Opinion
F078299
10-21-2019
THE PEOPLE, Plaintiff and Respondent, v. JORGE ROZAR, Defendant and Appellant.
Kristine Koo, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CR-03532)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Merced County. Jeanne E. Schechter, Judge. Kristine Koo, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Franson, J.
-ooOoo-
A jury convicted appellant Jorge Rozar of making criminal threats (Pen. Code, § 422, subd. (a); count 2) and dissuading a witness by force (§ 136.1, subd. (b)(1); count 3). In a separate proceeding, the court found true allegations that Rozar had a prior conviction within the meaning of the "Three Strikes" law (§ 667, subd. (b)-(i)). On appeal, Rozar contends he was denied the effective assistance of counsel during sentencing. We affirm.
We note that the record contains several variations of appellant's name, including George Rojas, Jorge Rojas, Jorge Rozar, and Jorge A. Rozar. To avoid confusion, we adopt the name that appears on the abstract of judgment, Jorge Rozar.
All further statutory references are to the Penal Code.
Count 1, assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4), was dismissed on the People's motion on the third day of trial.
FACTS
The Trial
The prosecution evidence established that on June 15, 2017, Soledad B. was in her party supply store when Rozar walked in and sat at a table. Rozar was barefoot, his feet were bleeding, and he looked aggressive. Soledad asked him to leave because she felt afraid. Rozar refused, stating he was an American citizen. When Soledad threatened to call the police, Rozar became furious and responded, "If you call the police, I am going to kill you." He picked up a chair and threw it about 15 feet and then laid down at the store's entrance. Soledad ran into a neighboring store and the clerk locked the door.
Soledad and the clerk could hear loud noises coming from the party supply store. The clerk called for help and Merced County Sheriff's Deputy Simon Sarkis soon arrived and spoke with Rozar outside. The clerk opened her door and Soledad went outside. However, Rozar began yelling and following Soledad, so she went back into the store with the clerk. The women then struggled to lock the door as Rozar yelled that he knew who they were and that he was going to come back and kill them.
Deputy Sarkis testified Rozar was angry and agitated, rambling and incoherent, and seemed to be under the influence of methamphetamine. Rozar told Sarkis he was going to kill him and called him a derogatory name several times. Sarkis tried to engage Rozar in conversation to see if he could calmly get him into handcuffs. When Rozar again tried to get into the neighboring store, Sarkis called out to him to come back. Eventually, Rozar stopped tugging at the door and Sarkis began speaking with him again. Other officers arrived and Rozar was taken into custody.
Dr. Phillip Hamm testified for the defense. He evaluated Rozar in August 2017 and diagnosed him with bipolar disorder with manic and psychotic features that would result in mania, depression, or both. Dr. Hamm described mania as a mental state that involves a speeding up of behavior and thoughts. The primary symptoms of mania are rapid thought processes, accelerated thinking, feeling full of energy or euphoria, and behaving in an outrageous or out-of-control way. In severe cases, the person becomes paranoid, is unable to think rationally or logically, and sometimes hallucinates.
Rozar testified that he had been committed to Napa State Hospital and had been released to a group home in Sacramento on the Central Valley Conditional Release Program. However, he absconded from the program and had been off his medications since May 3, 2017. He also had a warrant for his arrest. When he committed the charged offenses, he felt he could not control his impulses and was hearing voices.
Rozar did not recall throwing a chair or threatening Soledad and denied threatening Deputy Sarkis.
Probation Report
Rozar's probation report indicated that in addition to his juvenile adjudication for a 1991 robbery, he was convicted in Idaho in 1994 and sentenced to prison for burglary, grand theft, and misdemeanor malicious injury to property. In 2003, he was committed to the California State Hospital after being found not guilty by reason of insanity of two felonies, resisting an executive officer by force and vandalism, and two misdemeanors, resisting arrest and driving with a suspended or revoked license.
The report cited as circumstances in aggravation that the crime involved the threat of great bodily harm (Cal. Rules of Court, rule 4.421(a)(1)), Rozar threatened witnesses (rule 4.421(a)(6)), engaged in violent conduct that indicated a serious danger to society (rule 4.421(b)(1)), and served a prior prison term (rule 4.421(b)(3)). The report did not cite any circumstances in mitigation (rule 4.423).
All further references to rules are to the California Rules of Court.
Sentencing
Prior to sentencing, defense counsel filed a Romero motion asking the court to strike Rozar's prior conviction. In granting the motion at Rozar's sentencing hearing on October 22, 2018, the court considered his "very serious mental illness" a mitigating factor.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497. --------
Afterwards, in arguing for the appropriate term, the following colloquy occurred:
"[THE PROSECUTOR]: The People would be asking for [the] upper term especially since the Court has now given him a pretty big break by striking the strike. His maximum was six. It's now three, so we would be asking for the maximum of three years.
"THE COURT: [Defense counsel], any comments?
"[DEFENSE COUNSEL]: Well, I think we would ask for the Court to consider the middle term in light [of] his extensive mental health history.
"And I know he—[Jorge] spoke himself about being institutionalized for quite some time, for around 15 years. And to be fair, I mean one can pick up offenses while in the state hospital. And I don't think that has happened, as far as I know, I mean, as far as a prosecutor getting involved. So there is something to be said about that, and him being non-violent while institutionalized. Submit it.
"[THE PROSECUTOR]: If I could just briefly respond.... Let me start by saying I think that the Court has already taken his mental status into consideration by granting him the Romero [m]otion.... [¶] ... [¶]" (Italics added.)
In imposing aggravated terms on both counts, the court stated:
"In reviewing the [R]ules of [C]ourt 4.421, I do find [as] aggravating factors that the crime did involve a threat of great bodily harm and witnesses were threatened or attempted to or unlawfully prevented the situated. [sic] For example, reporting to the police and that you engaged [in] violent conduct. That indicates a serious danger to society. You suffered a prior prison term. Even finding mitigating factors other [than] the mental health issue, but again I found that to be a mitigating factor when striking your strike, so I don't think the Court's going to use that here.
"So[,] I do think the appropriate sentence in this matter and the just sentence is the upper term ...." (Italics added.)
The court then sentenced Rozar to the aggravated term of three years on his conviction in count 2 for making criminal threats and a stayed, aggravated term of three years on his dissuading a witness conviction in count 3.
DISCUSSION
Rozar contends the trial court did not understood it had discretion to use the same mitigating circumstance, i.e., his mental illness, to both strike his prior strike and to impose a lesser term than the aggravated term. Thus, according to Rozar, he was denied the effective assistance of counsel at his sentencing hearing by defense counsel's failure to: (1) object to the court's statement that it had already considered Rozar's mental status and (2) explain to the court that there was "no valid basis for refusing to apply the same mitigating circumstance twice." We disagree.
The Court Understood its Sentencing Discretion
A trial court's exercise of its discretion in selecting a lower, middle, or upper term sentence under section 1170.1 is subject to review for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) To determine the appropriate sentence, the trial court weighs the factors in aggravation, found in rule 4.421, against those in mitigation, found in rule 4.423. (See rule 4.420(b) [trial court may consider circumstances in aggravation and mitigation "and any other factor reasonably related to the sentencing decision"].) The relevant rules also permit the trial court to consider factors not specifically enumerated in rules 4.421 and 4.423. (Rules 4.408, 4.420(b).)
The prosecutor argued that the court should impose the aggravated term because it had already given Rozar "a pretty big break" by taking his mental illness into account in striking his prior strike conviction. Defense counsel argued that the court should consider his mental illness as a mitigating circumstance for purposes of what term to impose. Thus, neither party argued that the court did not have discretion to consider Rozar's mental illness a mitigating circumstance more than once in making its sentencing choices.
Moreover, the court did not state that it could not consider Rozar's mental illness in determining what term to impose. Instead, it clearly stated that it was not going to use Rozar's mental illness as a mitigating factor in selecting the term of imprisonment because it had already used it to strike his strike conviction. Thus, the record does not support Rozar's contention that the court misunderstood that it could consider his mental illness as a mitigating circumstance in both decisions - whether to strike Rozar's prior conviction and what term to impose.
Further, since the court found several aggravating circumstances that are supported by the record, the court did not abuse its discretion when it imposed the aggravated terms on Rozar's convictions. (People v. Black (2007) 41 Cal.4th 799, 813 ["Under California's determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term"; People v. Forster (1994) 29 Cal.App.4th 1746, 1758 [single factor is sufficient to justify the court's sentencing choice].)
Rozar was not Denied the Effective Assistance of Counsel
"To prevail [on an ineffective assistance of counsel claim], defendant must first show that ' "counsel's representation fell below an objective standard of reasonableness ... under prevailing professional norms." ' [Citations.] Second, defendant must show that the inadequacy was prejudicial, that is, ' "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." ' " (People v. Diaz (1992) 3 Cal.4th 495, 557.)
"Sentencing courts have wide discretion in weighing aggravating and mitigating factors. [Citation.] Indeed, a trial court may 'minimize or even entirely disregard mitigating factors without stating its reasons.' " (People v. Lai (2006) 138 Cal.App.4th 1227, 1258.) The court is not required to review in detail each of the mitigating factors upon which the defendant relies. It can reject all mitigating factors without explanation. (See People v. Avalos (1996) 47 Cal.App.4th 1569, 1583 [court need not explain its reasons for rejecting mitigating factors].) Thus, the court clearly acted within its discretion when it declined to consider Rozar's mental illness as a mitigating circumstance in determining what term to impose.
Defense counsel successfully argued that the court should consider Rozar's mental illness a mitigating factor in ruling on her Romero motion. She also argued, albeit unsuccessfully, that the court should consider Rozar's mental illness a mitigating factor in determining what term to impose. Since the court understood that it could also consider Rozar's mental illness in determining what term to impose, an objection would have been futile. Accordingly, we reject Rozar's contention that he was denied the effective assistance of counsel. (People v. Jones (1979) 96 Cal.App.3d 820, 827 [counsel is not required to make futile objections or advance meritless arguments].)
DISPOSITION
The judgment is affirmed.