Opinion
A165470
09-27-2023
THE PEOPLE, Plaintiff and Respondent, v. LINDSAY MAE HALL, Defendant and Appellant.
NOT TO BE PUBLISHED
Del Norte County Super. Ct. No. CRF22-9051
HIRAMOTO, J. [*]
After pleading guilty to felony possession of a stolen vehicle (Pen. Code, § 496d, subd. (a)), Lindsay Mae Hall was sentenced to the middle term of two years in state prison. At the sentencing hearing, the trial court ordered Hall to pay $370 in fines, in addition to the $220 fine she incurred in connection with another case. Hall now appeals from that sentence on two grounds. First, she contends that the trial court erred in imposing the middle term because Hall has "experienced . . . trauma" within the meaning of the determinate sentencing statute. (§ 1170, subd. (b)(6).) Second, under People v. Duenas (2019) 30 Cal.App.5th 1157 (Duenas), she argues that her constitutional rights were violated when the trial court imposed $590 in restitution fines without any prior determination of Hall's ability to pay. We conclude that neither argument was preserved for appeal and affirm the sentence accordingly.
All subsequent statutory references are to the Penal Code unless otherwise noted.
DISCUSSION
The parties are familiar with the facts and our opinion does not meet the criteria for publication. (Cal. Rules of Court, rule 8.1105(c).) Consequently, we resolve the cause before us, consistent with constitutional requirements, in an abbreviated opinion with reasons stated. (Cal. Const., art. VI, § 14; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1262 [" 'An opinion is not a controversial tract, much less a brief in reply to the counsel against whose views we decide. It is merely a statement of conclusions, and of the principal reasons which have led us to them.' "].)
1. Hall's Challenge to the Imposition of the Middle Term Is Forfeited
In challenging her middle term sentence for possession of a stolen vehicle, Hall argues that she should have received the lower term under section 1170, subdivision (b)(6), and that she is entitled to remand for resentencing under People v. Banner (2022) 77 Cal.App.5th 226 (Banner). We reject these arguments because they were not preserved for appeal.
"As a general rule, only 'claims properly raised and preserved by the parties are reviewable on appeal.' [Citation.] . . . Thus, all 'claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' raised for the first time on appeal are not subject to review." (People v. Smith (2001) 24 Cal.4th 849, 852 (Smith).) Here, the argument applying the "trauma" provisions of section 1170 to Hall's case is raised for the first time on appeal and we deem it waived accordingly.,
We decline to request supplemental briefing on this issue because the issue of Hall's failure to raise the section 1170, subdivision (b)(6) argument below is proposed in her own opening brief. (See Gov. Code, § 68081.) There, Hall contends: "To the extent defense counsel failed to argue the trial court imposed the aggravated [i.e., middle] term based on both permissible and impermissible factors, her performance was deficient."
Both Banner, supra, 77 Cal.App.5th 226 and People v. Salazar (2022) 80 Cal.App.5th 453, in which our colleagues in other districts considered remanding those matters for further findings, dealt with sentencing hearings that occurred before the relevant provisions of section 1170 were enacted. For that reason, they are distinguishable from Hall's case, where trial counsel could have objected, but did not do so.
On the other hand, the waiver rule admits a "narrow exception" for"' "unauthorized sentences" or sentences entered in "excess of jurisdiction."' [Citation.] Because these sentences 'could not lawfully be imposed under any circumstance in the particular case' [citation], they are reviewable 'regardless of whether an objection or argument was raised in the trial and/or reviewing court.' [Citation.]" (Smith, supra, 24 Cal.4th at 852.) Review is "appropriate in these cases because the errors present[] 'pure questions of law' [citation] . . . and [are]" 'clear and correctable' independent of any factual issues presented by the record at sentencing." (Ibid.) "In other words, obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings are not waivable." (Ibid.)
Hall's sentence does not fall within this narrow exception. In this appeal, she argues that she "suffered trauma that would qualify her for the low term presumption" created by section 1170, subdivision (b)(6). In relevant part, that subdivision provides as follows: "[U]nless 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).) As Hall observes, "psychological trauma stemming from mental illness properly invokes the lower term presumption ...." (Banner, supra, 77 Cal.App.5th at p. 240.)
However, what follows from those propositions is that the lower term is presumptive in cases where: (1) the defendant has suffered from mental illness; (2) that mental illness caused the defendant to experience psychological trauma; and (3) that psychological trauma was a contributing factor in the commission of the offense. It is impossible to apply these criteria to Hall's case without "referring to factual findings in the record or remanding for further findings...." (Smith, supra, 24 Cal.4th at p. 852.) In other words, the criteria concern "factual issues presented by the record at sentencing." (Ibid.) For this reason, Hall's sentence was not an unauthorized sentence for the purposes of excepting her argument from the waiver rule.
We also reject Hall's claim that her trial counsel's purported failure to object was ineffective assistance of counsel under the Sixth and Fourteenth Amendments to the federal constitution. "To establish entitlement to relief for ineffective assistance of counsel the burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings." (People v. Lewis (1990) 50 Cal.3d 262, 288.) Hall is unable to meet this two-fold burden because, as we have already noted, the question of whether section 1170, subdivision (b)(6), applies to her depends on unresolved issues of fact. We therefore have no reason to conclude that an objection should have been "expected of [a] reasonably competent" attorney, or that "it is reasonably probable" for such an objection to have benefitted Hall. (Ibid.) In short, Hall has not affirmatively shown that there was a failure to object, much less a failure that would constitute ineffective assistance of counsel.
2. Hall's Challenge to the Restitution Fines Is Forfeited
Citing Duenas, supra, 30 Cal.App.5th at page 1168, Hall argues that the $590 in restitution fines, imposed on her "without a determination [of her] present ability to pay," violated "due process under both the United States Constitution and the California Constitution." However, she did not object to those fines at her sentencing hearing, which was held more than three "years after Duenas was decided. Therefore, this issue is forfeited." (People v. Flowers (2022) 81 Cal.App.5th 680, 687, citing People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154 and People v. Greeley (2021) 70 Cal.App.5th 609, 624.)
Finally, there is Hall's contention that her trial counsel's "failure to object" denied Hall her constitutional right to effective assistance of counsel. This claim fares no better than the similar one Hall made regarding section 1170, subdivision (b)(6). Here, as in People v. Flowers, supra, 81 Cal.App.5th at page 687, "the record is silent as to counsel's reasons, if any, for failing to object." "If '" 'the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,' the claim on appeal must be rejected."' (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)" (Ibid.)
DISPOSITION
We affirm.
WE CONCUR: BROWN, P.J., STREETER, J.
[*] Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.