Opinion
D081980
08-12-2024
THE PEOPLE, Plaintiff and Respondent, v. ANTUON EUGENE GREY, Defendant and Appellant.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Christopher P. Beesley and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD240243 Runston G. Maino, Judge. Affirmed.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Christopher P. Beesley and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION ON REHEARING
DATO, J.
In 2013, defendant Antuon Eugene Grey was sentenced to an indeterminate prison term on one count of first degree murder (100 years to life) and a consecutive determinate term on one count of attempted murder (19 years) arising out of a shooting of two victims. A decade later, his sentence was recalled and he was resentenced pursuant to the terms of recently enacted Penal Code section 1172.75. As his primary contention on this appeal, Grey argued that once his sentence was recalled, his conviction was no longer "final" and the Estrada rule of statutory interpretationapplied to afford him the benefit of another recent legislative change narrowing the circumstances in which a defendant can be subject to additional punishment because he committed a crime for the benefit of a criminal street gang.
All statutory references are to the Penal Code.
See In re Estrada (1965) 63 Cal.2d 740 (Estrada).
But after our initial opinion was filed accepting this contention, the Attorney General submitted a petition for rehearing informing us that, apparently unbeknownst to any of the appellate lawyers in this case, the trial court had already dismissed the gang allegation that was the principal subject of Grey's appeal. In other words, Grey had already received much of the relief he was seeking. Of course, we immediately granted rehearing.
What remains of the appeal is an issue that was unnecessary for us to reach in our initial opinion. Grey contends that notwithstanding the dismissal of the gang allegation, the matter must be remanded for yet another resentencing so that the trial court can give retroactive application to section 1170, subdivision (b)(2) as amended by Senate Bill No. 567 (Stats. 2021, ch. 731). This statute allows imposition of the upper term in a determinate sentence "only when there are circumstances in aggravation of the crime . . . and the facts underlying those circumstances 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." In Grey's view, subdivision (d)(2) of section 1172.75 compelled the trial court to apply the amended version of section 1170, subdivision (b) when it resentenced him.
But this remaining argument founders on the fact that there is really no retroactivity issue. Grey was resentenced in March 2023, more than a year after the effective date of the statutory amendments he relies on, and there is nothing that demonstrates the court did not apply sections 1170 and 1172.75 as he advocates. More importantly, Grey's counsel did not argue that the court should not impose the upper term on the attempted murder count, as it had previously done. Such a contention, even if successful, would have reduced Grey's total sentence by a modest four years. Rather, counsel understandably focused on asking the judge to strike the 25-year firearm enhancement, which when doubled added 50 years to Grey's total sentence. And this the judge declined to do. Having made no specific argument about the upper determinate term in the trial court, Grey has thus forfeited his contention on this appeal. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Following his 2013 trial, Grey was convicted on one count of first degree murder (§§ 187, subd. (a), 189, subd. (a)), one count of unpremeditated attempted murder (§§ 664,187, subd. (a), and one count of assault with a semiautomatic firearm (§ 245, subd. (b)) with various sentence enhancements, including 25 years to life for the discharge of a firearm causing death (§ 12022.53, subd. (d)), and a one-year prison prior enhancement (former § 667.5, subd. (b)). In addition, the jury found that each of the three offenses was committed for the benefit of a criminal street gang under then-existing law (former § 186.22, subd. (b)(1)). He was originally sentenced to a total prison term of 100 years to life plus 19 years, calculated as follows: (1) for the murder, 25 years to life, doubled due to a prior strike, plus an additional 25 years to life for the firearm enhancement; (2) for the attempted murder, a consecutive upper term of nine years, doubled to 18 years for the prior strike, plus 25 years to life for the firearm enhancement; and (3) the one-year prison prior. Sentence on the assault-with-a-firearm count was stayed pursuant to section 654. The gang enhancements were also stayed under the reasoning of People v. Ortiz (1997) 57 Cal.App.4th 480, 486.
Effective January 1, 2022, Senate Bill No. 483 (Stats. 2021, ch. 728, § 3) added section 1171.1 (since renumbered as section 1172.75), which declared "legally invalid" most "prison prior" enhancements previously imposed pursuant to section 667.5. For affected defendants including Grey, this legislation required recall of the sentence, striking of the enhancement, and resentencing. (§ 1172.75, subds. (c) and (d).) It expressed the Legislature's intent that the court on resentencing would "apply any other changes in law that reduce sentences." (Id., subd. (d)(2).)
Grey's sentence was recalled and he was resentenced under section 1172.75 in March 2023. At the resentencing hearing, the People did not dispute that the prison prior enhancement should be stricken. Grey's attorney also requested that the trial court strike or reduce the firearm enhancement imposed pursuant to section 12022.53, subdivision (d). The court struck the prison prior, but declined to modify the firearm enhancement and otherwise imposed the same sentence. In the end, the original prison term of 100 years to life plus 19 years was reduced by one year.
Defense counsel did not ask the court to impose something less than the upper term on the attempted murder or to address the finding that the crimes were committed for the benefit of a criminal street gang. At the conclusion of the resentencing hearing, however, the judge told Grey that he had given his "attorneys a case that may or may not be applicable here relative to the gang allegation." "But," he added, "that's not in front of me today."
The record does not reflect what "case" the judge was referring to.
Roughly one month after the resentencing order, Grey filed a notice of appeal. However, the trial judge's concluding comments about the gang allegation seem to have prompted an additional hearing in early June, at which Grey, his trial counsel, and the deputy district attorney appeared.Apparently based on the trial court's power to recall the sentence pursuant to section 1172.1 (see generally Dix v. Superior Court (1991) 53 Cal.3d 442, 455, 460), the parties stipulated to dismiss the gang allegation. In the meantime, however, appellate counsel was appointed, the appeal proceeded, and no one advised appellate counsel or the Attorney General about the June hearing, which was not referenced in the appellate record.
Attached to the petition for rehearing are copies of the trial court's June 1, 2023 minute order, the amended abstract of judgment dated June 23, 2023, as well as a subsequent May 31, 2024 minute order issued after receipt of our initial opinion. Grey has informed us he has no objection to our taking judicial notice of these documents, and we do so on our own motion. (Evid. Code, §§ 452, subd. (d) and 459.)
DISCUSSION
With Grey's primary appellate argument mooted by the parties' stipulation as reflected in the trial court's June 1, 2023 minute order, we turn to his remaining contention. As we have noted, effective January 1, 2022, section 1172.75 mandated the recall and resentencing of most defendants, including Grey, previously subject to a "prison prior" enhancement. At any such resentencing the court was directed to apply "any other changes in law that reduce sentences." (§ 1172.75, subd. (d)(2).) One such "change[ ] in law," also effective January 1, 2022, was section 1170, subdivision (b). (Stats. 2021, ch. 719, § 1.3.) As amended by Senate Bill No. 567, it limits the circumstances in which a sentencing court can impose greater than the middle term of imprisonment for crimes subject to a determinate sentence. To impose the upper term, the court must find "circumstances in aggravation of the crime" that 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." (§ 1170, subd. (b)(2).) However, the court may consider a defendant's prior convictions "based on a certified record of conviction without submitting the prior convictions to a jury." (Id. subd. (b)(3); see generally People v. Lynch (Aug. 1, 2024, S274942) __Cal.5th __, __ [2024 Cal.Lexis 4157, *14].) Grey maintains his case must be remanded for resentencing so that the trial court can give retroactive effect to section 1170, subdivision (b).
But Grey's argument, framed in terms of Estrada "retroactivity," is misdirected. Even if Grey's interpretations of sections 1170 and 1172.75 are correct, no one has suggested that the upper term limitations of section 1170, subdivision (b) did not apply at Grey's resentencing that took place more than a year after those two statutes became effective. What Grey is really suggesting is that the trial court did not properly apply the law in effect at the time of his resentencing. He asserts that at no time during the hearing did the trial court expressly recognize the upper term limitations of sections 1170, subdivision (b) and 1172.75, subdivision (d)(4). But there are several presumptions governing appellate review of trial court orders that make such an express recognition unnecessary. Included among these are the fact that the trial court's order is presumed correct and the appellant bears the burden of affirmatively demonstrating error. (People v. Picazo (2022) 84 Cal.App.5th 778, 802.) Beyond that, "[i]n the absence of evidence to the contrary, we presume that the court 'knows and applies the correct statutory and case law.'" (People v. Thomas (2011) 52 Cal.4th 336, 361 (Thomas).)
Subdivision (d)(4) of section 1172.75 specifies that "[u]nless the court originally imposed the upper term, the court may not impose a sentence exceeding the middle term unless there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and those facts 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." Considered in isolation, this could be read to suggest that if the upper term was "originally imposed," the resentencing court can reimpose the upper term regardless of whether aggravating factors were stipulated to or found true beyond a reasonable doubt. But construing the statute in this way could create a tension with subdivision (d)(2) and might raise equal protection concerns as well. In any event, since the Attorney General does not advocate for such an interpretation, we will assume the new limitations in section 1170, subdivision (b) apply here.
Under section 1170 as amended by Senate Bill No. 567, whether to impose the upper term is a discretionary decision for the trial court based on the existence of aggravating factors. The real question is whether the court properly applied the amended statute in making its discretionary decision, and this is where the appellate presumptions doom Grey's argument. He wants us to infer from a silent record that the court misconstrued the applicable rule by considering aggravating factors not found by the jury beyond a reasonable doubt. To the contrary, however, we are required to assume it understood and applied the law correctly.
Grey concedes that the court properly considered his prior criminal history as an aggravating factor even without a jury finding. (See § 1170, subd. (b)(3).) Thus, there can be no contention that imposition of the upper term was not supported by substantial evidence even under Grey's reading of the statutes.
Most important, if Grey or his counsel was worried the trial judge was misapplying the law or had failed to adequately state the reasons for reimposing the upper term, it was his obligation to alert the court to his concern. Adopting this forfeiture principle (sometimes referred to as a waiver doctrine) in People v. Scott (1994) 9 Cal.4th 331, the Supreme Court held that it applies to any claims "involving the trial court's failure to properly make or articulate its discretionary sentencing choices," including the alleged failure "to state any reasons or give a sufficient number of valid reasons." (Id. at p. 353.) As Scott explains, the reasons for the rule are "practical and straightforward." (Ibid.) "Although the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing. Routine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention." (Ibid.) Here, Grey's counsel's failure to contest or object to imposition of the upper term on the attempted murder count forfeits the argument he now seeks to raise on appeal. (See People v. Anderson (2023) 88 Cal.App.5th 233, 241-242 [failure to object to upper term forfeited argument based on amendments to § 1170, subd. (b)]; People v. Velasquez (2007) 152 Cal.App.4th 1503, 1512 [defendant's lack of objection to upper term forfeited argument on appeal that trial court failed to articulate reasons for its imposition].)
In a last-ditch effort, Grey contends that if his trial attorney's failure to object or request clarification amounts to forfeiture of the argument, then he received constitutionally ineffective assistance of counsel. As a general rule, claims alleging ineffective assistance of trial counsel are most appropriately litigated by means of a petition for writ of habeas corpus. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267; People v. Lucas (1995) 12 Cal.4th 415, 437.) This is because "we begin with the presumption that counsel's actions fall within the broad range of reasonableness" (People v. Mickel (2016) 2 Cal.5th 181, 198), and the record on appeal frequently "sheds no light on why counsel acted or failed to act in the manner challenged" (People v. Pope (1979) 23 Cal.3d 412, 426). "In such circumstances, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation" for the challenged conduct, there is no alternative but to affirm the judgment, relegating the defendant to a habeas petition that can be used to remedy deficiencies in the appellate record. (Ibid.) We will thus reverse a judgment or order "only if there is affirmative evidence that counsel had '" 'no rational tactical purpose'"' for an action or omission." (Mickel, supra, 2 Cal.5th at p. 198, quoting Lucas, supra, 12 Cal.4th at p. 437.)
Here, the record contains no explanation why trial counsel chose not to contest imposition of the upper term on the attempted murder count. (See People v. Sepulveda (2020) 47 Cal.App.5th 291, 302.) Nor is this a situation where there could be no conceivable tactical justification for counsel's course of action. (Ibid.) Lawyers are entitled, in the exercise of their professional judgment, to concentrate on contentions having the best chance of success rather than attempting to raise "every colorable issue." (See Jones v. Barnes (1983) 463 U.S. 745, 753.) Grey's counsel may have concluded that raising the upper term contention would have achieved nothing of substance, merely prompting a reasonable explanation by the trial judge for his rational sentencing choice. (See People v. Price (1991) 1 Cal.4th 324, 387 ["Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile."].) Moreover, we have no way of knowing whether the decision to focus on striking the firearm enhancement was counsel's choice alone or one made in consultation with her client. It seems clear that successfully arguing for imposition of the middle term would have been a largely Pyrrhic victory that would not have achieved Grey's primary goal of providing a chance of release on parole.
As counsel explained at the resentencing hearing, "I was not asking the Court to change the fact that you sentenced him to life. What I was asking the Court is to make it so that at some point in time . . . he be given an opportunity should he do well and continue to do well in prison, that in 20, 25, 30 years, he could parole. The way that he is sentenced now, that would be impossible." Counsel went on to ask the court to "give Mr. Grey 50 to life on the murder conviction and an additional 18 years, I believe, on the attempted murder."
DISPOSITION
The judgment is affirmed.
WE CONCUR: O'ROURKE, Acting P. J. IRION, J.