Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. Nos. SCR 31585 & SCR 32982
McGuiness, P.J.
In a previous appeal, we affirmed appellant Mark Delroy Daley’s conviction of multiple felony offenses for supplying methamphetamine to minor teenage girls and arranging for them to engage in prostitution, but we reversed the sentence and remanded to the trial court for resentencing. Appellant now challenges the sentence imposed on remand, contending the trial court failed to consider a compelling mitigating circumstance—his mental illness and drug addiction at the time of his crimes—and abused its discretion in sentencing him to the upper term of nine years on the principal count. We conclude the trial court acted within its discretion and appellant has not shown that it failed to consider all relevant factors. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
After a bench trial, appellant was convicted on nine felony counts for supplying methamphetamine to three 14-year old girls and arranging for them to engage in prostitution. These offenses include: one count of child endangerment (Pen. Code, § 273a, subd. (a)), two counts of furnishing methamphetamine to a minor (Health & Saf. Code, § 11353), two counts of procuring a minor for prostitution (Pen. Code, § 266i, subd. (a)(5)), one count of procuring a person for prostitution (Pen. Code, § 266i, subd. (a)(1)), three counts of procuring a child under 16 to perform a lewd and lascivious act (Pen. Code, § 266j), and one count of possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)). In April 2005, the trial court sentenced him to an aggregate term of 19 years for these offenses and imposed an additional 8 months for violating his probation on a February 2003 drug conviction. On appeal, we affirmed the conviction, but remanded the cause for resentencing under Cunningham v. California (2007) 549 U.S. 270 (Cunningham), concluding that the trial court’s sentence violated appellant’s federal constitutional rights, as it was based on aggravating factors that had not been found true beyond a reasonable doubt. (See Daley I, supra, A109917, pp. 5-7 (Daley I).)
The underlying facts are set out fully in the court’s prior opinion in this case and need not be repeated here. (See People v. Daley (Mar. 13, 2007 A109917) [nonpub. opn.] (Daley I).)
In May 2007, before our decision in Daley I was final, the trial court conducted a new sentencing hearing and imposed the same sentence. (See People v. Daley (Aug. 20, 2007, A117859) [nonpub. opn.], p. 1 (Daley II).) On appeal, we summarily reversed the new judgment, as we concluded that the trial court lacked jurisdiction to resentence appellant before remittitur had issued and, accordingly, that its new sentence was null and void. (See id. at pp. 2-3.)We remanded the cause for a new sentencing hearing in accordance with our prior opinion and recent Supreme Court authority, including People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825. (See Daley II, supra, A117859, p. 3).)
The trial court ordered a supplemental probation report (Cal. Rules of Court, rule 4.411(c)) and held a new sentencing hearing in June 2008. Urging the trial court to impose the middle term (six years) on the principal count, appellant asserted his mental illness and his drug addiction as mitigating factors and submitted documentary evidence that at the time of his crimes he suffered from a delusional disorder that later resulted in commitment to a state hospital and treatment with anti-psychotic medication. He emphasized that his mental illness had rendered him incompetent to stand trial twice during the proceedings and that he had started taking anti-depressants shortly after he began his prison term. Appellant also pointed out that his prior offenses were mostly drug-related and that he did not have a violent record.
The trial court once again sentenced appellant to an aggregate term of 19 years 8 months, imposing the upper term of nine years on count two, the principal term. (See Health & Saf. Code, § 11353 [provision of methamphetamine to a minor].) The trial court identified as aggravating factors appellant’s probation status at the time of the offenses and his two prior felony convictions, which it described as “numerous.” The aggregate term includes subordinate terms of two years (one-third of the middle term) for counts 3, 5, 6, 7 and 8, and the probation violation, to be served consecutively. In addition, the trial court sentenced appellant to the middle term on counts 1, 4 and 9, but stayed the sentence on each count (Pen. Code, § 654).
Appellant filed a timely appeal from the new judgment.
DISCUSSION
I. Appellant’s Contentions and Evidence in Mitigation.
Appellant contends that the trial court erred in imposing the upper term on the principal count. (See Health & Saf. Code, § 11353.) His primary contention on appeal is that imposition of the upper term was unreasonable in light of his mental state at the time of his crimes and did not reflect a rational weighing of the relevant factors by the trial court. He claims that at the time of his offenses, he was “suffer[ing] actively from both mental illness and substance abuse.” Evidence appellant submitted at the resentencing hearing shows that in May 2003, a court-appointed psychologist (Dr. Cushing) interviewed him and reached a diagnosis of Delusional Disorder, Persecutory Type, grounded in his belief that his co-defendant and his ex-wife’s family were engaged in an ongoing conspiracy against him that included the police, the district attorney’s office, and his prior court-appointed attorneys. Noting that appellant had acknowledged an addiction to “ ‘speed and coke,’ ” Dr. Cushing also opined that “his reported drug history suggests the additional diagnosis of Amphetamine Abuse/Dependence.” Dr. Cushing observed that, appellant was otherwise “reasonably lucid and clear-headed,” understood the charges against him, and “evidenced no additional signs or symptoms of a major mental disorder.” Nonetheless, as his delusional beliefs directly impacted his ability to participate in a rational manner in his own defense, appellant was deemed incompetent to stand trial. He was committed to a state hospital for treatment and competency restoration, and was declared mentally competent in January 2004. A few months later, he was again deemed incompetent to stand trial and returned to the state hospital. In late 2004, he was again found competent to stand trial.
Appellant also alludes to the trial court’s use of “invalid” and “improper” factors, asserting broadly that the trial court “misapplied the fact of ‘prior felonies.’ ” He fails to develop this argument, and merely notes that the trial court relied on different aggravating factors in resentencing him. However, he cites no authority demonstrating that this constitutes error and clearly concedes in his reply brief that at resentencing, a trial court may rely on factors not previously cited.
II. The Trial Court Acted Within Its Discretion in Selecting the Upper Term.
We review the trial court’s sentencing decision for abuse of discretion. (People v. Sandoval, supra, 41 Cal.4th at p. 847.) The trial court is afforded broad discretion in imposing a sentence within a statutory range. (Id. at p. 844;see Pen. Code, § 1170, subd. (b) [“[w]hen... the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court”].) Nonetheless, this discretion may not be exercised in an arbitrary and capricious manner and must be grounded in reasoned judgment and guided by relevant legal principles and policies. (People v. Russel (1968) 69 Cal.2d 187, 195; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978; accord People v. Sandoval, supra, at p. 847.) Indeed, its scope is defined by the legal principles applicable to the trial court’s decision. (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297; accord People v. Jacobs (2007) 156 Cal.App.4th 728, 737.) We presume the trial court has acted to achieve legitimate sentencing objectives and will reverse only if its decision is irrational or arbitrary. (People v. Carmony (2004) 33 Cal.4th 367, 376.) The burden to make this showing lies with the appellant. (Ibid.)
When determining the appropriate sentence to impose, the trial court “shall select the term, which, in the court’s discretion, best serves the interests of justice.” (See Pen. Code, § 1170, subd. (b).) The principles governing the trial court’s decision are set out in the sentencing rules, which identify the relevant criteria that the trial court must consider in exercising its discretion in this regard. (Pen. Code, § 1170, subd. (a)(3); see Cal. Rules of Court, rule 4.409.) The trial court “may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision.” (Cal. Rules of Court, rule 4.420(b).)
When appellant was originally sentenced, section 1170 required the trial court to impose the middle term unless it found circumstances in aggravation or mitigation of the crime. (See former Penal Code section 1170, subd. (b).) The Legislature amended this and other sentencing provisions in March 2007 in response to the Cunningham opinion, which declared California’s determinate sentencing law (DSL) unconstitutional because it assigned the trial court, not the jury, the authority to find facts that qualified a defendant for the upper term. (People v. Sandoval, supra, 41 Cal.4th at pp. 831-832, 836, discussing Cunningham, supra, 549 U.S. 270; see Stats. 2007, ch. 3, § 1). After a sentence is reversed under Cunningham, resentencing proceedings are conducted under the 2007 DSL amendments and the Judicial Council’s corresponding changes to the Rules of Court, even if the offense was committed before they took effect. (People v. Sandoval, supra, 41 Cal.4th at pp. 846, 857.)
Appellant asserts that “[a] rational weighing of the full range of applicable factors does not reasonably call for imposition of the upper term.” In selecting the appropriate term, the trial court relied on two aggravating factors identified in the California Rules of Court. (See Cal. Rules of Court, rule 4.421(b)(2) [defendant’s numerous prior convictions] & (b)(4) [defendant’s status as a probationer at the time of the crime].) A single factor in aggravation is sufficient to justify a sentencing choice. (People v. Quintanilla (2009) 170 Cal.App.4th 406, 413.) Recidivism is “a traditional, if not the most traditional, basis for... increasing an offender’s sentence.” (People v. Towne (2008) 44 Cal.4th 63, 75.)
Appellant does not challenge the truth of the aggravating factors on which the trial court relied and does not dispute that they constitute aggravating factors.
Still, appellant maintains that imposition of the upper term was not reasonable because his mental condition was “a substantial impediment that lessened his degree of culpability” and that the trial court’s failure to address his mental state in its reasoning was not a fair exercise of discretion. (See California Rules of Court, rule 4.423(b)(2).) Even if a mitigating circumstance unquestionably exists, however, the weight or significance the trial court assigns to it, if any, is discretionary; the trial court is free to disregard it altogether and need not state specifically why it did so. (See People v. Lai (2006) 138 Cal.App.4th 1227, 1258, citing People v. Salazar (1983) 144 Cal.App.3d 799, 813.)
Indeed, the trial court need not cite the facts that support its decision, and must only set forth its reasons for the term selected, “stat[ing] in simple language the primary factor or factors that support the exercise of discretion.” (Pen. Code, § 1170, subd. (b); Cal. Rules of Court, rule 4.406(a); People v. Sandoval, supra, 41 Cal.4th at p. 846-847.) In any case, appellant did not object below to the trial court’s reasons and has waived any error in this regard. (See People v. Tillman (2000) 22 Cal.4th 300, 302-303, citing People v. Scott (1994) 9 Cal.4th 331, 353 [waiver doctrine “ ‘should apply to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices’ ”].)
We do not deem it unreasonable, for the trial court to impose the upper term notwithstanding appellant’s assertion that his mental state was “substantially compromised... at the time of his criminal activity.” A defendant’s mental or physical condition at the time of the crime may be a mitigating factor to the extent it significantly reduces his culpability. (Cal. Rules of Court, rule 4.423(b)(2).) Appellant focuses almost exclusively on his mental condition, however, and touches only briefly on its connection to his own culpability, asserting broadly that it “substantially pervaded [his] criminality.” He stresses the seriousness of his mental illness, including his paranoid, delusional thinking and difficulty focusing at trial. He also notes that he was twice found incompetent to stand trial and committed to a state hospital Such assertions may demonstrate the effect of his mental state on his ability to participate in his own defense, but do not suggest that it rendered him any less culpable for the crime at issue, namely, providing methamphetamine to a minor. Indeed, the delusional beliefs he notes as examples of his mental illness relate to a conspiracy and its alleged connection to his sex crimes. He fails to identify any role his paranoid delusions played in his drug offense.
We consider only the impact of this potential mitigating factor on appellant’s culpability under count two, the term at issue. (See People v. Fernandez (1990) 226 Cal.App.3d 669, 679 [error for the trial court to rely on aggravating factor in imposing sentence for one count when the factor was potentially applicable only to another count].)
Likewise, drug addiction is not, in itself, a mitigating factor; it may constitute a “mental or physical condition” (Cal. Rules of Court, rule 4.423(b)(2)), but is considered in mitigation only if it significantly reduces the defendant’s culpability or partially excuses his conduct. (People v. Reyes (1987) 195 Cal.App.3d 957, 963-964.) Appellant did not explain at the resentencing hearing the relationship between his addiction and his criminal activity and does not do so on appeal. Indeed, we see no such relationship here, observing that whatever value appellant’s claimed addiction might have in mitigating an offense of simple possession, count 2 involved supplying methamphetamine and specifically, the provision of this drug to a minor. Appellant points out that his addiction is tied inextricably to his prior drug convictions and his probationer status at the time of his crimes, the aggravating factors on which the trial court relied. He cites no authority, however, allowing him to rely on his addiction to mitigate not only the conduct for which the upper term was imposed, but also his prior offenses. In any event, the assessment of its relative weight was within the trial court’s discretion. (See People v. Salazar, supra, 144 Cal.App.3d at p. 813.)
Appellant was convicted in February 1998 of a felony violation of Health and Safety Code section 11350, subdivision (a) [possession of narcotics], and in February 2003 of a felony violation of Health and Safety Code section 11377, subdivision (a) [possession of methamphetamine].)
In so concluding, we reject appellant’s assertion that our reference to his mental condition in Daley I operated as an endorsement of that factor’s significance in mitigation. Contrary to his assertion, we did not discuss his mental state in “correcting” the trial court’s evaluation that there were no compelling mitigating factors; we referred to it as an “arguable circumstance in mitigation” and considered it only in concluding that we could not deem the error harmless beyond a reasonable doubt. (See Daley I, supra, A109917, p. 6.)
III. Appellant Has Not Shown that the Trial Court Failed to Weigh His Mental State.
Appellant claims that he does not take issue with the trial court’s exercise of discretion in this regard, but rather, its failure to exercise such discretion. (See People v. Sandoval, supra, 41 Cal.4th at pp. 847-848 [“A failure to exercise discretion also may constitute an abuse of discretion”].) He contends that the trial court did not weigh the relevant criteria and instead, simply searched for new aggravating factors to justify its original sentence. In support of this assertion, he points to the trial court’s reasoning set forth in the record, maintaining that its “lack of reference to [his] mental illness reflects a lack of meaningful consideration of that factor....” He is mistaken. A trial court is not required to weigh aggravating and mitigating circumstances in setting out its reasoning; it need only identify the primary factors for its sentencing decision. (Id. at pp. 846-847.) The trial court did so here.
We must presume that the trial court considered the relevant criteria unless the record affirmatively shows otherwise. (Cal. Rules of Court, rule 4.409; see Evid. Code, § 664 [presumption that official duty has been regularly performed].) The trial court’s comments at the resentencing hearing suggest that it did not engage in the sentencing process anew, but determined, in light of its initial analysis, whether the upper term originally imposed should stand. Nonetheless, the trial court referred specifically to documentation regarding appellant’s dual diagnosis and medications and expressly acknowledged that he had asserted these as mitigating factors. The trial court also stated that it had used the two aggravating factors “in formulating the ultimate sentence in this case,” an indication that these were not the sole considerations in its decision. Appellant presents no authority requiring a sentencing court to revisit its initial evaluation of every relevant factor on remand, when no new evidence has been presented. Although he asserted his mental condition in mitigation at his original sentencing hearing, the trial court concluded that it could not “find any compelling factors in mitigation.”
In summarizing appellant’s position, the trial court noted that he had “asked for consideration of mitigating factors that could reduce the sentence in [Count 2] from the aggravating status to a middle term type sentence.” Then, in imposing sentence, the trial court began by stating, “The Court did review once again the issue of the aggravating factors, and the Court does make [these] findings.”
We cannot conclude on this record that the trial court failed to take all relevant factors into account.
DISPOSITION
The judgment is affirmed.
We concur: Siggins, J., Jenkins, J.