Opinion
A167683
10-31-2023
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY SCOTT HARNDEN, Defendant and Appellant.
NOT TO BE PUBLISHED
Del Norte County Super. Ct. No. CRF91-027-C
BROWN, P. J.
Defendant Jeffrey Scott Harnden received a 46-year aggregate prison sentence following 1995 convictions for kidnapping and several sex-related offenses. His sentence included three consecutive one-year prior prison term enhancements under former Penal Code section 667.5, subdivision (b) (section 667.5(b)).
All further statutory references are to the Penal Code unless otherwise specified.
In this appeal, defendant challenges the 43-year aggregate sentence imposed on him after the trial court's recent determination that he was entitled to relief under section 1172.75. Defendant argues that the trial court erred by failing to exercise any sentencing discretion in a full resentencing hearing in accordance with section 1172.75. We affirm the court's order.
BACKGROUND
Defendant was convicted of one count of kidnapping (§ 207, subd. (a), count 1); four counts of lewd acts upon a child (§ 288, subd. (a), counts 2, 4, 5, &7); one count of forcible oral copulation (§ 288a, subd. (c), count 3); and two counts of forcible rape (§ 261, subd. (2), counts 6 &8). Following an appeal, the court imposed a sentence of 46 years in prison, which included three 1-year prior prison term enhancements under section 667.5(b). The court sentenced defendant consecutively on all counts, and it imposed the upper term for every count except counts 2, 4, 5, and 7.
It appears from the face of the abstract of judgment that the court in 1997 imposed one-third the midterm on counts 4, 5, and 7 (lewd acts upon a child). (§§ 288, subd. (a) [punishable by 3, 6, or 8 years in prison], 1170.1, subd. (a).) The abstract of judgment also reflects the imposition of an upper term of two years on count 2 (lewd act upon a child, § 288, subd. (a)), but the upper term on that count is eight years while the middle term is six years. (§ 288, subd. (a).) Thus, the two-year sentence for count 2 also appears to constitute one-third of the middle term (§ 1170.1, subd. (a)).
On October 31, 2022, the trial court issued a minute order recognizing defendant's eligibility for resentencing pursuant to section 1172.75. The court appointed counsel for defendant and set a hearing date.
On March 29, 2023, the parties appeared for resentencing. The court stated that the parties were there "pursuant to Penal Code section 1172.75 to address some priors imposed on [defendant] pursuant to 667.5(b)." It continued, "I reviewed a great deal of the record, particularly the documents reflecting all prior sentencing proceedings. I have reviewed the statute. I have reviewed most-the immediately past minutes of earlier proceedings where counsel was appointed and so forth and efforts were made to schedule today's date. I did not receive any points and authorities or any memorandum from counsel."
The court allowed defendant to speak, and he asked, "First of all, is this case reopened at the moment?" The court replied, "Well, only for the limited purpose of this Court to determine whether or not the three separate 667.5(b) priors, and that's a reference to the Penal Code, each of which resulted in a one year consecutive sentence added to the other components of your sentence, whether those should be stricken because those priors have been nullified by the legislature since your sentencing. [¶] So, your case is partially reopened but for that limited purpose. At least that's how I see it. Maybe I will ask Counsel." The court asked counsel, and neither disagreed. The court then explained, "So, Mr. Harnden, it's a limited reopening."
At that point, defendant began discussing a 1992 lawsuit that he filed against the district attorney, and the court interrupted, telling defendant that he was there for a discrete purpose. The court continued, "I don't intend to discuss in any elaborate detail unless your counsel or counsel for the People want me to discuss the facts underlying either of the charges or verdicts that were rendered by the jurors. I'm here solely to follow the directive of the legislature concerning this one particular statute that has increased your sentence by three years. And that directive from the legislature is for me to essentially strike those prison terms which are one year each, resulting in a three year reduction in your prison sentence." Defendant said he understood, and the court stated, "I'm not going to revisit the case in any other capacity."
After denying a Marsden motion, the court determined that defendant was entitled to relief under section 1172.75, subdivision (a). It then stated, "All right. And so it's my intention today ....[¶] It's my intention to strike those three priors and resentence him in accordance with that. And I would impose the sentence precisely as it was imposed on October 24, 1997, absent the application of the three [section] 667.5[ subdivision ](b) priors."
People v. Marsden (1970) 2 Cal.3d 118.
This statute provides, "Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid." (§ 1172.75, subd. (a).)
The court then cut off an interruption by defendant, stating, "One second. I'm only tasked with resentencing. I will-I'm going to allow counsel to comment on anything they wish regarding subdivision (d)(2) [of section] 1172.75. My review of the nature of [defendant's] convictions and in light of the intervening action by the Court of Appeal, I do not believe there's been any other statutory changes that would result in a reduction of his sentence. And I'm going to ask each counsel to address that." The People responded that defendant was not entitled to other relief, but pointed out that there was an amended 2011 abstract of judgment on file. The court reviewed that abstract, and announced, "Great. So, it would be my intention to sentence him identically absent the 667.5(b) priors." The court invited counsel to comment. The People requested that the court sentence defendant as the court had indicated, and defense counsel stated that he did not believe that his client was entitled to "any further relief than what's being done today." The court also allowed defendant to comment.
The court then announced that, absent further comment from counsel, it was striking the section 667.5(b) enhancements, it directed that a new abstract of judgment be prepared to reflect the resentencing, and then it orally imposed a 43-year aggregate term comprised of the following consecutive sentences: 11 years on count 1; 8 years on counts 3, 6, and 8; and 2 years on counts 2, 4, 5, and 7. When defendant questioned what the "one-third meant," in the court's oral pronouncement of judgment, the court explained that, if there was going to be a consecutive term on certain counts, the law required that the court impose one-third of the midterm. The court again afforded the parties the opportunity to comment, both declined, and the court concluded the proceeding.
Defendant timely appealed.
DISCUSSION
Section 1172.75Before January 1, 2020, trial courts were required to impose a one-year sentence enhancement for each true finding on an allegation that the defendant had served a separate prior prison term and had not remained free of custody for at least five years. (Former § 667.5, subd. (b).) Senate Bill No. 483 (2021-2022 Reg. Sess.) added section 1171.1 to the Penal Code (Stats. 2021, ch. 728), which was subsequently renumbered without substantive change as section 1172.75. (Stats. 2022, ch. 58, § 12, eff. June 30, 2022.) Section 1172.75 states that "[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense . . . is legally invalid." (§ 1172.75, subd. (a).)
Section 1172.75, subdivision (b) instructs the California Department of Corrections and Rehabilitation to identify those persons in custody currently serving a term for a judgment that includes an enhancement described under section 1172.75, subdivision (a), and provide such information to the sentencing court that imposed the enhancement. (§ 1172.5, subd. (b).) Subsequently, the sentencing court "shall review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a)." (§ 1172.5, subd. (c).) "If the court determines that the current judgment includes an enhancement described in subdivision (a), the court shall recall the sentence and resentence the defendant." (Ibid.)
The resentencing "shall result in a lesser sentence than the one originally imposed . . . unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety." (§ 1172.75, subd. (d)(1).) In resentencing, "[t]he court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing." (§ 1172.75, subd. (d)(2).) "The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant's risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice." (§ 1172.75, subd. (d)(3).) "Unless 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." (§ 1172.75, subd. (d)(4).) The court "shall appoint counsel" for the resentencing. (§ 1172.75, subd. (d)(5).)
Thus, if the statutory conditions are met, Sen. Bill No. 483 entitles a defendant with a qualifying enhancement to a full resentencing. (People v. Monroe (2022) 85 Cal.App.5th 393, 402 ["By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly 'invalid' enhancements."].)
Analysis
Defendant argues that the court violated his right to a full resentencing under section 1172.75 by conducting a limited resentencing wherein the court believed it could only strike the section 667.5(b) enhancements. Citing People v. Scott (1994) 9 Cal.4th 331, 351, the Attorney General counters that defendant forfeited his challenge. The Attorney General also argues that the court afforded defendant the opportunity to advocate for a lesser sentence and exercised its discretion in a full resentencing proceeding. On the record presented, we find that defendant forfeited his claim.
Under the forfeiture doctrine, a reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. (People v. French (2008) 43 Cal.4th 36, 46.) The forfeiture doctrine has been applied to sentencing decisions. "In order to encourage prompt detection and correction of error, and to reduce the number of unnecessary appellate claims, reviewing courts have required parties to raise certain issues at the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits or waives the claim. [Citations.] These principles are invoked as a matter of policy to ensure the fair and orderly administration of justice." (People v. Scott, supra, 9 Cal.4th at p. 351, italics added by Scott.)
The forfeiture doctrine applies here. (See People v. Weddington (2016) 246 Cal.App.4th 468, 491 [claim that court was unaware it had discretion to impose a misdemeanor rather than a felony sentence forfeited by failure to object].) The trial court determined that defendant was eligible for relief under section 1172.75, indicated that it would strike the section 667.5(b) enhancements and impose a 43-year aggregate sentence, and invited the parties to comment on the intended sentence multiple times. Defendant never objected to the intended sentence or argued that the court erred by only striking the section 667.5(b) enhancements. The policy rationale behind the forfeiture doctrine is furthered here where an objection could easily have brought the alleged error to the court's attention for correction.
The language requiring resentencing in section 1172.75 is clear, and People v. Monroe, supra, 85 Cal.App.5th 393, was decided prior to defendant's resentencing hearing.
Defendant does not dispute that the forfeiture doctrine applies to his claim of error, instead arguing in his opening brief that we should not find forfeiture because his counsel's actions did not rise to the level of invited error, or, alternatively, that his counsel was prejudicially ineffective for failing to object. These contentions lack merit.
The doctrine of invited error does not excuse defendant's forfeiture. Invited error and forfeiture are distinct doctrines. (See San Mateo Union High School Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418, 436 [discussing the different doctrines]; People v. Hampton (2022) 74 Cal.App.5th 1092, 1103 [same].)" 'The" 'doctrine of invited error' is an 'application of the estoppel principle': 'Where a party by his conduct induces the commission of error, he is estopped from asserting it as a ground for reversal' on appeal." [Citation.] The purpose of the doctrine is to "prevent a party from misleading the trial court and then profiting therefrom in the appellate court." '" (San Mateo Union High School Dist., at p. 436.) The Attorney General does not argue that defendant's appellate challenge fails because he invited the error at issue, and the doctrine does not alter our conclusion that defendant forfeited his claim.
As for ineffective assistance of counsel, defendant fails to establish such a claim. Defendant must show that his counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and the deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel's failings, the result would have been more favorable. (In re Champion (2014) 58 Cal.4th 965, 1007.) As defendant does not mention or attempt to establish prejudice, his claim fails. (Strickland v. Washington (1984) 466 U.S. 668, 697 [if it is easier to dispose of an ineffective assistance of counsel claim on the ground of lack of sufficient prejudice, that course should be followed].)
We also reject the conclusory assertion in defendant's reply brief that forfeiture does not apply because" '[t]he court's duty to apply the correct law is not dependent upon counsel and is not waived by counsel's failure to object to the error.'" For support, defendant cites People v. Tapia (1994) 25 Cal.App.4th 984, 1030-1031, but Tapia is inapposite. Tapia found that the invited error doctrine does not apply to per se prejudicial Batson/Wheeler error, and, in so determining, discussed cases that address the application of invited error to claims of criminal instructional error. (Tapia, at pp. 1030-1031, citing People v. Graham (1969) 71 Cal.2d 303, 318 &People v. Wickersham (1982) 32 Cal.3d 307, 330-335.) An objection is not required to review an error in giving or refusing to give instructions in criminal cases" 'if the substantial rights of the defendant were affected thereby.'" (6 Witkin, Cal. Criminal Law (4th ed. 2023) Reversible Error, § 43.) Defendant provides no argument for why this rule should be applied here, where no claim of instructional error exists. In sum, defendant presents no meritorious reason to excuse his forfeiture.
Batson v. Kentucky (1986) 476 U.S. 79, 84-89, and People v. Wheeler (1978) 22 Cal.3d 258, 276-277.
DISPOSITION
The resentencing order is affirmed.
WE CONCUR: STREETER, J., GOLDMAN, J.