Opinion
H050676
10-09-2023
THE PEOPLE, Plaintiff and Respondent, v. GILBERT MICHAEL FOSTER, JR., Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. C1109943
BROMBERG, J.
In 2012, appellant Gilbert Michael Foster, Jr. was sentenced to 17 years in prison for robbery, with enhancements for use of a firearm and for prior prison terms. In 2022, Foster petitioned for recall and resentencing based on recent changes in the sentencing laws, and the trial court struck the prior prison term enhancements, reducing his sentence to 15 years. Foster now appeals, arguing that the trial court should have reduced his robbery sentence and dismissed the firearm enhancement. Because Foster bases these arguments on statutory provisions that he did not invoke in the trial court, and those provisions require discretionary determinations that should be made by the trial court in the first instance, we conclude that Foster's arguments have been forfeited. We also conclude that Foster has not demonstrated ineffective assistance of counsel based on trial counsel's failure to raise these arguments.
I. Background
A. The June 21, 2011 Robbery
Because both trial and preliminary examination were waived, we draw the underlying facts of this case from the probation officer's report.
On June 21, 2011, Foster and another man, Sean Nevels, entered a pizzeria in Santa Clara around 11:00 p.m. as the restaurant was closing. Foster and Nevels came in through a rear door, wearing surgical masks and carrying handguns. One of them struck an employee near the cash register with a handgun; they ordered the five employees in the restaurant to the floor, where they bound the employees' hands behind the employees' backs with duct tape, a belt, and an electrical cord; and they moved the employees around at gun point. Foster and Nevels then grabbed $1256.50 in cash and fled out the back of the building.
One of the restaurant's owners watched the incident on the restaurant's surveillance camera, and the police captured both Foster and Nevels shortly afterwards. During a search of the area, the police found two fully loaded handguns, duct tape, and $1176.62 in cash and coins.
B. The Initial Proceedings
In June 2011, the Santa Clara County District Attorney filed a complaint alleging that Foster, Nevels, and a third person committed five counts of robbery (Pen. Code, §§ 211, 212.5, subd. (c)), with the personal use of a firearm (§ 12022.53, subd. (b)), and that Foster had served two prior prison terms. (§ 667.5, subd. (b).) In November 2011, Foster pleaded no contest to each of the counts and admitted the firearm enhancement as well as the two prior prison terms pursuant to a plea agreement that he would receive a sentence between 12 and 20 years in state prison. In January 2012, the trial court sentenced Foster to 17 years in prison. Specifically, Foster was sentenced to the upper term of five years on one count of robbery with concurrent sentences on the other four counts. The trial court also imposed 10 years for the firearm enhancement and one year for each of the prior prison terms. On appeal, this court modified the judgment to include a court security fee and a criminal conviction assessment, but otherwise affirmed the judgment. (People v. Foster (Dec. 18, 2012, H038091) [nonpub. opn.].)
Subsequent undesignated statutory references are to the Penal Code.
C. The Petition for Recall and Resentencing
In October 2022, Foster filed a petition for recall and resentencing. He argued that the two one-year enhancements imposed for prior prison terms were invalid under the newly enacted section 1172.75, which renders "legally invalid" enhancements under section 667.5 for prior convictions not involving sexually violent offenses. (§ 1172.75, subd. (a).) Foster also argued that he should be resentenced under subdivision (c) of section 1172.75 and, in particular, his sentence on the robbery count should be reduced by an additional two years to the middle term under subdivision (d)(4) of section 1172.75.
In the petition, Foster recounted his childhood, including the traumatic impact of his father's arrest for sexually assaulting his sister, and how by age 25 or 26, when he committed the robbery, he had lost the ability to care about the feelings of others. However, Foster did not argue that he should be sentenced to the lower term under section 1170, subdivision (b)(6). Nor did he ask the trial court to strike the firearm enhancement under section 1385. Instead, Foster argued that in prison he had "continue[d] down the potholed road toward [] redemption" and therefore a lower sentence would not endanger public safety.
On December 14, 2022, the trial court struck the two one-year enhancements for the prior prison terms. In doing so it rejected the People's argument that reducing his sentence would endanger public safety. The trial court, however, did not reduce Foster's sentence on the robbery count or strike the firearm enhancement.
Foster timely appealed. We have jurisdiction over this appeal as it is from an order made after judgment. (§ 1237, subd. (b).)
II. Discussion
A trial court's sentencing decisions are reviewable for abuse of discretion. (People v. Panozo (2021) 59 Cal.App.5th 825, 837.) We find no such abuse here because the arguments asserted by Foster on appeal were not raised below and have been forfeited. In addition, we reject Foster's claims of ineffective assistance of counsel.
Initially, the Attorney General argued that the trial court lacked jurisdiction to resentence Foster under section 1172.75 because the Department of Corrections did not certify that he was eligible for resentencing under section 1172.75. After Foster submitted evidence that the department did certify his eligibility, the Attorney General withdrew his jurisdictional argument.
A. The Robbery Sentence
Foster argues that the trial court should have reduced his sentence on the robbery count from the upper term to either the middle or lower term based on section 1170, subdivision (b), which generally prohibits sentences from exceeding the middle term. Foster, however, did not ask the trial court to reduce his robbery sentence under this section, and because the provisions of that section that he invokes require discretionary determinations, we conclude that these arguments have been forfeited. While Foster also argues in the alternative that trial counsel rendered ineffective assistance of counsel by not invoking section 1170, we conclude that this argument fails because Foster has not demonstrated prejudice.
When Foster was originally sentenced in 2012, section 1170 provided that the choice between sentencing a defendant to the lower, middle, or upper term "shall rest within the sound discretion of the court." (Former § 1170, subd. (b), as amended by Stats. 2011-2012, ch. 12, § 12.4.) Effective January 1, 2022, Senate Bill No. 567 (2021-2022 Reg. Sess.) amended section 1170 to make the middle term the presumptive sentence. (People v. Flores (2022) 75 Cal.App.5th 495, 500; see § 1170, subd. (b)(1).) As amended, section 1170, subdivision (b)(2) now provides that the trial court may impose a sentence exceeding the middle term "only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term." (§ 1170, subd. (b)(2).) Moreover, the trial court may not find aggravating circumstances at sentencing: Instead, "the facts underlying those circumstances [must] have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial." (Ibid.) In addition, subdivision (b)(6) requires trial courts to impose the lower term in certain situations "unless the court finds that the aggravating circumstances outweigh the mitigating circumstances." (§ 1170, subd. (b)(6).) Among other things, the lower term must be imposed if either of the following was a "contributing factor" in the commission of an offense: "(A) The person has experienced psychological, physical, or childhood trauma, including but not limited to, abuse, neglect, exploitation, or sexual violence," or "(B) The person is a youth, or was a youth as defined under subdivision (b) of Section 1016.7 [i.e., person under 26 years of age] at the time of the commission of the offense." (Ibid.)
Although the Attorney General concedes that section 1170, as amended, applies here, he argues that Foster forfeited any argument under this section by not invoking the section in the trial court. We agree. In general, claims not raised in the trial court may not be raised for the first time on appeal. (People v. Saunders (1993) 5 Cal.4th 580, 589590.) This includes "claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices." (People v. Scott (1994) 9 Cal.4th 331, 353 (Scott).) Although Foster asked the trial court to reduce his robbery sentence to the middle term, he did so under section 1172.75, subdivision (d)(4) and made no mention of section 1170. By failing to invoke subdivisions (b)(2) and (b)(6) of section 1170 in the trial court, Foster precluded the trial court from addressing whether aggravating circumstances justify the imposition of an upper term sentence, a factor under both subdivisions. (See § 1170, subd. (b)(2) [permitting sentences that exceed the middle term "when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term"]; § 1170, subd. (b)(6) [permitting sentences that exceed the lower term if "the court finds that the aggravating circumstances outweigh the mitigating circumstances"].) As a consequence, Foster is not permitted to invoke these provisions for the first time on appeal. (Scott, at p. 353.)
In his opening brief, Foster argued that section 1172.75, subdivision (d)(4) does not bar application of section 1170. As the Attorney General concedes this point, we need not address it.
Foster contends that his arguments under section 1170 have not been forfeited because his sentence violates that section and therefore amounts to an unauthorized sentence, which is not subject to the general rule of forfeiture. We disagree. "[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (Scott, supra, 9 Cal.4th at p. 354.) As noted above, section 1170 expressly authorizes upper term sentences "when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment." (§ 1170, subd. (b)(2).) Thus, the upper term sentence for robbery imposed on Foster was not unauthorized.
Foster also argues that he could not be sentenced to an upper term under section 1170 because, as the Supreme Court recognized in Cunningham v. California (2007) 549 U.S. 270, the Sixth Amendment prohibits the imposition of an increased sentence based on facts that have not been found by a jury beyond a reasonable doubt. Aggravating circumstances, however, include factors such as whether the defendant has prior convictions of increasing seriousness, served prior prison terms, or committed the crime in question while on parole. (See Cal. Rules of Court, rule 4.421(b)(2)-(b)(4).) Moreover, as our Supreme Court has observed, "the right to a jury trial does not apply to the fact of a prior conviction [citations]" (People v. Black (2007) 41 Cal.4th 799, 818), and trial courts may determine whether convictions are of increasing seriousness without running afoul of the Sixth Amendment (id. at pp. 819-820). Similarly, "the federal constitutional right to a jury trial and proof beyond a reasonable doubt . . . does not extend to the circumstance that a defendant was on probation or parole at the time of the offense or has served a prior prison term." (People v. Towne (2008) 44 Cal.4th 63, 79.) Thus, the Sixth Amendment did not bar consideration of the aggravating circumstances here and therefore does not save Foster's section 1170 arguments from forfeiture.
Foster argues as well that, if his section 1170 arguments were forfeited, then his trial counsel provided ineffective assistance. Foster, however, bears the burden of establishing ineffective assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 218 (Ledesma).) In particular, he "must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel's failings." (People v. Cudjo (1993) 6 Cal.4th 585, 623; see Strickland v. Washington (1984) 466 U.S. 668, 687.)
Here, even assuming deficient performance, Foster's claim of ineffective assistance fails because he has not shown a reasonable probability of a more favorable determination absent that deficient performance. The Attorney General argues that five aggravating factors supported imposing the upper term in this case: Foster's prior convictions were numerous and of increasing seriousness (Cal. Rules of Court, rule 4.421(b)(2)); he had served two prior prison terms (id., rule 4.421(b)(3)); he committed the robbery at issue while on parole (id., rule 4.421(b)(4)); he performed unsatisfactorily on parole (id., rule 4.421(b)(5)); and the trial court imposed concurrent terms for the robberies where it could have imposed consecutive terms (id., rule 4.421(a)(7)). In addition, as the People pointed out in the trial court, the robbery in this case demonstrated planning and criminal sophistication; it was violent and involved pistol-whipping the manager to try to get him to open the safe; the victims were vulnerable because they were surprised in a confined space; and the victims were tied up. Although Foster asserts that "it cannot be said that a lower sentence is inherently unlikely," he does not dispute that the trial court was likely to find these facts, much less explain why it is reasonably probable that the court would have reduced his robbery sentence despite them. As a consequence, we conclude that Foster has failed to show a reasonable probability that the trial court would have sentenced him to a lower term had counsel made objections based on section 1170. (See People v. Tilley (2023) 92 Cal.App.5th 772, 778 ["Prejudice must be a demonstrable reality established based on facts in the record, not simply speculation as to the effect of the errors or omissions of counsel."].)
Foster also argues that the trial court could not have considered his prior convictions as aggravating circumstances because they are factors "relating to the defendant" (Cal. Rules of Court, rule 4.421(b)), and section 1170 permits consideration only of circumstances in aggravation "of the crime" (§ 1170, subd. (b)(2).). We are not persuaded. Section 1170 expressly states that "the court may consider the defendant's prior convictions in determining sentencing . . ." (§ 1170, subd. (b)(3)), and therefore courts routinely find aggravating circumstances under § 1170 based on prior convictions. (See, e.g., People v. Pantaleon (2023) 89 Cal.App.5th 932, 938-939; People v. Butler (2023) 89 Cal.App.5th 953, 959, review granted May 31, 2023, S279633; People v. Dunn (2022) 81 Cal.App.5th 394, 403-404, review granted Oct. 12, 2022, S275655; People v. Falcon (2023) 92 Cal.App.5th 911, 952-953, review granted Sept. 13, 2023, S281242.) Foster also argues that the rules concerning aggravating circumstances are an unconstitutional violation of separation of powers because they involve delegation of the Legislature's power to define crimes and fix penalties. The Supreme Court, however, has held that the Judicial Council's authority to issue rules concerning sentencing is not an unconstitutional delegation of authority because the Legislature made the "fundamental policy decision" underlying the rules and provided "sufficiently precise" standards for its application. (People v. Wright (1982) 30 Cal.3d 705, 713-714.) It makes no difference that the Legislature has delegated to the Judicial Council its power to define crimes and fix penalties. It is "commonplace" for the executive and judicial branches to exercise some legislative powers, and "[t]he exercise of such quasi-legislative authority . . . has never been thought to violate the separation-of-powers doctrine. [Citations.]" (Davis v. Municipal Court (1988) 46 Cal.3d 64, 76.)
B. The Firearm Enhancement
Foster also argues that the trial court should have struck the firearm enhancement imposed on him under section 1385, based on his childhood trauma and youth at the time of the robbery at issue here. This argument also has been forfeited. Section 1385 grants trial courts authority to strike enhancements "in the furtherance of justice" (§ 1385, subd. (b)(1)), and while Senate Bill No. 81 (2021-2022 Reg. Sess.) recently amended section 1385 to specify "mitigating circumstances," including youth and childhood trauma, that must be given great weight (§ 1385, subd. (c)(2); People v. Sek (2022) 74 Cal.App.5th 657, 674), it does not require courts to automatically strike enhancements. Childhood trauma only constitutes a mitigating circumstance if it is "connected to" the current offense (§ 1385, subd. (c)(2)(E)), and in any event trial courts may refuse to strike an enhancement if they "find[] that dismissal of the enhancement would endanger public safety." (§ 1385, subd. (c)(2).) By failing to raise section 1385 in the trial court, Foster deprived the court of the opportunity to make these determinations and therefore forfeited any argument under section 1385. (People v. Carmony (2004) 33 Cal.4th 367, 375-376 ["any failure on the part of a defendant to invite the court to dismiss under section 1385 . . . waives or forfeits his or her right to raise the issue on appeal"].)
Foster argues that there was no forfeiture here because he is challenging the way in which the trial court exercised its sentencing discretion rather than its application of the sentencing statutes. We are not persuaded. It is true that a defendant is"' "entitled to sentencing decisions made in the exercise of the" 'informed discretion'" of the sentencing court," '" and therefore is entitled to a remand" 'when the . . . trial court proceeded with sentencing on the erroneous assumption it lacked discretion ...." (People v. Czirban (2021) 67 Cal.App.5th 1073, 1096-1097.) But a defendant must affirmatively demonstrate on appeal that the trial court misunderstood the scope of its discretion." '[R]emand is unnecessary if the record is silent concerning whether the trial court misunderstood its sentencing discretion'" because"' "[a] trial court is presumed to have been aware of and followed the applicable law." '" (Id. at p. 1097.) As the record is silent here, we cannot presume that the trial court misunderstood the scope of its discretion.
Finally, Foster argues that, if his section 1385 arguments were forfeited, he received ineffective assistance of counsel at sentencing. As noted above, however, Foster bears the burden of establishing ineffective assistance of counsel (see Ledesma, supra, 43 Cal.3d at p. 218), and to do so he must overcome the "presumption counsel acted within the wide range of reasonable professional assistance." (People v. Mai (2013) 57 Cal.4th 986, 1009.) Indeed, where ineffective assistance is asserted on direct appeal without any evidence concerning the tactical choices made by trial counsel, "a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation." (Ibid.) Foster cannot satisfy this burden because his trial counsel had a compelling reason for not seeking to vacate the firearm enhancement. The plea agreement in this case was that Foster would receive a sentence between 12 and 20 years in state prison, a significant reduction from the potential 34-year maximum sentence he was facing. The trial court, however, imposed 10 years for the firearm enhancement and only seven years for the robbery count and the prior conviction enhancements. As a consequence, a successful challenge to the firearm enhancement might have reduced Foster's sentence below the minimum in the plea agreement, permitting the prosecution to withdraw from the plea agreement, and thereby subjecting him a sentence twice as long as he received, under the Supreme Court's decision in People v. Stamps (2020) 9 Cal.5th 685. Foster asserts that Stamps applies only to non-final cases, but he is unable to point to anything in the relevant portion of Stamps turning on that fact or any case interpreting it to do so. As a consequence, trial counsel would have been justified in concluding that the firearm enhancement might jeopardize the plea agreement and deciding against taking that risk. We therefore cannot say that trial counsel had no rational tactical purpose in not seeking to vacate the gun enhancement.
III. Disposition
The judgment is affirmed.
WE CONCUR: BAMATTRE-MANOUKIAN, ACTING P.J. DANNER, J.