Opinion
D081755 D083595
08-02-2024
THE PEOPLE, Plaintiff and Respondent, v. HAYDEN ABRAHAM GERSON, Defendant and Appellant. In re HAYDEN ABRAHAM GERSON on Habeas Corpus.
Law Office of Charles Sevilla and Charles M. Sevilla for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina and Liz Sulaiman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County, No. SCD270002 Kenneth K. So, Judge. Consolidated with a petition for writ of habeas corpus. Orders reversed; order to show cause discharged and petition for writ of habeas corpus dismissed as moot.
Law Office of Charles Sevilla and Charles M. Sevilla for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General,
A. Natasha Cortina and Liz Sulaiman, Deputy Attorneys General, for Plaintiff and Respondent.
We resolve this case by memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.) On August 11, 2023, we granted Gerson's unopposed request for judicial notice of the record in his prior appeal, People v. Gerson (2022) 80 Cal.App.5th 1067 (Gerson). Rather than restate the factual and procedural background of the case, we will assume familiarity with Gerson. We also grant Gerson's July 6, 2023, motion to augment.
DATO, J.
Hayden Abraham Gerson attacked two police officers attempting to detain him after he refused to comply with their orders. This attack led to a SWAT standoff and gun battle between Gerson and two SWAT officers. After Gerson choked and bit a police K-9, multiple officers were able to subdue and arrest him. A jury convicted him on two counts each of attempted voluntary manslaughter, assaulting a peace officer with a semiautomatic firearm, and resisting an executive officer, as well as one count each of shooting at an inhabited house, assault on a peace officer with force likely to produce great bodily injury, making a criminal threat, exhibiting a firearm to a peace officer to resist arrest, and harming or interfering with a police animal. The jury also found true various enhancements to these offenses. After the jury decided Gerson was sane during commission of the offenses, the trial court sentenced him to a total term of 33 years eight months in prison. (Gerson, supra, 80 Cal.App.5th at p. 1073.)
In Gerson's prior appeal, we concluded that substantial evidence supported the trial court's finding that Gerson did not meet his burden of showing he suffered from bipolar disorder, a mental disorder that qualifies for pretrial diversion. Thus, the court did not abuse its discretion when it denied Gerson's motion for pretrial diversion. We also concluded that an individual, such as Gerson, who was out on bail and subject to electronic monitoring on home detention was similarly situated to persons participating in an electronic monitoring program pursuant to Penal Codesection 1203.018 and that a rational basis does not exist for treating these categories of individuals differently. We affirmed the judgment but vacated Gerson's sentence and remanded the matter, allowing the trial court to award Gerson additional preconviction custody credits and exercise its discretion to resentence him under Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 695, § 5.3, eff. Jan. 1, 2022) (Assembly Bill 124), which amended section 1170 to make the low term sentence presumptively appropriate under specified circumstances. (See generally Gerson, supra, 80 Cal.App.5th 1067.)
Undesignated statutory references are to the Penal Code.
On remand, the trial court resentenced Gerson to 31 years four months in prison, choosing the middle term, declining to strike the firearm enhancement, and granting additional credits. Gerson appeals, contending: (1) the court used the wrong legal standard when it imposed the midterm sentence; (2) section 1385 mandated dismissal of the 20-year firearm enhancement under section 12022.53, subdivision (c); and (3) remand is required for reevaluation of whether he is entitled to mental health diversion under the amended version of section 1001.36. The People respond that the trial court did not abuse its discretion at resentencing and Gerson forfeited any claim the court failed to apply the 2023 mental health diversion amendment because he failed to renew his motion under the new statute. Gerson also filed a petition for a writ of habeas corpus, arguing that his counsel at resentencing was ineffective in failing to (1) object to the court's use of the wrong legal standard at the hearing, and (2) renew Gerson's request for mental health diversion under the new diversion law. He asserts there was no tactical reason for failing to object or raise diversion.
We issued an order to show cause in the habeas corpus proceeding. We ordered that the petition for writ of habeas corpus in case No. D083595 be considered with Gerson's direct appeal in case No. D081755. We subsequently granted Gerson's motion for consolidation and ordered case Nos. D081755 and D083595 consolidated. We address both matters in this opinion.
We conclude the trial court erred it when it used the wrong legal standard in sentencing Gerson to the middle term. This error requires that Gerson be fully resentenced and moots Gerson's remaining contentions.
DISCUSSION
In our prior opinion, we remanded the matter for resentencing under Assembly Bill 124, which amended section 1170 to make the lower term the presumptive sentence under specified circumstances. Specifically, "[n]otwithstanding paragraph (1), and unless the court finds that the aggravating circumstances outweigh the mitigating circumstances 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." (§ 1170, subd. (b)(6)(A).) Psychological trauma based on mental illness may be a circumstance qualifying for the lower term presumption in section 1170, subdivision (b)(6) if that trauma contributed to the crime. (People v. Banner (2022) 77 Cal.App.5th 226, 241 (Banner).)
As another panel of this court explained, "under section 1170, subdivision (b)(6), the sentencing court is tasked with assessing mitigating and aggravating factors to impose the middle term only if it first determines that the defendant qualifies for treatment under the provision-because he or she has . . . experienced certain trauma, . . . and those circumstances contributed to the offense." (People v. Hilburn (2023) 93 Cal.App.5th 189, 205, italics added.) Accordingly, there are three parts to the statute. Gerson was entitled to the lower term if he (1) "experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence," and (2) this was "a contributing factor" in the commission of the offense. (§ 1170, subd. (b)(6)(A).) If the court makes these two findings, then it must impose the lower term unless it finds "that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice." (Ibid., italics added.)
Gerson claimed both childhood and psychological trauma contributed to his offenses, entitling him to the lower term presumption under section 1170. At the hearing, the court chose the middle term, finding the aggravating factors outweighed the mitigating factors. It believed Dr. Friedman, who testified that Gerson had a personality disorder and was "agitated and angry" before the incident. The court also could not "find a direct causation with any mental illness" as set forth in the DSM or "a causal connection to any prior childhood trauma."
Gerson contends the trial court abused its discretion in imposing the middle term instead of the lower term by: (1) applying an erroneously high standard for mitigation under amended section 1170; (2) failing to sufficiently credit the mitigation evidence of his mental health; and (3) considering aggravating factors that were not admitted or found true by a jury beyond a reasonable doubt. We conclude Gerson's first argument is meritorious.
The People argue Gerson forfeited this issue by failing to object at the hearing to use of the wrong standard. In turn, by his petition for writ of habeas corpus, Gerson argues his counsel rendered ineffective assistance by failing to object to the court's articulation of the wrong legal standard. "As a general rule, an appellate court can reach a question a party has not preserved for review if the issue involves neither the admission nor the exclusion of evidence." (People v. Gutierrez (2009) 174 Cal.App.4th 515, 520.) Moreover, a claim can be addressed on the merits, notwithstanding trial counsel's failure to object, if the potential exists that the appellant has been denied the right to effective assistance of counsel. (People v. Crittenden (1994) 9 Cal.4th 83, 146.) We therefore exercise our discretion to reach the merits of Gerson's claim of sentencing error.
We presume the trial court "knew and properly applied the law. It is an appellant's burden to overcome the regularity presumption by an affirmative showing." (People v. Woods (1993) 12 Cal.App.4th 1139, 1152.) Gerson met this burden. Gerson's counsel informed the court in writing and at the hearing that the proper standard was for the trauma to be a contributing factor in the commission of the offense. Despite this knowledge, the trial court applied the wrong legal standard of "direct causation" and "a causal connection," which appear to be materially higher standards than merely "a contributing factor" in the commission of the offense. (See Banner, supra, 77 Cal.App.5th at p. 241 ["trial court's conclusion [defendant's] mental illness was not a significant factor in the crime does not subsume a finding it was a lesser contributing factor"].) The court's use of the wrong legal standard on the record overcomes the presumption of regularity and constitutes an abuse of discretion. (People v. Nakano (2023) 89 Cal.App.5th 623, 635.)
Even if the trial court merely used inartful phrasing, defense counsel should have pointed out the problem so that the court could clarify that it understood and applied the proper standard. Gerson's counsel failed to do so. Accordingly, we cannot definitively determine whether the trial court applied the statute correctly or incorrectly. This uncertainty makes it impossible to conclude the error was harmless and requires that we remand the matter to reconsider the issue under the correct legal standard. (See People v. Knoller (2007) 41 Cal.4th 139, 158-159 [remanding for trial court to reconsider new trial order under correct legal standards].)
It is also worth noting that when sentencing Gerson in 2019, the trial court did not find aggravating factors outweighed the mitigating factors and it imposed a midterm sentence on every count. When resentencing him in 2023, where a change in the law created a presumptive lower term, the court inconsistently found the aggravating factors outweighed mitigating ones even though the nature of Gerson's crimes had not changed.
Our remand for resentencing renders moot Gerson's remaining arguments on this issue and his claim that the trial court erred in denying dismissal of the firearm enhancement. The remand also moots his petition for habeas corpus because Gerson may renew his request for mental health diversion at the sentencing hearing. On remand, the trial court may fully resentence Gerson anew. (People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 ["[T]he full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant."].) We express no view as to how the trial court should exercise its discretion on remand.
DISPOSITION
The sentence is vacated, and the matter is remanded for resentencing.
The order to show cause is discharged and the petition for writ of habeas corpus is dismissed as moot.
WE CONCUR: IRION, Acting P. J., DO, J.