Opinion
F075642
06-03-2019
THE PEOPLE, Plaintiff and Respondent, v. JEREL ISONE STANFIELD, Defendant and Appellant.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Stephanie A. Mitchell, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F13903065)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Franson, J. and Smith, J.
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INTRODUCTION
Appellant Jerel Isone Stanfield was sentenced to the upper term on a charge of evading an officer with willful disregard for the safety of persons or property. (Veh. Code, § 2800.2, subd. (a).) He contends the trial court abused its discretion in imposing the upper term for the offense. Alternatively, if the issue is forfeited, Stanfield contends defense counsel rendered ineffective assistance. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
The Fresno County District Attorney filed an eight-count information against Stanfield on November 1, 2013. It also was alleged that Stanfield had been convicted of one serious or violent felony within the meaning of the "Three Strikes" law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The jury found Stanfield guilty of the Vehicle Code section 2800.2, subdivision (a) offense of evading an officer with willful disregard for the safety of persons or property. The jury found Stanfield not guilty on one count and failed to reach a verdict on the remaining counts. Stanfield admitted the prior strike allegation.
References to code sections are to the Penal Code, unless otherwise specified.
Testimony at trial established that on March 31, 2013, Stanfield was a suspect in a homicide. At about 1:30 p.m. on March 31, Fresno Police Officer Ignacio Ruiz was outside Stanfield's house in an unmarked car; he was not wearing a uniform. Ruiz saw Stanfield come out of the house and get into a black SUV.
Ruiz followed Stanfield onto a freeway and called for backup from marked patrol cars. As Stanfield exited the freeway, Officer Robert Yeager drove up behind the SUV and turned on the patrol car's overhead lights and siren. Three other marked patrol cars joined in the pursuit with their overhead lights and sirens activated.
With the patrol cars following, Stanfield accelerated to 30 miles per hour, ran through four stop signs without stopping, and drove into a neighborhood claimed by the Strother Boys gang. It was Easter Sunday and a lot of people were outdoors in the neighborhood.
As Yeager tried to drive next to the SUV, the SUV collided with his patrol car. Yeager turned his vehicle into the SUV to avoid hitting a parked car. The SUV spun around and headed in the opposite direction. A second patrol car struck the SUV, pushing it into a tree. The total distance of the pursuit was 1.3 miles.
After the SUV stopped, Stanfield ran down the sidewalk with two officers in pursuit. The officers saw Stanfield reaching for his waistband. Stanfield started turning toward the officers and the officers fired multiple shots.
Stanfield was hit by bullets and officers began performing CPR. A loaded semiautomatic handgun was found in Stanfield's pant leg.
At sentencing, the trial court imposed the upper term of three years, doubled to six years because of the prior strike conviction. Total credits of 2,988 days were awarded, which exceeded the term imposed. Stanfield filed a timely notice of appeal on May 15, 2017.
DISCUSSION
Stanfield contends the trial court abused its discretion in imposing the upper term for the offense. To the extent the issue is forfeited, Stanfield contends defense counsel rendered ineffective assistance.
I. Sentencing Hearing
At the start of the sentencing hearing, the trial court noted that it had read and considered the probation report. The probation report assigned a risk assessment of "high violent" to Stanfield. The report noted that Stanfield had a history of using alcohol and marijuana. Stanfield had a significant history of offenses as a juvenile, including three for battery and two for possession of weapons. The probation report also noted that Stanfield had multiple convictions as an adult, including for being a felon in possession of a firearm and the substantive gang offense set forth in section 186.22, subdivision (a).
The probation report identified four aggravating factors: (1) Stanfield has engaged in violent conduct which presents a serious danger to society; (2) his prior convictions as an adult and sustained juvenile offenses are numerous and increasing in seriousness; (3) Stanfield served a prior prison term; and (4) his performance on parole or probation was unsatisfactory. The probation report identified no mitigating factors. The recommended prison term was the upper term of three years, doubled to six years.
The trial court invited comments or corrections to the probation report from counsel. Defense counsel took exception to the risk assessment classification of high violent; challenged as inaccurate the circumstances in aggravation except for the one noting Stanfield served a prison term; and asserted as a mitigating circumstance that Stanfield suffered from "PTSD and double anxiety." Counsel also asked the trial court to dismiss the prior strike allegation. After these remarks, defense counsel submitted "on the report."
The trial court noted that it had received and reviewed numerous letters from Stanfield's family. Stanfield's mother was allowed to testify at the sentencing hearing on behalf of her son.
The prosecution responded to defense counsel's comments by noting that Stanfield had "repeated firearm convictions" and "repeated gang conditions imposed on him as a juvenile and as an adult and failed to comply with those on multiple occasions." In addition, the prosecutor asserted that the facts of the crime warranted an aggravating circumstance, in that Stanfield ran through four stop signs, and would have hit cars with passengers if his vehicle had not been rammed by patrol cars.
The prosecutor concluded by urging the trial court to deny the request to strike the prior conviction allegation and impose a term of three years, doubled to six years, as recommended in the probation report. The trial court commented that regardless of the sentence ultimately imposed, Stanfield had sufficient credits to have served the sentence in full.
The trial court proceeded to deny the defense request to strike the prior conviction allegation. The trial court noted that it was not considering any of the charges for which there was not a conviction in determining an appropriate sentence. The trial court then commented:
"Mr. Stanfield is the one that was the genesis of the pursuit. It was a pursuit through crowded neighborhoods on what everybody has candidly described as an Easter Sunday in which the potential for injury was more than significant. Mr. Stanfield was well aware he was being chased. Made no efforts to pull over. In fact, wasn't stopped until he was PIT'd. I do believe there is sufficient circumstances to aggravate given both the facts of the [offense] as well as Mr. Stanfield's prior criminal history."
After these remarks, the trial court proceeded to impose sentence. The upper term of three years, doubled to six years based upon the prior strike, was imposed. Credits of 1,494 actual and 1,494 conduct days were awarded, for a total of 2,988 days of credit.
II. Challenge to Discretionary Sentencing Choice is Forfeited
Stanfield contends the trial court abused its discretion because it considered improper aggravating factors and failed to consider mitigating factors. Specifically, Stanfield contends factors used to enhance his sentence were an element of the crime, were otherwise used to impose a Three Strikes sentence, or were irrational and that the trial court failed to consider "significant mitigating factors." Defense counsel did not assert an objection to the trial court's imposition of the upper term on these grounds at Stanfield's sentencing hearing. Claims of error in the trial court's exercise of its sentencing discretion are forfeited if not raised at the sentencing hearing. (People v. Scott (1994) 9 Cal.4th 331, 351-356.)
III. No Ineffective Assistance of Counsel
Acknowledging the issue might be forfeited, Stanfield contends defense counsel rendered ineffective assistance. Stanfield has failed to show that defense counsel was ineffective for failing to object to the trial court's reasons for imposing the aggravated term or for failing to further argue circumstances in mitigation. No ineffective assistance of counsel has been shown.
A defendant claiming ineffective assistance of counsel must satisfy a two-part test requiring a showing of counsel's deficient performance and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) As to deficient performance, a defendant "must show that counsel's representation fell below an objective standard of reasonableness" measured against "prevailing professional norms." (Id. at p. 688.)
In evaluating trial counsel's actions, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (Strickland, supra, 466 U.S. at p. 689; see People v. Dennis (1998) 17 Cal.4th 468, 541.) Thus, a defendant must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances. (Strickland, at p. 689.) "The constitutional standard of performance by counsel is 'reasonableness,' viewed from counsel's perspective at the time of his challenged act or omission." (People v. Gonzalez (1990) 51 Cal.3d 1179, 1243-1244, superseded by statute on another ground as stated in In re Steele (2004) 32 Cal.4th 682, 691.)
The prejudice prong requires a defendant to establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Ibid.)
Trial courts have broad sentencing discretion, and we review a trial court's sentencing choices for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) A trial court's sentencing decision must be affirmed unless there is clear evidence the sentencing choice was arbitrary or irrational. (People v. Lamb (1988) 206 Cal.App.3d 397, 401.) A trial court abuses its discretion "if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision." (People v. Sandoval, supra, 41 Cal.4th at p. 847.)
If a trial court has stated both proper and improper reasons for its sentencing choice, we "set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper." (People v. Jones (2009) 178 Cal.App.4th 853, 861.) A single factor in aggravation will support imposition of the upper, or aggravated, term. (People v. Black (2007) 41 Cal.4th 799, 813.)
To the extent the trial court's remarks at sentencing are viewed as using an element of the offense to impose the upper term, it would be improper. (People v. Scott, supra, 9 Cal.4th at p. 350.) However, the trial court's remarks about the circumstances of the offense, including that it occurred on Easter Sunday, are more properly viewed as responsive to the argument of defense counsel and the prosecution. Regardless, there were other proper aggravating factors that supported imposition of the upper term.
California Rules of Court, rule 4.421 sets forth factors relating to the crime and/or to the defendant that may be considered by a trial court in imposing sentence. One such factor is that the defendant's prior convictions as an adult, or sustained petitions in juvenile delinquency proceedings, are numerous or of increasing seriousness. (Rule 4.421(b)(2).) Stanfield had a significant history of offenses as a juvenile and multiple convictions as an adult, excluding the offense that was used as the basis for doubling his term pursuant to the Three Strikes law.
References to rules are to the California Rules of Court. --------
A trial court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed. (§ 1170, subd. (b).) The trial court did not rely on Stanfield's prior conviction enhancement as an aggravating circumstance. Rather, the trial court articulated as a basis for imposition of the upper term Stanfield's "prior criminal history." There are multiple offenses in Stanfield's criminal history, other than the offense used as the basis of the prior conviction enhancement. The trial court did not improperly rely on the prior conviction enhancement to impose the upper term, as Stanfield claims.
Additionally, the probation report noted that Stanfield's prior performance on probation or parole was unsatisfactory and the trial court noted at sentencing Stanfield had multiple parole violations. Unsatisfactory performance on parole or probation is itself grounds for imposing an upper term. (Rule 4.421(b)(5).) Moreover, the trial court may have considered the parole violations as part of the "prior criminal history" of Stanfield.
Although the probation report found no factors in mitigation, defense counsel argued mitigating factors were present. The trial court also reviewed multiple letters from Stanfield's family members and heard testimony from Stanfield's mother. A trial court "may minimize or even entirely disregard mitigating factors without stating its reasons." (People v. Salazar (1983) 144 Cal.App.3d 799, 813.) There is no requirement that the upper term be supported by aggravating factors that outweigh mitigating factors. (See rule 4.420(b).)
A trial court may base an upper term sentence on any aggravating factor the court deems significant. (People v. Weber (2013) 217 Cal.App.4th 1041, 1063-1064.) Even if the trial court here stated both proper and improper reasons for its sentencing choice, we "set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper." (People v. Jones, supra, 178 Cal.App.4th at p. 861.) The trial court here reviewed the probation report, heard argument as to the appropriate sentence, and heard from family members of Stanfield at sentencing. It is not reasonably probable on this record that the trial court would have imposed anything other than the upper term.
It follows, therefore, that defense counsel did not render ineffective assistance because even if defense counsel had raised an objection to those comments at sentencing that Stanfield asserts were irrational or an element of the crime, there were valid aggravating circumstances upon which the trial court relied to impose the upper term. A single aggravating factor supports an upper term sentence. (People v. Black, supra, 41 Cal.4th at pp. 813, 815.) Consequently, Stanfield is unable to demonstrate "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.)
DISPOSITION
The judgment is affirmed.