Opinion
D073661
10-16-2018
THE PEOPLE, Plaintiff and Respondent, v. TREVOR NEIL SCHMIDT, Defendant and Appellant.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD269629) APPEAL from a judgment of the Superior Court of San Diego County, Louis Hanoian, Judge. Affirmed. Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Trevor Neil Schmidt guilty of one count of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)), and one count of battery with serious bodily injury (§ 243, subd. (d)). As to both counts, the jury further found that Schmidt personally inflicted great bodily injury. (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8).) The trial court made a finding that Schmidt had incurred three prison priors. (§ 667.5, subd. (b).) The trial court sentenced Schmidt to prison for a term of 10 years. In imposing sentence, the trial court selected an upper term sentence, finding no circumstances in mitigation connected to the case, and identifying numerous aggravating factors.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Schmidt contends that the trial court abused its discretion in imposing an upper term sentence because it failed to consider his mental illness as a mitigating factor. We conclude that the argument lacks merit, and we affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of November 1, 2016, underneath San Diego's Ocean Beach pier, Schmidt punched and kicked Danny F. multiple times, causing Danny F. to lose consciousness and suffer multiple facial fractures. A nearby security camera recorded the assault, and the recording was played for the jury at trial.
To protect the privacy of the victim of Schmidt's crime, we refer to him by his first name and last initial, and we intend no disrespect by doing so.
Schmidt and Danny F. did not know each other and gave different accounts at trial of the circumstances leading up to the assault. According to Danny F., who is middle-aged, weighs 440 pounds, and walks with a cane, he was "pretty drunk" when he was attacked while standing up under the pier. The attacker hit him on the face and head, rendering him unconscious, and then started attacking him again after he regained consciousness. Danny F. did not know who attacked him or why he was attacked.
According to Schmidt's testimony, he was taking a walk on the beach when he stopped to chat with Danny F. under the pier. Schmidt testified that Danny F. motioned for him to lean in closer and whispered something to him indicating a gang affiliation. According to Schmidt, Danny F. then unexpectedly punched him. Schmidt responded by returning the punch, causing Danny F. to fall down. Danny F. said he was going to kill Schmidt, so Schmidt punched Danny F. again. After the second punch, Danny F.'s back was on the ground, and Schmidt continued to strike him. At one point, Schmidt started to leave the area, but Danny F. said something threatening, so Schmidt returned to "neutralize" Danny F. by further attacking him. Schmidt admitted that during the course of the assault, he punched, kicked and stomped on Danny F. multiple times.
An amended information charged Schmidt with assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)), and battery with serious bodily injury (§ 243, subd. (d)), and also alleged in both counts that Schmidt personally inflicted great bodily injury (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)).
Prior to trial, the court twice suspended proceedings due to doubts about Schmidt's mental competency to stand trial.
First, on February 6, 2017, as trial was about to begin, Schmidt's attorney made a motion to suspend the proceedings pursuant to section 1368 to evaluate Schmidt's mental competency to stand trial, which the trial court granted. A psychiatric evaluation of Schmidt performed on March 14, 2017, stated that Schmidt's thought process was tangential and disorganized, and concluded that Schmidt did not have the capacity to understand the nature of the criminal proceedings or to cooperate with his attorney. Based on that evaluation, on April 3, 2017, the trial court found that Schmidt was not mentally competent to stand trial and committed him to Patton State Hospital. On July 10, 2017, based on a further mental health evaluation dated June 19, 2017, the trial court found that Schmidt had become competent to stand trial, and it set a trial date. Although concluding that Schmidt was competent to stand trial, the June 19, 2017 report diagnosed Schmidt with "Unspecified Schizophrenia Spectrum or Other Psychotic Disorder."
Next, when trial began on October 2, 2017, the trial court again suspended proceedings pursuant to section 1368 based on a motion by defense counsel and ordered that Schmidt's mental competency to stand trial be evaluated by a psychiatrist. The trial court based its suspension of proceedings on information that Schmidt had stopped taking his psychiatric medication, and on defense counsel's statement that Schmidt had exhibited paranoid delusions that raised doubts about his mental competency. On December 6, 2017, after considering a doctor's report, the trial court found that Schmidt was competent to stand trial.
A jury trial took place in January 2018. At trial, Schmidt admitted to causing Danny F.'s injuries, but contended that he acted in self-defense in striking Danny F. and disputed that Danny F. suffered great bodily injury. The jury convicted Schmidt on both counts, and further found that he personally inflicted great bodily injury. The trial court found that Schmidt incurred three prison priors. (§ 667.5, subd. (b).)
In connection with sentencing, defense counsel filed a statement in mitigation, which argued that Schmidt should be placed on probation, and if not, should receive a middle term sentence. Defense counsel argued that Schmidt's mental illness was a factor in mitigation. "The crime was committed solely because of Mr. Schmidt's mental condition. . . . Due to Mr. Schmidt's mental condition, Mr. Schmidt genuinely believed that he was attacked by [Danny F.] It is evident that was his belief based on his testimony on the stand and based on actions immediately after the incident. . . . Mr. Schmidt is diagnosed with Psychotic disorder, he has disorganized though[t] process. Mr. Schmidt was previously 1368 and found incompetent, and consequently, sent to Patton State Hospital." At the sentencing hearing, defense counsel argued, "I don't believe this warrants the upper term. . . . This wasn't a sophisticated crime. I do believe this was driven and is derived from Mr. Schmidt's mental illness. As your honor is aware, he was previously 1368'd twice and found incompetent. I do believe with proper medication, Mr. Schmidt would not have reacted in the manner that he did on the day of the incident."
The trial court sentenced Schmidt to a 10-year prison term. The 10-year term was composed of an upper term sentence of four years on the assault count, a three-year term for the great bodily injury enhancement, and an additional three-year sentence for the three prior prison terms. The sentence on the battery count was stayed pursuant to section 654. In selecting an upper term sentence, the trial court stated:
"There are no circumstances in mitigation that I find connected to this case. And in aggravation, this is a case . . . that engaged in violent conduct. Mr. Schmidt is a serious danger to society. He has a prior assault conviction. His convictions are numerous and of an increasing seriousness, this one being the most serious.
"His prior performance on probation was unsatisfactory, as evidenced by his probation being revoked, prison term being imposed. In addition, county parole was . . . revoked out of Los Angeles.
"And then after—in this particular case, after the initial assault, which disabled the victim, then Mr. Schmidt came back for a second—a second dose that was seen on video. I mean, we saw what kind of force was being used. It was massive force, and it was against somebody who couldn't possibly defend themselves. And there wasn't any provocation that was shown that was—the jury was not convinced there was any provocation, nor is the court convinced that there was any provocation, because there was never a situation where Mr. Schmidt leaned in where the victim said something about [a gang affiliation].
"When Mr. Schmidt first approached the victim, everybody scattered, and Mr. Schmidt approached with fists flying. So there was no provocation here. The upper term of four years is imposed."
II.
DISCUSSION
Schmidt's sole contention is that the trial court abused its discretion by not considering Schmidt's mental illness as a factor in mitigation when deciding whether to impose an upper term sentence. Specifically, focusing on the trial court's statement that "there are no circumstances in mitigation that I find connected to this case," Schmidt contends that we should vacate the sentence and remand for resentencing so that the trial court may consider Schmidt's mental illness as a mitigating factor.
Based on the principle that "complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal" (People v. Scott (1994) 9 Cal.4th 331, 356), the People contend that Schmidt has waived his argument that the trial court abused its discretion by not considering his mental illness as a mitigating factor. We conclude that because defense counsel argued in the statement in mitigation and at the sentencing hearing that the trial court should consider Schmidt's mental illness as a mitigating factor, Schmidt has not waived his appellate argument. --------
Under section 1170, subdivision (b), "[w]hen a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court." A trial court has the discretion "to select among the lower, middle, and upper terms specified by statute without stating ultimate facts deemed to be aggravating or mitigating under the circumstances and without weighing aggravating and mitigating circumstances. [Citations.] Rather, 'a trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions.' " (People v. Jones (2009) 178 Cal.App.4th 853, 866.) "In determining the appropriate term, the court may consider the record in the case, the probation officer's report, other reports . . . , and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing. The court shall select the term which, in the court's discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term . . . ." (§ 1170, subd. (b).) "Neither section 1170 nor the California Rules of Court attempt to provide an inclusive list of aggravating circumstances. Thus, a trial court is free to base an upper term sentence upon any aggravating circumstance that (1) the court deems significant and (2) is reasonably related to the decision being made." (People v. Moberly (2009) 176 Cal.App.4th 1191, 1196.)
A trial court's decision to impose an upper term sentence is subject to review for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) "The trial court's sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.' . . . [A] trial court will abuse its discretion under the amended scheme if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision." (Ibid., citation omitted.)
The California Rules of Court set forth several non-exclusive mitigating factors relating either "to the crime" or "to the defendant," upon which the trial court may rely in selecting between a lower, middle and upper term sentence. (Cal. Rules of Court, rule 4.423.) As relevant here, as a factor "relating to the defendant" the court may consider that "[t]he defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime." (Id., rule 4.423(b)(2).)
Here, the psychiatric evaluation of Schmidt conducted during the proceedings to determine his mental competency to stand trial provides evidence that Schmidt suffers from "Unspecified Schizophrenia Spectrum or Other Psychotic Disorder." However, no evidence was presented at trial or at the sentencing hearing to establish that Schmidt's attack on Danny F. was caused by Schmidt's mental illness, or that Schmidt's mental illness serves to lessen his culpability for his violent behavior. Accordingly, based on the evidence before it, the trial court was well within its discretion to determine that Schmidt had not established, as a mitigating factor, that at the time of his attack on Danny F. he was "suffering from a mental or physical condition that significantly reduced culpability for the crime." (Cal. Rules of Court, rule 4.423(b)(2).)
Accordingly, we conclude that the trial court did not abuse its discretion in imposing an upper term sentence, based in part, on its finding that "there are no circumstances in mitigation that I find connected to this case." Further, the numerous aggravating factors cited by the trial court amply support its exercise of discretion to impose an upper term sentence.
DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR: McCONNELL, P. J. DATO, J.