Opinion
NOT TO BE PUBLISHED
Lake County Super Ct. No. CR912628
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Appellant James Doyle Henson challenges his conviction for failing to register as a sex offender in violation of former Penal Code section 290, subdivision (a)(1)(A). His primary contention is the trial court erred by failing to consider a report prepared by Dr. Douglas Rosoff when it denied his Romero motion. Appellant claims the court abused its discretion by sentencing him to the upper term because it failed to consider mitigating evidence, specifically Dr. Rosoff’s report. Finally, he contends he received ineffective assistance of counsel because his attorney failed to bring Dr. Rosoff’s report to the attention of the court at the sentencing hearing.
Unless otherwise noted, all further statutory references are to the Penal Code. The Legislature amended section 290 in October 2007. The version of section 290, subdivision (a)(1)(A) in effect in April 2007, when appellant was charged, provided in relevant part: “Every person described in paragraph (2), for the rest of his or her life while residing in California... shall be required to register with the chief of police of the city in which he or she is residing... within five working days of coming into, or changing his or her residence within, any city, county... in which he or she resides.”
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 508 (Romero). In Romero, the California Supreme Court “‘held that a trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, “in furtherance of justice” pursuant to... section 1385(a).’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 373, quoting People v. Williams (1998) 17 Cal.4th 148, 158.) Section 1385,
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 1987, appellant was convicted of committing a lewd or lascivious act with a child under the age of 14 in violation of section 288, subdivision (a). As a result, he was required to register as a sex offender in California.
In April 2007, Clearlake police officers received a report of a domestic disturbance at a residence in Clearlake. When the officers arrived, they found appellant in one of the bedrooms; he told them he was taking care of his mother-in-law and her medical issues were the cause of the disagreement. The police learned appellant was a registered sex offender in California and his last registration address was in Oregon. Appellant told the officers he had not registered in California because he was merely traveling through the area. Shortly thereafter, the officers learned appellant had been living in Clearlake since December 2006.
In April 2007, the prosecution filed a complaint charging appellant with one count of failing to register as a sex offender in violation of former section 290(a)(1)(A). The complaint also alleged appellant had prior convictions for violations of section 288 in 1987 and had served two prior prison terms.
Dr. Rosoff’s Report
In September 2007, defense counsel declared a doubt about appellant’s competency and the court appointed Dr. Douglas Rosoff to evaluate his competency and prepare a written report. In October 2007, Dr. Rosoff evaluated appellant and prepared a report that noted appellant “and his family were suffering from significant medical issues including brain trauma from a 9/04 bicycle accident, his wife’s aneurysm and mother in law’s poor health” when appellant moved to Lake County in early 2007.
According to the report, appellant “was run over by a car while riding his bike in Idaho Falls in 9/04. He was comatose for two months and sustained permanent brain damage. He suffers from seizures, memory problems, problems concentrating and poor attention span. He has been treated at fifteen hospitals... and has maintained on anticonvulsant medication.... Upon relocating from Idaho Falls to Clearlake in early 2007... he was without prescription medication.” The report also noted, however, appellant “understands the lifetime requirement to register and had registered for twenty years following his conviction in 1987.... He said he ‘was not thinking straight’ upon arriving in California and was focused on his wife’s and mother in law’s medical problems.”
Dr. Rosoff concluded appellant was competent to stand trial. He explained that appellant “sustained serious head trauma in 9/04 when struck while riding his bicycle by a car. His brain damage results in blackouts, memory problems, poor concentration and seizures. Psychosocial stressors associated with his family’s medical problems may be a contributing factor in his failure to register as a sex offender as he had complied with registration requirements previously. His neurological condition is reasonably stable at the present time and would not interfere with his capacity to continue with his criminal proceedings.” At a hearing in November 2007, the court [Judge Stephen Hedstrom] admitted Dr. Rosoff’s report into evidence and concluded appellant was “competent to stand trial.”
Appellant’s Romero Motion and the Sentencing Hearing
In March 2008, appellant pleaded no contest to failing to register as a sex offender (former § 290). He admitted two prior prison terms and one strike allegation in exchange for a maximum sentence of eight years. Two months later, appellant filed a Romero motion urging the court to strike his prior conviction. Appellant argued the following factors justified striking the prior conviction: (1) “the relatively minor nature of the present offense;” (2) “the remoteness of [his] serious criminal record;” and (3) “his history of neurological medical problems[.]” According to appellant, his failure to register as a sex offender was the “result of being distracted by serious neurological problems stemming from a head injury and other medical conditions that [a]ffect his memory and mental functioning, further evidence supporting which will be presented at sentencing.”
The probation report recommended sentencing appellant to eight years in state prison (the upper term of three years, doubled (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)) and enhanced by two years (§ 667.5, subd. (b)). The report chronicled appellant’s lengthy criminal history: from 1977 to 1998, appellant was convicted 10 times for various offenses, including misdemeanor petty theft; unlawful sexual intercourse; escape; resisting arrest; loitering, disorderly conduct/soliciting a lewd act; giving false identification to a police officer; and several various alcohol-related Vehicle Code violations. And from 1975 to 1997, appellant suffered felony convictions for grand theft, being a felon in possession of a controlled substance; and lewd and lascivious acts with a child under 14. The report noted the following circumstances in aggravation: (1) appellant engaged in violent conduct which indicated a danger to society; (2) appellant’s prior convictions were “numerous or of increasing seriousness;” (3) appellant had served a prior prison term; and (4) appellant’s prior performance on probation or parole was unsatisfactory.
The probation report noted appellant’s physical and mental health as “good” but indicated appellant “was hit by an automobile while he was riding a bicycle in September 2004. He was in a coma for over 90 days. He suffers from seizures since that time. He has also been diagnosed as bi-polar. [¶] During the probation interview, [appellant] indicated that his current medications are working very well for him. He states his ability to concentrate and remember events has significantly improved.” The report also contained a lengthy statement where appellant described some of his medical problems, including the 2004 accident where he went into a coma after being “run over... by a big SUV[.]”
At the hearing on appellant’s Romero motion, defense counsel noted appellant had a “long medical history... He’s got a history of head trauma, coma, epilepsy. Surely, those are conditions that can affect a person’s short-term memory... regard[ing] ministerial tasks, which is, in essence, what was involved here in the... failure to... register.” At defense counsel’s request, the court admitted an August 2007 report from David King-Stephens, M.D., of the Pacific Epilepsy Program into evidence. The report stated that appellant “has a history of head trauma with coma and epilepsy, with the last seizure on 7/30/07. The patient is taking Dilantin, Prozac, Motrin and Tagamet.” It also stated that appellant’s August 2007 EEG was normal.
At the request of defense counsel, the court also admitted appellant’s handwritten letter addressed to the court. In the letter, appellant stated he was “smash[ed] end over end, off of [his] bicycle by one big SUV vehicle...” in September 2004 and, since then, has “had some incapacitating problems!” He explained the accident caused “serious traumatic brain injury” and 95 days of “total brain oblivion blackout.” He also noted that his wife had experienced medical problems and described the toll these medical problems had taken on their lives.
After hearing argument from counsel, the court summarized the information in appellant’s letter, noting that appellant stated, “he was hit by an automobile while he was riding a bicycle in 2004, and that he was in a coma for over 90 days; that he suffers from seizures since that time; that he’s been diagnosed as bipolar....” The court noted its awareness that California Rules of Court, rule 4.423(b)(2) (hereafter rule) provided a mitigating factor where a defendant suffers from a mental or physical condition that significantly reduces his or her culpability for the crime, but it expressed difficulty finding a causal connection between appellant’s medical issues and his failure to register as a sex offender. As the court explained, “on the basis of what I’ve got before me, [appellant’s] got a significant medical issue. But to say that there’s some connection between that medical issue and the failure to register... is a statement without any proof. He was able to register for 21 years. He stated to the officers that he didn’t live here.... [H]e didn’t say, well, I forgot to register, or I’ve got this mental problem.... There is absolutely nothing before me that establishes even a tenuous link between the two.” The court then denied the Romero motion.
In its lengthy comments on the record, the court summarized appellant’s extensive criminal record — 10 misdemeanor convictions and five felony convictions over a roughly 20-year period — and his “abysmal” performance on probation and parole. The court also considered the circumstances in aggravation and mitigation set forth in rules 4.421 and 4.423.
Following the denial of appellant’s Romero motion, defense counsel requested a midterm sentence. The court listened to a lengthy statement made by appellant. It then noted a circumstance in mitigation — appellant’s early acknowledgment of wrongdoing — and outlined the aggravating circumstances, specifically appellant’s criminal record and his unsatisfactory performance on probation and parole. Then it imposed the upper term of three years, doubled, and two one-year terms for appellant’s prior prison terms.
DISCUSSION
Appellant’s Claims Regarding His Romero Motion Fail
Appellant’s main contention is the court abused its discretion “by denying [his] Romero motion without considering Dr. Rosoff’s report.” According to appellant, the court “failed to rule on the Romero motion in an informed manner because it did not consider Dr. Rosoff’s report.” This argument suffers from at least three fatal flaws.
First, Dr. Rosoff’s report does not, as appellant suggests, “causally link[ ]” appellant’s “brain injury and memory problems and his failure to register.” As noted above, Dr. Rosoff prepared his report to evaluate appellant’s competency, not to opine whether appellant’s brain injury caused him to forget to register as a sex offender. In his report, Dr. Rosoff acknowledged appellant suffered from “significant medical issues including brain trauma,” that he had some memory problems, and that “[p]sychosocial stressors associated with his family[‘s] medical problems may be a contributing factor in his failure to register... as he had complied with registration requirements previously.” Dr. Rosoff concluded, however, that appellant was competent to stand trial.
Nowhere in his report does Dr. Rosoff conclude the 2004 bike accident and appellant’s neurological injuries somehow caused him, in 2007, to forget to register as a sex offender. Rather, Dr. Rosoff’s report noted appellant understood the registration requirement — and had previously registered for at least 20 years — but failed to comply when he moved to California because “he ‘was not thinking straight’ upon arriving in California and was focused on his wife’s and mother in law’s medical problems.” Simply stated, Dr. Rosoff’s report does not support the conclusion that appellant’s brain injury and memory problems caused him to forget to register as a sex offender.
Second, we reject appellant’s argument that the court “did not at all consider” Dr. Rosoff’s report. The court did not, as appellant suggests, “read into the record all evidence it considered in making its sentencing choices.” The court did not list the evidence it was considering; it merely described the probation report and appellant’s letter. That the court focused on the probation report and appellant’s letter does not mean that the court considered only those pieces of evidence. (See People v. Myers (1999) 69 Cal.App.4th 305, 310.) We also note that the judge who sentenced appellant was the same judge who presided over the competency proceedings.
Finally, the cases upon which appellant relies to support this argument are inapposite. Citing People v. Ruiz (1975) 14 Cal.3d 163, 168, appellant contends he is entitled to a new sentencing hearing because the trial court based its decision on a “factually inaccurate view” of his background. In Ruiz, the California Supreme Court reversed the defendant’s conviction for possession of heroin for sale because the trial court failed to instruct the jury on specific intent to sell. (Id. at p. 165.) The court ordered the trial court to modify the conviction to provide that the defendant was guilty of simple possession and to conduct a new sentencing hearing. (Id. at p. 168.) Ruiz does not assist appellant for the obvious reason that it is completely factually distinguishable.
We are similarly unpersuaded by appellant’s reliance on People v. Alvarez (2002) 95 Cal.App.4th 403, 409. In that case, the trial court sentenced the defendant “under the mistaken impression he was presumptively ineligible for probation under section 1203.” (Alvarez, supra, at p. 409.) The Alvarez court concluded the defendant did not personally use a deadly weapon within the meaning of section 1203, subdivision (e)(2) and remanded for resentencing. (Alvarez, supra, at p. 409.) Alvarez has no application here. Here, the court was not operating under any “mistaken assumption.” There was ample evidence before the court that appellant had a traumatic brain injury in 2004. In fact, the court explicitly stated that it was aware that appellant suffered from “a significant medical issue.” What was not before the court, however, was evidence that the brain injury caused appellant to fail to register.
Assuming for the sake of argument that Dr. Rosoff’s report did, as appellant contends, conclude appellant’s brain injury and memory problems caused him to fail to register, we would not reach a different conclusion. “[A] court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (Carmony, supra, 33 Cal.4th at p. 374.) To establish an abuse of discretion, “[i]t is not enough to show that reasonable people might disagree about whether to strike [a] prior conviction[ ]. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance. [Citation.]” (Myers, supra, 69 Cal.App.4th at p. 310; see also Carmony, supra, at pp. 376-377.)
Here, the trial court balanced the relevant facts and concluded appellant was not outside the spirit of the Three Strikes Law. The court considered appellant’s lengthy criminal history — 15 convictions over a 22-year period — and the circumstances of his current offense. It contemplated appellant’s background, age, and his medical issues; it concluded appellant’s “prospects for a stable life [were] poor” and that he “may not be deemed outside the strike scheme spirit[.]” The court was well within its discretion to deny appellant’s Romero motion in light of the overwhelming factors demonstrating that appellant was not outside the spirit of the Three Strikes Law.
For the reasons set forth above, we also reject appellant’s contention that the denial of his Romero motion “without consideration of the key evidence” — specifically, Dr. Rosoff’s report — violated his federal due process rights. The court properly denied appellant’s Romero motion and, in doing so, did not violate appellant’s federal due process rights.
The Court Did Not Abuse Its Discretion by Sentencing Appellant to the Upper Term
As noted above, the court found appellants’ prior record, prior prison terms, and unsatisfactory performance on probation or parole as circumstances in aggravation. (Rule 4.421.) The court noted appellant acknowledged his responsibility early in the case by pleading no contest, but gave this mitigating factor limited weight because appellant’s plea agreement had already created a significant benefit for him.
Appellant argues the court erred in sentencing him to the upper term. The crux of his claim is that Dr. Rosoff’s report was “clearly mitigating evidence” and the trial court should have considered it in selecting the appropriate term of imprisonment. We disagree. It is well settled that “unless the record affirmatively shows otherwise, a trial court is deemed to have considered all relevant criteria in... making [a] discretionary sentencing choice.” (People v. Weaver (2007) 149 Cal.App.4th 1301, 1318, citing rule 4.409.) Here, the court considered — and rejected — appellant’s contention that his medical issues were a circumstance in mitigation.
Moreover, appellant has failed to show a reasonable probability that the court would have reached a different conclusion in the absence of this alleged error. (Weaver, supra, 149 Cal.App.4th at pp. 1318-1319; People v. Price (1991) 1 Cal.4th 324, 492, superseded by statute on other grounds in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1162.) Assuming for the sake of argument that the court erred by not considering Dr. Rosoff’s report, appellant has not — and cannot — demonstrate it was reasonably probable the court would have imposed a lower term had it considered the report. Appellant’s argument simply ignores the overwhelming factors in aggravation. (See People v. Osband (1996) 13 Cal.4th 622, 728 [“Only a single aggravating factor is required to impose the upper term....”].)
The court did not abuse its discretion by imposing the upper term. To establish an abuse of discretion, appellant has the burden to show “that the sentencing decision was irrational or arbitrary.” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.) “In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’” (Id. at pp. 977-978.) Here, the court considered the mitigating and aggravating factors; it acted well within its discretion in imposing the upper term.
Appellant’s two sentence argument that the court violated his due process rights in sentencing him to the upper term has no merit. Appellant does not support the argument with any relevant California authority, and bases the argument on his faulty premise that the court “fail[ed] to consider Dr. Rostoff’s report.”
Appellant’s Ineffective Assistance of Counsel Claim Fails
Appellant’s final claim is trial counsel rendered ineffective assistance of counsel by failing to bring Dr. Rosoff’s report to the attention of the trial court. It is reasonably probable, according to appellant, that the court would have granted his Romero motion or selected a lower term of imprisonment if it had been aware of Dr. Rosoff’s report.
“There are two components to an ineffective assistance of counsel claim: deficient performance of counsel and prejudice to the [defendant].” (In re Cox (2003) 30 Cal.4th 974, 1019 (Cox).) To prevail on a claim of ineffective assistance of counsel, the defendant must establish that “counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms.” (People v. Williams (1997) 16 Cal.4th 153, 214; People v. Cunningham (2001) 25 Cal.4th 926, 1003.) The defendant must also “show prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]” (Williams, supra, at p. 215.)
The California Supreme Court has held that a defendant who raises the issue of ineffective assistance of counsel on appeal “must establish deficient performance based upon the four corners of the record. ‘If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.’” (Cunningham, supra, 25 Cal.4th at p. 1003, quoting People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.) For this reason, “claims of ineffective assistance are often more appropriately litigated in a habeas corpus proceeding....” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.)
The record here sheds no light on why defense counsel declined to submit the Rosoff report at the sentencing hearing. The record does, however, demonstrate that appellant was not prejudiced by counsel’s alleged shortcoming. (Cox, supra, 30 Cal.4th at pp. 1019-1020 [court deciding ineffective assistance of counsel claim need not address both components of claim if defendant makes insufficient showing on one].) As noted above, Dr. Rosoff’s report did not link appellant’s memory problems to his failure to register. Even if we assume the report did link appellant’s memory problems to his failure to register and that the court failed to review the report, it is not reasonably probable the court would have granted the Romero motion or imposed a lesser term of imprisonment.
DISPOSITION
The judgment is affirmed.
We concur: Simons, J., Bruiniers, J.
subdivision (a) provides in relevant part that “[t]he judge... may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dimissed.”