supplemental report."].) Bryant's counsel could have reasonably concluded that the trial court would not strike the serious felony prior enhancement even if more detailed evidence regarding Bryant's mental health and treatment efforts were submitted.
Bryant's claim of ineffective assistance also fails because he has not established prejudice. He contends counsel should have provided additional evidence to the court or requested a supplemental probation report, but he fails to indicate what additional evidence or information a supplemental report would contain or how it was reasonably probable that the additional evidence would change the outcome at sentencing. At the resentencing hearing, Bryant's counsel urged the court to strike the sentencing enhancement, reminded the court that Bryant struggled with mental illness, and informed the court that Bryant was "trying to work through" his mental illness in prison by accepting medication and undergoing counseling. Counsel argued that striking the enhancement was warranted to reward Bryant for his efforts to address his mental illness, which contributed to Bryant's criminal behavior. Bryant addressed the court himself, explaining that he did not previously understand he had a mental illness but that he was now working with a therapist and participating in programs to improve his mental health. He stated he was "more aware of having a mental illness now." He also mentioned his learning disability and abnormal thought process and discussed how his mental illness contributed to his criminality. The trial court acknowledged Bryant's efforts to understand and seek treatment for his mental health but emphasized that this information did not change its sentencing decision not to strike the prior felony enhancement. On this record, where the trial court acknowledged and commended Bryant's efforts to understand and treat his mental health condition, there is no indication the court would have exercised its discretion more favorably to Bryant if counsel had provided additional evidence.
In sum, Bryant has failed to demonstrate any reasonable probability that, had counsel presented additional evidence or requested a supplemental probation report, Bryant would have obtained a more favorable result. (Strickland, supra, 466 U.S. at p. 694.) His claim of ineffective assistance of counsel therefore lacks merit.
DISPOSITION
The judgment is affirmed.
GUERRERO, J. WE CONCUR: McCONNELL, P. J. AARON, J.