Opinion
A163080
09-28-2022
THE PEOPLE, Plaintiff and Respondent, v. CLIFFORD PETER SERVETTI, Defendant and Appellant.
NOT TO BE PUBLISHED
Napa County Super. Ct. No. 19CR000259
PETROU, J.
Defendant Clifford Peter Servetti pleaded guilty to driving under the influence causing injury (Veh. Code, § 23153, subd. (a)) and driving with a blood alcohol content above 0.08 percent causing injury (Veh. Code, § 23153, subd. (b)). He also admitted to a multiple victim enhancement (Veh. Code, § 23558) and three prior convictions (Pen. Code, § 667, subds. (b)-(i)). After granting defendant's motion to strike his prior convictions, the court suspended imposition of sentence and placed defendant on formal probation for three years.
All further unspecified statutory references are to the Penal Code.
On appeal, defendant seeks reversal and remand for resentencing, arguing (1) that the trial court failed to make the requisite determination as to defendant's eligibility for probation and treatment under section 1170.9, and (2) that his trial counsel rendered ineffective assistance by failing to request a mental health diversion eligibility hearing under section 1001.36. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Background
Defendant was involved in a three-car collision that occurred on December 24, 2018. Based on that incident, on May 23, 2019, the Napa County District Attorney filed a first amended information charging defendant with the felony offenses of driving under the influence of alcohol causing injury (Veh. Code, § 23152, subd. (a)) (count one) and driving with a blood alcohol content above 0.08 percent causing injury (Veh. Code, § 23153, subd. (b)) (count two). The information included sentence enhancement allegations that defendant caused bodily injuries to multiple victims (Veh. Code, § 23558) and that he had sustained three prior convictions for serious and/or violent felonies (§ 667, subds. (b)-(i)).
On September 30, 2019, defendant pleaded guilty to both counts, and admitted the sentence enhancement allegations. Defendant understood his plea was "open," meaning the court could impose a minimum aggregate term of one year and a maximum aggregate term of 8 years.
B. Sentencing Proceedings
Before sentencing, defendant filed a motion to strike his prior convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). Defendant specifically requested the court "fashion a disposition in conformity with the spirit of PC 1170.9," as defendant was "exactly the example" the Legislature had in mind when it drafted section 1170.9 to allow for treatment instead of jail or prison for California veterans. In support thereof, defendant asserted he was eligible for section 1170.9 consideration as he was a 70-year-old three-combat-tour Vietnam veteran, with an 80 percent service-connected disability for post-traumatic stress disorder (PTSD).
Subsequent to the end of his military service and treatment in an acute mental health facility for combative fatigue after his final tour in Vietnam, defendant rebuilt his life, married in 1973, had a family, and was a model citizen until 2010 when he was involved in a road rage incident stemming in part from his PTSD. He was convicted of discharging a firearm (§ 246), assault with deadly weapon (§ 245, subd. (b)), and criminal threats (§ 422); he received a suspended prison sentence with a felony grant of probation, a county jail sentence and ordered to complete a treatment program. He completed an inpatient mental health program and his probation without a violation.
A few months before the current 2018 driving offense convictions, and as a consequence of “personal emotional battles,” defendant's PTSD became overwhelming and he relapsed. For purposes of sentencing on his current convictions, defendant requested the court strike his prior strike convictions, and averred that a “prison sentence suspended with a formal grant of probation and a Court ordered live in treatment program as a component of the sentence with any local jail sentence [would be] in the interests of justice. This is exactly what the legislature had intended with the implementation of PC 1170.9.” The prosecution opposed defendant's Romero motion to strike his prior convictions, as well as his request for section 1170.9 consideration. The prosecution argued defendant was a recidivist who fell squarely within the statutory framework of the three strikes law, he was statutorily ineligible for probation based on his three prior strike convictions, and, alternatively, he had failed to support his request for section 1170.9 relief by providing evidence that his current DUI convictions were a result of combat service- related PTSD.
On December 20, 2019, the trial court held the first of several sentencing hearings. The court noted it had read the probation department's report, as well as defendant's motion "to strike the prior convictions under the Romero case as well as to consider Penal Code Section 1170.9 for sentencing," and the prosecution's opposition. The court heard counsel's arguments addressing both the Romero motion to strike and defendant's request to be sentenced consistent with section 1170.9.
Following counsel's arguments, the trial court continued the matter for further information about defendant's prior strike convictions, a report from the Veterans Administration concerning defendant's PTSD, and a further probation department report addressing "what tools Probation would have if the Court granted probation to ensure that [defendant] does not consume alcohol, regardless of whether or not he's under stress." In requesting the additional information, the court commented that it was not confident defendant could stop drinking and that defendant was a danger to the community when he drank.
The probation department complied with the court's request, informing the court that it did not know of any devices that would provide an instant or immediate alert for defendant's alcohol consumption. However, it could monitor defendant's alcohol intake by placing him on a SCRAM device and requiring defendant to report in person once a week to update his SCRAM monitor and download the information. There was also the option of daily testing at the Probation Department, but that would require defendant to travel from San Francisco to Napa every day. Defendant was willing to wear a SCRAM device and continue attending classes at "Veterans' Affairs." Defendant reported to the probation department that he was attending daily Alcohol Anonymous classes and, since December 2019, had been prescribed and was taking Antabuse. While the probation department could verify defendant's Antabuse prescription, there were no tests to ensure defendant was taking the medication as prescribed.
On February 5, 2020, the court again continued sentencing, noting it was "on the defense and the People to obtain . . . information if you have some proposal in terms of some live-in treatment program," which the court would factor into its Romero decision "as well as [its] overall sentencing decision." Defense counsel stated she would give the court "concrete information that the court needs in terms of when [defendant] could go into live-in and what jail time he can do ahead of time."
Thereafter, the matter was continued several times for various reasons including the COVID-19 pandemic. At an August 21, 2020 hearing, defense counsel specifically informed the court she had secured letters from the Veterans' Administration that defendant had been accepted at several programs, but the programs were not accepting any participants over the age of 65 due to the pandemic and defendant was then 71 years old.
At the hearing on November 20, 2020, the court, after noting that a full sentencing hearing had been previously held, informed the parties of its tentative sentence as follows:
"I'm prepared to exercise my discretion under Romero and to grant it as to the prior strikes and to place [defendant] on probation. The reason I'm prepared to do that, and I tell you it's a much simpler decision for me today than it was a year ago[.] . . . He's . . . now 71 years old [and would face] . . . potential public health and health issues . . . [if the court did not strike the strike convictions and he was placed in the Department of Corrections]....[ ¶] So my assessment is that [defendant] can serve his jail sentence, or some part of it, pretty easily, successfully, in our county jail."
The court then asked for counsel's arguments on the tentative decision. The prosecution opposed the court's grant of the Romero motion, but otherwise submitted on the court's tentative decision. Defense counsel replied, stating she "just, obviously, wanted to bring in the 1170.9 factors," arguing as follows:
"[Defense Counsel]: He is a veteran. Actually a highly decorated veteran. It's been 10 years since he . . . was convicted of any crime. His probation was flawless. He had a letter from the probation officer saying how compliant he is. He has been [taking] . . . Antabuse. He [has] not been driving. He's committed to not being a danger to the public. He does suffer from stress disorder. He's 80 percent disabled, according to VA [Veterans' Administration]. And there are certain triggers that are known to have caused both the incidents previously and this incident at well. And he does need more help in figuring out how to keep those triggers causing him to make poor choices in both of those circumstances."
Defense counsel further noted defendant had been accepted into a treatment program but because of his age would not be allowed to start that program at that time; he had continued to seek treatment in the interim.
Following counsel's arguments, the court reaffirmed its tentative decision to grant the Romero motion to strike and place defendant on probation. The court began its comments by stating that, exercising its discretion under Romero and section 1385, prior strike convictions that were admitted as part of the plea would be stricken for purposes of sentencing. The court explained it had granted the motion to strike "because of the defendant's age and . . . his some 40 odd years of law abiding behavior up until the criminal offenses that were described by the District Attorney, which resulted in the strike convictions a number of years ago, the posttraumatic stress disorder that has been described in the presentation by the defense, and the fact of the current pandemic, and . . ., in the Court's view[, the] very clear public health and medical health issue related to a sentence to the Department of Corrections and Rehabilitation. [¶] And finally, the Court takes into account that [defendant] has continued to be law abiding for over a year since this case came into effect." The court further stated that because it intended to place defendant on formal probation, the case would be referred back to the probation department for a supplemental report regarding recommendations for terms and conditions of probation, including the length of any jail sentence and treatment. The court specifically informed defense counsel that it would be incumbent on the defense to provide all the information related to any proposed treatment for defendant, as well as any information regarding defendant's use of Antabuse.
The probation department complied with the court's request, recommending that the court place defendant on three years of formal probation with certain terms and conditions, including that he (1) serve 180 days in jail, with one day credit for time served, with jail time being served on electronic monitoring if approved by the probation department and the court; (2) not drink or possess alcoholic beverages, or frequent a place where alcohol is sold as the primary income of the business; (3) immediately enroll in, pay for, and successfully complete an alcohol and drug problem assessment program if directed by his probation officer; (4) enroll in, pay for, and successfully complete an inpatient treatment program if required and as chosen by his probation officer, and (5) immediately enroll in, pay for, and successfully complete "DDP" (drinking driver program) for 1 to 3 months.
At the January 8, 2021 hearing, the court heard counsel's arguments as to the probation department's recommendation on the terms and conditions of any probationary term including that defendant serve 180 days on electronic monitoring. In addressing the court, the prosecution focused on defendant's criminal conduct and argued for defendant to serve one year on electronic monitoring. Defense counsel urged the court to impose the recommended 180 days on electronic monitoring, as such a condition would be in keeping with the nature of his current offenses, and considering "his background, his service, as well as his years and years of law abiding conduct until the point where he had some extreme problems" that seemed to "trigger things back to his service issues." Defense counsel further stated defendant might be able to enter treatment "relatively soon" as the treatment center was employing procedures to be able to accept people of defendant's age.
The court then stated its decision regarding the probation department's recommended terms and conditions of probation as follows:
"It certainly was a close call for the Court, but ultimately when looking at all the factors, aggravating and mitigating, as well as the pandemic we are currently in, I'm satisfied that placing him on probation is the appropriate thing to do. [¶] And the one area [in] which I'm going to . . . deviate from the recommendation, is I am going to impose the 364 days requested by the DA, although I'll make it possible for him to utilize electronic monitoring approved by probation. I think that's appropriate. [¶] Otherwise, I'm going to follow and impose the terms and conditions."
After further discussion regarding the terms and conditions of probation, the trial court imposed sentence:
"THE COURT: . . . In this matter, imposition of sentence is suspended. Defendant is placed on three years of formal probation on conditions one through 36 as recommended. [ ] Condition three is modified to read 364 in county jail. The Court [has] no objection to electronic monitoring, if available, and workable. [ ] . . . [ ] His credits are one day. [ ] . . . There is the three-month drinking driver program...."
On April 20, 2021, defendant filed a motion requesting to serve his 364-day jail term on electronic monitoring with L.C.A. Services. The matter was referred to the probation department for a recommendation. In reviewing the matter, the probation department recommended the court deny the request because a record check had revealed that on September 24, 2020, in Riverside County, defendant was arrested for violating various sections of the Vehicle Code and Penal Code, and on April 13, 2021, defendant was convicted of violating Vehicle Code section 23152, subdivision (b) (driving under the influence with a blood alcohol level of 0.08 percent or more) and placed on probation for three years.
On May 24, 2021, the matter was on calendar for the trial court's consideration of defendant's request to allow him to serve his jail term on the L.C.A. electronic monitoring program. At this hearing, the trial court was informed that defendant's prior counsel had died three months earlier and defendant was being represented by the office of the public defender. The court stated it was inclined to deny the request because while the case was pending defendant had been arrested for another DUI offense. However, the court continued the matter to review its prior statements at the time of sentencing.
At the June 4, 2021 hearing, the court modified the terms of probation to serve 364 days on electronic monitoring by providing that as a condition of probation defendant would be required to serve 180 days in jail, but days 181 to 364 could be served on electronic monitoring by L.C.A. In so ruling, the court noted that while it had intended to allow defendant to serve his entire jail term on electronic monitoring, the court was not aware at the time of sentencing that defendant had pending criminal charges for driving under the influence. In modifying its decision, the court explained it had gone "out on a limb, so to speak," when it granted defendant's Romero motion to strike his prior convictions, which were "obviously" based on "a very troubling disturbing bit of conduct," but the court could not "ignore this. I just can't."
DISCUSSION
I. Defendant's Section 1170.9 Contentions
Defendant argues he is entitled to reversal and remand for resentencing because the trial court failed to determine his eligibility for probation and treatment as required by section 1170.9. In support of his argument, he relies primarily on People v. Bruhn (1989) 210 Cal.App.3d 1195 (Bruhn). However, Bruhn was decided under an earlier version of section 1170.9, which required a court to consider a defendant's suitability for federal incarceration if the defendant made an initial showing that he served in combat while a member of the United States Armed Services and suffered from substance abuse or other psychological problems resulting from the service. (Stats. 1983, ch. 143, § 121.) In Bruhn, the trial court summarily sentenced defendant to state prison without indicating that federal commitment under former section 1170.9 had been considered. (210 Cal.App.3d at p. 1200.) Under those circumstances, the Bruhn court remanded the matter to allow the court to consider Bruhn's eligibility for federal commitment under former section 1170.9. (210 Cal.App.3d at p. 1200.)
Since Bruhn was decided, section 1170.9 has been amended and now reads: "(a) In the case of any person convicted of a criminal offense who could otherwise be sentenced to county jail or state prison and who alleges that the person committed the offense as a result of sexual trauma, traumatic brain disorder, post-traumatic stress disorder, substance abuse, or mental health problems stemming from service in the United States military, the court shall, prior to sentencing, make a determination as to whether the defendant was, or currently is, a member of the United States military and whether the defendant may be suffering from sexual trauma, traumatic brain disorder, post-traumatic stress disorder, substance abuse, or mental health problems as a result of the person's service. The court may request, through existing resources, an assessment in aid in that determination. ¶ (b)(1) If the court concludes that a defendant convicted of a criminal offense is a person described in subdivision (a), and if the defendant is otherwise eligible for probation, the court shall consider the circumstances described in subdivision (a) as a factor in favor of granting probation. (2) If the court places the defendant on probation, the court may order the defendant into a local, state, federal, or private nonprofit treatment program for a period not to exceed that period which the defendant would have served in state prison or county jail, provided the defendant agrees to participate in the program and the court determines that an appropriate program exists."
Contrary to defendant's implicit contention, section 1170.9, subdivision (a), does not expressly proscribe the manner in which the court must "make a determination" regarding defendant's service and service-related mental health condition. It states only that a "determination" is to be made and the court may, but is not required, to "request, through existing resources, an assessment to aid in that determination." (Ibid.) Prior to the first sentencing hearing, defense counsel's filed written Romero motion to strike specifically included extensive argument in support of a request for a sentence consistent with section 1170.9. In addition to the written request, at the sentencing hearings defense counsel repeatedly urged the court to impose probation based on defendant's military service-related health conditions. And, indeed, at that first hearing the court expressly stated: "[W]hether you're talking Romero or whether you're talking 1170.9, I don't think there is any difficulty in concluding that [defendant] suffered PTSD and that may have an impact leading up to today." Consequently, we can confidently conclude the trial court performed its obligation in making the "determination" required by section 1170.9, subdivision (a). (Evid. Code, § 664.)
We see no merit to defendant's further contention that a remand is required because the court did not specifically mention it had considered defendant's service-related health conditions when it sentenced defendant and later when it modified the sentence. At the November 20, 2020 hearing, as outlined above, the court initially stated its tentative sentence decision (to grant the Romero motion to strike and place defendant on probation), heard argument, and then reaffirmed its tentative decision. The court expressly stated that its decision to grant the Romero motion to strike (allowing the court to impose probation) was based, in part, on "the posttraumatic stress disorder that has been described in the presentation by the defense." Additionally, both when imposing the initial sentence and the modified sentence, the court stated it had considered both aggravating and mitigating factors, in reaching its decisions. While the probation reports did not mention section 1170.9 or defendant's service-related health conditions as mitigating factors, there is no doubt the court was fully informed that defendant's service-related health conditions were mitigating factors to be considered. Given this record, we are confident the court considered defendant's service-related health conditions when making all of its sentencing decisions and, if we remanded, the court would render the same sentencing decisions.
II. Defendant's Section 1001.36 Contentions
Section 1001.36 provides that certain defendants suffering from qualifying mental disorders may be eligible for pretrial diversion, defined as "postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment." (§ 1001.36, subd. (a)-(c).) "The statutory scheme contemplates participation in a mental health program approved by the court for a period of up to two years, with regular progress reports to 'the court, the defense, and the prosecutor[.]' (§ 1001.36, subds. (c)(1), (c)(2), (c)(3).) Only 'at the end of the period of diversion,' after performing satisfactorily, does the defendant become eligible for dismissal of the 'criminal charges that were the subject of the criminal proceedings at the time of the initial diversion.' (§ 1001.36, subd. (e).) The court may then 'conclude that the defendant has performed satisfactorily if,' if among other things, 'the defendant has substantially complied with the requirements of diversion[.]' (Ibid.) Section 1001.36 is not just a dismissal statute; rather, it presents dismissal as an incentive and reward for successful completion of these legislatively-prescribed processes." (People v. Rodriguez (2021) 68 Cal.App.5th 584, 592, review granted November 10, 2021, S270895.)
Defendant did not make a request at trial for section 1001.36 mental health diversion. Accordingly, he has forfeited the issue on appeal. (See People v. Horning (2004) 34 Cal.4th 871, 899.)
We find unavailing his contention that a remand is necessary because his trial counsel's failure to make a section 1001.36 request for mental health diversion constituted ineffective assistance. To prevail on a claim of ineffective assistance of counsel, a defendant must show that (1) his counsel's representation fell below an objective standard of reasonableness, and (2) but for his counsel's errors there is a reasonable probability that the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 693 (Strickland).) Because a defendant must satisfy both components, we may reject a claim of ineffective assistance of counsel if a defendant makes an insufficient showing as to either component. (Id. at p. 697.) Here, we conclude defendant has failed to present us with a record demonstrating that his trial counsel's representation fell below an objective standard of reasonableness, and, accordingly, we do not address the prejudice component.
As our Supreme Court has repeatedly recognized, "[o]n direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1006; People v. Castillo (1997) 16 Cal.4th 1009, 1015 ["if the record shed no light on why counsel acted or failed to act in the challenged manner, we must reject [an ineffective assistance of counsel] claim on appeal unless counsel was asked for an explanation and failed to provide one, or there could be no satisfactory explanation for counsel's performance"]; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266 (Mendoza Tello) ["[w]e have repeatedly stressed 'that "[i]f 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;'" "[a] claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding"].)
" '[S]urmounting Strickland's high bar is never an easy task.'" (Harrington v. Richter (2011) 562 U.S. 86, 105.) "An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest 'intrusive post-trial inquiry' threaten the integrity of the very adversary process the right to counsel is meant to service. [Citation.] Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is 'all too tempting' to 'second-guess counsel's assistance after conviction or adverse sentence.' [Citations.] The question is whether an attorney's representation amounted to incompetence under 'prevailing professional norms,' not whether it deviated from best practices or most common custom." (Ibid.)
Here, the record before us contains no explanation for defense counsel's failure to seek mental health diversion under section 1001.36. "[A] defendant (or . . . counsel) is often best positioned to know whether mental health diversion is an appropriate outcome." (People v. Banner (2022) 77 Cal.App.5th 226, 235 (Banner); see People v. Graham (2021) 64 Cal.App.5th 827, 835, review granted Sept. 1, 2021, S269509 ["the onus is placed on the defendant to raise the issue of diversion"].) In addition, "[s]ection 1001.36 does not confer a sua sponte duty on trial courts to consider mental health diversion." (Banner, supra, 77 Cal.App.5th at p. 233.) There is no showing on the record that trial counsel's failure to request section 1001.36 mental health diversion was the result of counsel's ignorance or misinterpretation of the law, rather than an informed decision not to pursue relief under that section. Our inability to understand counsel's conduct "cannot be a basis for inferring [counsel] was wrong." (People v. Garrison (1966) 246 Cal.App.2d 343, 351.) As an appellate court we will not "brand" counsel "incompetent unless [we] can be truly confident all the relevant facts have been developed." (Mendoza Tello, supra, 15 Cal.4th at p. 267.)
Finally, we are not persuaded by defendant's argument that proceeding by way of habeas corpus would be onerous (if not foreclosed entirely) due to the death of defendant's first attorney. The inability to provide a declaration from deceased counsel does not relieve defendant of his burden to establish a prima facie case of ineffective assistance, e.g., by offering other readily available evidence that would support his claim of deficient performance, such as his own declaration and declarations from his second defense counsel as well as other counsel on the issue of effective representation. (See People v. Duvall (1995) 9 Cal.4th 464, 474.)
We conclude by noting that "[w]e are wary of adjudicating claims castings aspersions on counsel when counsel is not in a position to defend [their] conduct. A claim of ineffective assistance of counsel instead is more appropriately made in a habeas corpus proceeding. [Citation.] Accordingly we reject defendant's claim on appeal and leave him to that remedy." (People v. Hinds (2003) 108 Cal.App.4th 897, 902.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Tucher, P.J., Rodriguez, J.