Opinion
H051000
07-01-2024
THE PEOPLE, Plaintiff and Respondent, v. DAVION SMITH, Defendant and Appellant.
NOT TO BE PUBLISHED
(Monterey County Super. Ct. No. SS161898A)
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
Defendant Davion Smith was convicted by jury of involuntary manslaughter (Pen. Code, § 192, subd. (b)), battery with serious bodily injury (§ 243, subd. (d)), assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)), and intimidating a witness (§ 136.1, subd. (b)(1)). The jury also found true the allegations that defendant personally inflicted great bodily injury during the commission of the assault (§ 12022.7, subd. (a)), had suffered a prior serious or violent felony juvenile adjudication (§ 1170.12, subd. (c)(1)), and had served a prior prison term (§ 667.5, former subd. (b)). The trial court found true the allegation that defendant committed the offense of intimidating a witness while he was released on bail (§ 12022.1). The court sentenced defendant in 2018 to an aggregate term of 18 years.
All further statutory references are to the Penal Code unless otherwise specified.
Regarding count 4, intimidating or dissuading a witness, the most recent abstract of judgment, filed on July 13, 2023, incorrectly cites to section "136(b)(1)." We will order the abstract of judgment corrected to cite section 136.1, subdivision (b)(1).
Upon defendant's first appeal from the judgment, this court reversed and remanded with directions to strike the allegations (1) that defendant had served a prior prison term and (2) that he had suffered a prior serious or violent felony adjudication. After a retrial and a true finding on the latter allegation in 2020, the trial court struck the prior prison term allegation but otherwise reimposed the same sentence, for a total prison term of 17 years.
After a second appeal by defendant, this court reversed the judgment and remanded the matter for resentencing under amended sections 1170 and 654. (People v. Smith (Sept. 28, 2022, H048422) [nonpub. opn.], at p. 34 (Smith).) At the resentencing hearing in 2023, the trial court again sentenced defendant to 17 years.
In his pending third appeal, defendant contends that the trial court prejudicially erred and violated his federal constitutional right to due process by failing to order a supplemental probation report for the most recent resentencing in 2023. He also argues that his trial counsel rendered ineffective assistance of counsel by failing to request a supplemental probation report.
For reasons that we will explain, we will affirm the judgment but order correction of clerical error in the abstract of judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
This court granted defendant's request to augment the record with this court's prior opinion from defendant's second appeal, Smith, supra, H048422. In the pending appeal, the parties rely on the factual and procedural background recited in that prior opinion. Our summary here of the factual and procedural background similarly includes some information that we have taken from the prior opinion.
A. Factual Background
In 2015, defendant confronted Tyler Webb, who allegedly owed him money. Defendant asked Webb," 'Where's my money, man?'" Defendant punched Webb, and Webb fell and hit his head on the cement, causing brain damage.
Someone reported a man lying in the street in the area of a homeless encampment in Salinas. Webb was found nonresponsive inside a tent and was transported to a local hospital where he died.
During a police interview following defendant's arrest, defendant denied being involved in an altercation with Webb or that Webb owed him money.
In early 2016, a witness reported that he had been pressured by defendant's father not to cooperate with the police investigation. After defendant was released from jail, defendant approached the witness several times, encouraging him to change his story. Defendant's brother also contacted associates of the witness to discourage the witness from testifying. The witness became concerned for his safety and worried that defendant might try to kill him.
B. Charges, Verdicts, and Original Sentence
Defendant was charged with involuntary manslaughter (§ 192, subd. (b); count 1), battery with serious bodily injury (§ 243, subd. (d); count 2), assault by means likely to produce great bodily injury (§ 245, subd. (a)(4); count 3), and dissuading a witness (§ 136.1, subd. (b)(1); count 4). It was also alleged that defendant personally inflicted great bodily injury during the commission of count 3 (§ 12022.7, subd. (a)) and that he was on bail when he committed count 4 (§ 12022.1, subd. (b)). Finally, it was alleged that defendant had suffered a prior serious or violent felony juvenile adjudication (§ 1170.12, subd. (c)(1)) and had served a prior prison term (§ 667.5, former subd. (b)).
A jury found defendant guilty of all counts and found true the allegation that defendant personally inflicted great bodily injury during the commission of count 3. In a bifurcated trial, the jury found the prior strike and prior prison term allegations true. The trial court found true the allegation that defendant had committed count 4 while on bail.
At sentencing on February 2, 2018, the trial court denied defendant's motion to strike his prior strike. The court sentenced defendant to 18 years in prison, explaining that it had "thought long and hard about [defendant's] case." The court believed "most of [defendant's] behavior for many years has been motivated by drugs," which the court found "to be a very tragic situation" for defendant. Regarding the incident that led to the victim's death, court stated to defendant, "I think you were motivated by drugs. There's no doubt in my mind you went to collect a drug debt, that you struck the victim, and he fell, and he hit his head. And . . . I don't want to say a freak accident, but, based on that, he passed away. [¶] . . . [¶] I look at this case as a total tragedy for everything." The court stated that the victim's "family will have to live with the consequences of not having their son, and you're going to have to live with the consequences of your behavior. [¶] It doesn't do me any pleasure to send you away like this."
The trial court proceeded to sentence defendant as follows: The court designated count 3, assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)), as the principal term. The court found the following factors in aggravation: (1) "prior convictions as an adult and sustained petitions are numerous and of increasing seriousness," (2) "served prior prison terms," and (3) "prior performance on probation or parole [h]as been unsatisfactory." The court found no factors in mitigation. The court imposed the upper term of four years on count 3, doubled to eight years based on defendant's prior strike, plus a consecutive three-year term for the great bodily injury enhancement.
Regarding count 4, dissuading a witness (§ 136.1, subd. (b)(1)), the trial court stated that it was exercising its discretion to impose a consecutive term and, pursuant to section 1170.15 imposed the full middle term of two years, doubled to four years based on defendant's prior strike, plus a consecutive two-year term for the on-bail enhancement.
Regarding count 1, involuntary manslaughter (§ 192, subd. (b)), and count 2, battery with serious bodily injury (§ 243, subd. (d)), the trial court weighed "the same factors in aggravation and mitigation" and, pursuant to former section 654, stayed upper terms of four years each, doubled to eight years each based on defendant's prior strike. The court also imposed a consecutive one-year term for defendant's prior prison term enhancement. Defendant's total prison term was 18 years.
C. First Appeal and Remand
In defendant's first appeal, he contended, among other arguments, that (1) the record lacked substantial evidence that he was age 16 or older when he committed the juvenile offense, as statutorily required for an adjudication to constitute a strike, and (2) the prior prison term enhancement must be stricken based on new legislation. This court reversed the judgment and remanded the matter with directions to strike the true finding on the allegation that defendant had suffered a prior serious or violent felony adjudication (§ 1170.12, subd. (c)(1)) and to strike the allegation that defendant had served a prior prison term (§ 667.5, former subd. (b)). This court further directed that, if the People elected to retry the prior serious or violent felony adjudication allegation, the trial court must resentence defendant following retrial.
On remand, following a court trial, defendant was found to be 16 years of age or older when he committed the juvenile offense. The court struck the prison prior allegation (§ 667.5, subd. (b)), but otherwise reimposed the same sentence, resulting in a total prison term of 17 years.
D. Second Appeal and Remand
In defendant's second appeal, he contended, among other arguments that (1) the matter should be remanded for resentencing so that the trial court could exercise its discretion under recently amended section 1170, subdivision (b), which makes the middle term the presumptive sentence unless certain circumstances exist; and (2) the matter should be remanded for resentencing so that the court could exercise its discretion under recently amended section 654 to determine which counts to stay. This court agreed, reversing and remanding the matter for resentencing under amended sections 1170 and 654. (Smith, supra, H048422, at p. 34.)
1. Defendant's Resentencing Brief
Following remand, the matter was set for a resentencing hearing. Defendant's trial counsel filed a resentencing brief prior to the hearing. Defense counsel contended that defendant's conduct in prison showed that he had taken "the court's words to heart" about his behavior being motivated by drugs and that he had been participating in the prison's "Delancey Street Honor's Unit" for three and a half years. Defense counsel argued that letters from counselors and supervisors from the program "attest[ed] to the hard work and commitment [defendant] has dedicated to turning his life around." Defense counsel further contended that defendant had "demonstrated his commitment to rehabilitation: not through words but through his actions." Defense counsel requested that the court "acknowledge, encourage, and reward [defendant's] efforts in the exercise of the court's discretion."
Defense counsel filed three letters dated November 23, 2022, January 1, 2023, and January 24, 2023, from the Delancey Street Foundation in support of defendant's resentencing. The letters explained that defendant had "been a resident of the Delancey Street Honors Unit inside the Solano State Prison." The unit had a "no tolerance program in regards to violence, threats of violence, drugs or alcohol, and cellphones. If any of these rules are broken, inmates are immediately taken out of [the] program." The program was a "work based program where the inmates learn construction" and participate in various programs including conflict and anger management, empathic understanding of victims, and anti-gang and addictive behaviors. The letters indicated that defendant had been a resident for two and a half or three years, that he had been "working diligently to change his ways," that he had "helped pave the way for those to come in the future who also want to change their lives," and that he had filled many rolls such as "Activities Facilitator and lead Mentor in the unit."
In a letter by defendant, he stated that upon his release from prison, he planned "to go straight into the Delancey Street Foundation (Program) in San Francisco," which he stated was overseen by the same person who ran the prison program. (Underscoring omitted.) Defendant also requested that he not be transported to appear in court because it would "uproot and [h]inder" him in the prison program.
2. Resentencing Hearing in 2023
The resentencing hearing was held on May 5, 2023, before the same judge who had presided over defendant's original sentencing on February 2, 2018. The prosecutor opposed any reduction in defendant's sentence.
Defendant, who appeared remotely at the hearing, addressed the court. He stated that he was remorseful; that he had made "impulsive, irrational, and . . . selfish choices" throughout his life, "especially about [his] drug addiction"; and that there would "never be any justification for [his] poor choices and decisions" that he had made in the past. He reported receiving "help" through the "mental health department" and "participating in self-help programs, which ha[d] allowed [him] to transition and get into the Delancey Street honors program." Defendant stated he had been "drug free" for the first time in his life. He indicated that if he was released, he was planning to enter the "Delancey Street Foundation program" in San Francisco.
After hearing from defendant, the trial court stated, "I do appreciate what you're saying. The Court has reviewed the remittitur. I went back and I reviewed the sentencing. [¶] I do understand I have discretion. I am not going to use that discretion. The original sentence remains at this point." Defendant was thus sentenced to 17 years in prison.
Defendant's trial counsel subsequently stated to the trial court that with respect to the role of drugs in "the tragedy that occurred" involving the victim, defendant had "been in full attendance for three-and-a-half years" in the Delancey Street program, as reflected in the Delancey Street documents that counsel had provided to the court. Counsel argued that defendant's commitment was "commendable." The court acknowledged counsel's statements but did not change the sentence.
III. DISCUSSION
A. The Parties' Contentions
Defendant contends that the trial court prejudicially erred and violated his federal constitutional right to due process by failing to order a supplemental probation report for his most recent resentencing in 2023. He also argues that his trial counsel rendered ineffective assistance of counsel by failing to request a supplemental report. The Attorney General contends that defendant forfeited his claim by failing to request a supplemental report below, that he cannot show prejudicial error, and that his claim of ineffective assistance of counsel is without merit.
B. General Legal Principles Regarding Probation Reports and Supplemental Reports
Whether a probation report is required for sentencing depends on the circumstances. If a defendant "is convicted of a felony and is eligible for probation," a probation report must be prepared "before judgment is pronounced" (§ 1203, subd. (b)(1); accord, Cal. Rules of Court, rule 4.411(a)(1)(A).) If the defendant is not eligible for probation, the trial court must still "refer the matter to the probation officer for an investigation of the facts relevant to determination of the amount of a restitution fine" and, in the court's "discretion, may direct the probation officer to investigate all facts relevant to the sentencing of the person." (§ 1203, subd. (g); accord, rule 4.411(a)(1)(B).)
All further references to rules are to the California Rules of Court.
A supplemental report is required "if a significant period of time has passed since the original report was prepared." (Rule 4.411(a)(2).) "The courts have held that a supplemental report is necessary only in the circumstances in which a report is required in the first instance, i.e., when the defendant is eligible for probation or a report is necessary to assist the court with other sentencing issues such as the amount of a restitution fine. [Citation.]" (People v. Campbell (2023) 98 Cal.App.5th 350, 385 (Campbell).) If a trial court is not required to obtain a supplemental report but has the discretion to do so, a defendant's failure to request one results in the forfeiture of a claim of error on appeal. (Id. at pp. 385-386.)
A defendant who has suffered a strike conviction, which includes a prior serious or violent felony juvenile adjudication, is not eligible for probation. (§§ 1170.12, subds. (a)(2) &(b)(3), 667, subds. (c)(2) &(d)(3); Campbell, supra, 98 Cal.App.5th at p. 385 [the defendants' "prior strike convictions rendered [them] ineligible for probation"].) Consequently, "a probation report is not necessarily required" for such a defendant who "is statutorily ineligible for probation . . . because of a prior strike." (People v. Dobbins (2005) 127 Cal.App.4th 176, 180.) "Where . . . a defendant is ineligible for probation" and does "not request a supplemental probation report or object to proceeding without one," the defendant "forfeit[s] . . . the right to object to the absence of such a report on appeal. [Citations.]" (People v. Franco (2014) 232 Cal.App.4th 831, 834 (Franco).)
C. Analysis
In this case, defendant acknowledges that a supplemental probation report was not required because his prior strike made him ineligible for probation. He nevertheless contends that the trial court "erred when it failed to order a supplemental report without having a 'sound reason' for the failure." However, defendant's failure to request a supplemental report in the trial court, or to object below to the absence of a supplemental report, forfeits his claim of error on appeal. (Franco, supra, 232 Cal.App.4th at p. 834; Campbell, supra, 98 Cal.App.5th at pp. 385-386.)
Defendant contends that his trial counsel rendered ineffective assistance of counsel by failing to request a supplemental report." 'In assessing claims of ineffective assistance of trial counsel, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.]'" (People v. Gamache (2010) 48 Cal.4th 347, 391.) We apply "a presumption counsel acted within the wide range of reasonable professional assistance," unless "(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." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
In this case, we determine that defendant's trial counsel may have had a rational tactical purpose for not requesting a supplemental report. The same judge presided over defendant's original sentencing in 2018, and his resentencing in 2023. At resentencing in 2023, defendant's argument and supporting documentation focused on his postconviction rehabilitation efforts, particularly his efforts to address his drug addiction, which was an issue that the trial judge had raised at the original sentencing hearing. As reflected in defendant's argument on appeal, he attempted to show to the trial court at resentencing that "he had taken the court's admonitions to heart and completed more than three drug-free years in a well-respected rehabilitation program." Under these circumstances, defendant's trial counsel might have reasonably believed that it was better to focus and control this narrative at resentencing, rather than to risk any negative information in a supplemental report, or information that might otherwise distract from the message that defendant had committed himself to addressing his drug addiction. For example, although the Delancey Street letters indicated that a defendant would be "taken out of [the] program" if the program's rules were broken regarding violence, threats of violence, drugs, alcohol, or cell phones, trial counsel may well have determined that it was not worth the risk of obtaining a supplemental report that might include disciplinary problems that did not necessarily fall within these particular categories, or a supplemental report that might include issues that prison staff, but not Delancey Street personnel, were aware of. "In such a situation, defense counsel could opt to place the defendant's better side before the court by presenting only the matters he wanted it to consider. Thus, in effect, the discretionary nature of supplemental reports gives the defendant a chance to present his best side." (People v. Llamas (1998) 67 Cal.App.4th 35, 40, fn. 7 (Llamas).) As the record does not affirmatively disclose that counsel had no rational tactical purpose for not requesting a supplemental report, counsel was not asked for a reason for failing to request the report, and there could be a satisfactory explanation for not raising this issue, we determine that defendant fails to meet the first prong of his ineffective assistance of counsel claim.
We also determine that defendant fails to establish a reasonable probability of a different result had a supplemental report been requested by trial counsel. Defendant argues that a supplemental report "would have investigated, documented, and analyzed [his] post-conviction conduct to assist the court in determining if lowering his sentence would pose a risk to public safety." However, the trial court not only heard from defendant about his post-conviction progress at the resentencing hearing, but his trial counsel also provided copies of three letters from the prison program administered by Delancey Street demonstrating defendant's commitment and progress in the program. It thus appears that "the information [defendant] asserts was missing due to the lack of a supplemental report was available to the resentencing court in other forms." (Llamas, supra, 67 Cal.App.4th at p. 40.)
Defendant contends that Llamas is distinguishable because in that case, the appellate court found no prejudicial error in the failure to order a supplemental report where defendant provided "three prison vocational training report cards . . . and a certificate of completion," and the original probation report noted that the defendant "had earned his GED in prison and completed nine units of college classes." (Llamas, supra, 67 Cal.App.4th at p. 40.) Defendant argues that whereas in Llamas where "[e]ach was a document generated by prison or probation authorities," the information he presented in the instant case "came through unofficial channels - [his] and counsel's statements, and letters from a private non-profit organization, Delancey Street." Defendant contends that "[i]t is reasonably probable that had the same information been contained in an officially verified supplemental probation report, it would have made more of an impression on the court."
We find defendant's argument unpersuasive. First, defendant does not contend, nor does the record establish, that he could obtain favorable "vocational training report cards . . . and a certificate of completion," or that since the original probation report was prepared he has completed college classes (Llamas, supra, 67 Cal.App.4th at p. 40), such that an order for a supplemental report would have resulted in "a document generated by prison or probation authorities" as argued by defendant. Second, nothing in the record suggests that the trial court doubted the authenticity or content of the letters that defendant obtained from Delancey Street, which were signed and on Delancey Street letterhead.
Defendant contends that the trial court "gave short shrift to [his] diligent and successful efforts to combat [his] addiction," that the court "did not so much as mention [his] statement or the Delancey Street records," and that a supplemental report "would have documented [his] efforts in a way the court could not ignore." We agree that the court did not explicitly reference defendant's commendable efforts to combat his drug addiction. Nevertheless, defendant has not demonstrated error by the court or counsel. The court expressly stated, "Mr. Smith, I do appreciate what you're saying." The court also indicated that it had gone "back" and "reviewed the sentencing," that it "underst[oo]d" that it had discretion to reduce his sentence, but that it was "not going to use that discretion." On this record, which reflects that the court recognized its discretion, carefully reviewed the prior sentencing, and expressly considered defendant's post-conviction rehabilitative efforts, defendant fails to show a reasonable probability of a different result had a supplemental report been requested by trial counsel, where defendant essentially argues that the supplemental report would have documented the same information already provided to the court.
In sum, defendant has forfeited his claim that the trial court erred by failing to order a supplemental probation report, and he fails to establish ineffective assistance of counsel by his trial counsel's failure to request such a report.
IV. DISPOSITION
The judgment is affirmed. The July 13, 2023 abstract of judgment is ordered corrected regarding count 4, dissuading a witness, to reflect a violation of Penal Code section 136.1, subdivision (b)(1). The trial court is directed to send a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: DANNER, J. BROMBERG, J.