Opinion
B322425
06-26-2023
THE PEOPLE, Plaintiff and Respondent, v. JASON JAMALL WAND, Defendant and Appellant.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. MA081402 Robert G. Chu, Judge. Affirmed in part, remanded with instructions.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
CURREY, Acting P.J.
INTRODUCTION
A jury convicted defendant and appellant Jason Jamall Wand of two counts of possession of a firearm by a felon. The trial court sentenced him to seven years and four months in state prison. On appeal, he argues: (1) his convictions violated the Second Amendment; (2) the trial court abused its discretion in denying his Romero motion; (3) his upper term sentence must be vacated and the matter remanded for resentencing in light of Senate Bill No. 567 (2021-2022 Reg. Sess.) (SB 567); and (4) trial counsel was ineffective in failing to object to the probation report. We agree with Wand's third argument and remand the matter for resentencing. In all other respects, the judgment is affirmed.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Effective January 1, 2022, SB 567 amended section 1170 by making the middle term the presumptive prison sentence.
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney filed an information charging Wand with willful, deliberate and premeditated attempted murder (Pen. Code, §§ 664, 187 subd. (a)) and two counts of possession of a firearm by a felon. (§ 29800, subd. (a)(1).) The information also alleged Wand sustained a prior strike conviction. (§§ 667, subds. (a)-(e), 1170.12.) During trial, the court granted the People's motion to amend the information by interlineation to add an assault with a firearm charge. (§ 245, subd. (a)(2).)
All undesignated statutory references are to the Penal Code.
The jury convicted Wand of the two firearm possession charges, acquitted him of attempted murder, and could not reach a verdict on the assault with a firearm charge. The court dismissed the assault with a firearm charge under section 1385. Wand waived his right to a jury trial on the prior strike allegation and admitted the allegation was true.
After denying Wand's Romero motion, the trial court sentenced him to 7 years and 4 months in state prison, consisting of an upper term of 3 years on the first count, doubled to 6 years for the prior strike, plus 16 months on the second count (one-third the mid-term doubled).
Wand timely appealed.
FACTUAL BACKGROUND
On May 25, 2021, Los Angeles County Sheriff's Deputies were surveilling Wand (in relation to events surrounding the attempted murder charge of which he was acquitted and the assault with a firearm charge on which the jury could not reach a verdict). Wand was driving his car when officers conducted a traffic stop in an alley. Wand exited his car and ran away down the alley. His car, which he had not put into park, slowly ran into a police car. Wand gave up without incident when officers detained him at gunpoint.
This section omits facts relating to the attempted murder and assault charges as they have no bearing on this appeal.
Sheriff's Deputies recovered a semi-automatic firearm from Wand's left jacket pocket and a revolver from a backpack in his car. Wand told Sheriff's Investigator Jonathon Livingston that when he was arrested, he had a gun on him and one in his car. When Wand testified at trial, he admitted he had been in possession of the two firearms.
DISCUSSION
I. Wand's convictions for possession of a firearm by a felon do not violate the Second Amendment
Relying on the United States Supreme Court's decision in New York State Rifle &Pistol Ass'n v. Bruen (2022) U.S., [142 S.Ct. 2111, 213 L.Ed.2d. 387] (Bruen), Wand argues his convictions for possession of a firearm by a felon violate the Second Amendment and must be reversed. We are not persuaded. Bruen held the "Second and Fourteenth Amendments protect an individual's right to carry a handgun for self-defense outside the home." (Bruen, at p. 2122.) As Bruen itself notes, however, "the Second Amendment is [not] a regulatory straightjacket ...." (Id. at p. 2133.) Bruen repeatedly emphasized that its Second Amendment analysis applies to "law-abiding" citizens. (Bruen, at pp. 2131, 2133.) And as the Supreme Court has previously explained, nothing in its jurisprudence "should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons ...." (District of Columbia v. Heller (2008) 554 U.S. 570, 626 [128 S.Ct. 2783, 171 L.Ed.2d 637]; accord McDonald v. City of Chicago (2010) 561 U.S. 742, 786 [130 S.Ct. 3020, 177 L.Ed.2d 894].) We therefore reject Wand's argument, as his convictions were clearly lawful under the Second Amendment.
Bruen struck down a New York law that allowed for the issuance of "public-carry licenses only when an applicant demonstrates a special need for self-defense[.]" (Id. at p. 2122)
II. The trial court did not abuse its discretion in denying Wand's Romero motion
Wand next argues the trial court erred in denying his Romero motion. For the reasons discussed below, we reject this contention.
A. Relevant Proceedings
During trial, the court ruled Wand's prior convictions could not be used for impeachment if he chose to testify. As noted above, Wand later admitted the prior strike conviction allegation was true.
As discussed in greater detail below, Wand had several prior convictions, though only one was a strike.
Before sentencing, defense counsel filed a Romero motion to dismiss the strike prior in the interest of justice under section 1385. In the motion, counsel noted the current convictions were for nonviolent offenses, his prior strike occurred many years ago (in 2004), and his most recent conviction was for a misdemeanor in 2012.
After Wand filed his Romero motion, a probation report, apparently written on June 20, 2021, before Wand's convictions, was filed on July 13, 2022. The report listed Wand's juvenile history, which included sustained petitions for assault with a deadly weapon in 2001 (§ 245, subd. (a)(1)) and receiving stolen property in 2002 (§ 496D, subd. (a)). It also listed his adult criminal history, which included convictions for misdemeanor willful cruelty to a child in 2003 (§ 273A, subd. (b)); criminal threats in 2004, resulting in 16 months in state prison (§ 422); illegal possession of ammunition in 2005, resulting in 4 years in state prison (former § 12316, subd. (b)(1)); misdemeanor domestic battery in 2012 (§§ 242, 243, subd. (e)(1)); and driving with a suspended license in 2012 (Veh. Code, § 14601.1, subd. (a)). Based on facts related to the attempted murder and assault charges, the probation officer recommended the "harshest state prison sentence[.]"
The record does not explain the reason for the discrepancy in dates or why an updated probation report was not filed.
At the sentencing hearing, Wand's attorney renewed arguments raised in the written Romero motion. Counsel argued several facts weighed in favor of granting the motion, including that Wand's strike was 18 years old, and his felonies occurred during "one period" of criminal behavior, in contrast with other periods during which he was law-abiding (i.e., from the date of his release from state prison after his 2005 ammunition possession through 2012, and from 2012 until the instant case). Counsel also argued that whereas the Three Strikes law was intended for people who made "no attempt to become a productive member of society," Wand had been gainfully employed as a security guard. She also emphasized that the court had previously ruled Wand's prior strike could not be used for impeachment, and argued the factors considered under Evidence Code section 352 were similar to those considered under section 1385. For these reasons, counsel argued Wand fell outside the spirit of the Three Strikes law.
Before ruling on the motion, the trial court noted it had reviewed the file, the pre-plea probation officer's report, "defendant's criminal history, sentencing memos, [and] argument from both counsel." The court noted Wand had a history of arrests and convictions, including for willful cruelty to a child in 2003; criminal threats in 2004 (resulting in a state prison term); illegal possession of ammunition in 2005 (also resulting in a state prison term); and misdemeanor domestic battery in 2012.
Based on the foregoing, as well as Wand's current convictions, the court found Wand had "been afforded prior chances at the county and state levels," but nonetheless continued his criminal behavior. The court concluded Wand presented a danger to others "given the nature of the facts in this case, along with his criminal history," and his "anger issues which he may have trouble controlling." Noting that public safety was "essential" to its ruling, the court denied the Romero motion, concluding it would not serve the interest of justice to dismiss the strike prior.
B. Applicable Legal Principles
A trial court must make its decision to strike or not strike a prior conviction by considering factors that are intrinsic to the Three Strike law's sentencing scheme. (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) The factors a trial court must consider include: (1) the nature and circumstances of the current conviction; (2) the nature and circumstances of the prior strike conviction; and (3) the defendant's "background, character, and prospects[.]" (Ibid.) If the defendant falls outside the spirit of the Three Strikes law, the court may, in furtherance of justice, treat the defendant "as though he had not previously been convicted of one or more serious and/or violent felonies." (Ibid.; see also Romero, supra, 13 Cal.4th at pp. 529-530; § 1385, subd. (a).) We review a trial court's denial of a Romero motion for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 373.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.)
C. Analysis
We reject Wand's argument that the denial of his Romero motion was an abuse of discretion. The record does not suggest, as Wand contends, that the court was unaware of or disregarded relevant mitigating factors in making its ruling. Rather, the record shows the court appropriately balanced the relevant factors. The court reasonably concluded, in light of Wand's current offenses, criminal history, and character/prospects, that he posed a danger to society and thus fell within the spirit of the Three Strikes law. (See Williams, supra, 17 Cal.4th at p. 161.)
Wand's argument that the trial court improperly relied on the probation report is unsupported by the record. Wand suggests the court erred by relying on facts in the probation report relating to crimes that were dismissed (assault with a firearm) or of which Wand was acquitted (attempted murder). But the trial court explicitly noted it was not basing its sentencing decisions on conduct related to the charged attempted murder and assault. Nor are we persuaded by Wand's argument that the probation report erroneously omitted personal information about employment and medical or mental health issues. The report indeed noted Wand had mental health issues and was employed.In short, nothing in the record suggests the court's reliance on the probation report was improper.
Defense counsel also noted during the oral Romero proceedings that Wand testified at trial he had been gainfully employed, so it is clear from the record the trial court was aware of this fact.
Wand's contention that race played a role in the court's denial of the Romero motion is likewise without merit. As the Attorney General correctly points out, there is nothing in the record suggesting the court's ruling was motivated by racial animus. Although this court is indeed sympathetic to the fact that structural racism plays an extremely regrettable role in our criminal justice system (and society as a whole), that fact is of no direct relevance to the narrow legal question presented here -namely whether the trial court's ruling was a reasonable exercise of its broad sentencing discretion conferred by the legislature.
We also reject Wand's argument that the trial court's ruling is called into question by the fact that it excluded the prior strike conviction for impeachment purposes, yet declined to strike it in the Romero motion context. Those rulings were not inconsistent. One was an evidentiary ruling that went to the fairness of Wand's trial. The other was a sentencing ruling addressing recidivism and public safety concerns. As a separate matter, it bears noting that the trial court's ruling on the impeachment issue cuts against Wand's argument that the court's ruling on the Romero motion was somehow personally or racially motivated. These two rulings, when juxtaposed, show that the trial court was providing nuanced, unbiased analysis in each legal decision, some of which ultimately weighed in Wand's favor.
Wand renews the arguments that his strike prior is not recent, occurred when he was young, and there were sustained time periods during which he was not arrested. Although these things are true, they do not render the trial court's ruling arbitrary or irrational. Rather, a review of the record demonstrates the court reached a reasonable sentencing decision based on an analysis of relevant factors and public safety concerns.
And to the extent Wand suggests the trial court erred by not explicitly discussing every potentially relevant factor in denying the Romero motion, we are not persuaded. "While a court must explain its reasons for striking a prior (§ 1385, subd. (a); see Romero, supra, 13 Cal.4th 497, 531), no similar requirement applies when a court declines to strike a prior [citation]." (In re Large (2007) 41 Cal.4th 538, 550.) "'The absence of such a requirement merely reflects the legislative presumption that a court acts properly whenever it sentences a defendant in accordance with the three strikes law.' [Citation.]" (Ibid.)
For these reasons, the trial court's denial of Wand's Romero motion was not an abuse of discretion.
Although we conclude the trial court did not abuse its discretion in denying Wand's Romero motion, we note that because we are remanding the matter for resentencing based on our resolution of the next issue presented, on remand, the trial court may consider its full range of lawful sentencing options. (People v. Hill (1986) 185 Cal.App.3d 831, 834.) To this end, the court may allow Wand to renew his Romero motion in light of possible changed circumstances since the original sentencing hearing.
III. The case is remanded for resentencing
Wand next argues his case should be remanded for resentencing in light of SB 567. Effective January 1, 2022, SB 567 "amended section 1170, subdivision (b) to specify that, when a sentencing court chooses a term from a statutory triad, the chosen term shall not exceed the middle term, unless the facts supporting the aggravating circumstances are (1) established by the defendant's stipulation to them, (2) proven to a jury (or to a court, if jury is waived) beyond a reasonable doubt, or (3) based on prior convictions evidenced by a certified record of conviction. (Stats. 2021, ch. 731, §§ 1.3, 3(c), adding Pen. Code, § 1170, subd. (b)(1)-(3), by amendment.)" (People v. Jones (2022) 79 Cal.App.5th 37, 44.) The parties agree, and we agree with the parties, that SB 567 applies to Wand's case, as his sentencing hearing occurred after the new law took effect. The parties disagree, however, on whether the case should be remanded. We agree with Wand that remand is warranted.
After denying Wand's Romero motion, the trial court imposed a three-year upper term on the principal count, then doubled that term to six years based on the prior strike. On the subordinate count, it imposed one-third the middle term (8 months), doubled to 16 months based on the prior strike. Noting "the circumstances in aggravation outweigh[ed] any [in] mitigation," the court explained it was imposing the upper term based on the following two factors: (1) "the nature of the case"; and (2) Wand's criminal history. For the reasons that follow, we conclude this was reversible error.
With respect to the first aggravating factor the trial court listed (i.e., the nature of the case), California Rules of Court, rule 4.421(a) is instructive. That rule lists possible factors in aggravation relating to the crime. Because the trial court spoke of the first factor in such general terms (i.e., "the nature of the case"), it is difficult to discern what specific aspects of the case the court had in mind. Given this challenge, we turn to the factors listed in rule 4.421(a) to see which may apply. A review of those factors shows the only one that theoretically facially applies to Wand is that listed in rule 4.421(a)(2): "The defendant was armed with or used a weapon at the time of the commission of the crime[.]" A review of California Rules of Court, rule 4.420(h) reveals, however, that the trial court could not use the fact that Wand was armed as an aggravating factor in selecting the upper term. (See ibid. ["A fact that is an element of the crime on which punishment is being imposed may not be used to impose a particular term"].) Given the generality with which the court described the first factor, and because we cannot discern what fact or facts the trial court had in mind, we conclude the trial court's vague reliance on the nature of Wand's case as an aggravating factor was erroneous.
Turning to the second aggravating factor (Wand's criminal history), we conclude the trial court's reliance on it was permissible. Wand contends the trial court was precluded from using his strike prior as a factor in imposing the upper term, as the court had already used it as a factor in denying the Romero motion, leading to an increase in sentence. In support of his argument, Wand relies on the language of section 1170, subdivision (b)(5), which provides, in pertinent part: "The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law." (Italics added.) As our Supreme Court has long held, however, the Three Strikes law "articulates an alternative sentencing scheme for the current offense rather than an enhancement. [Citation.]" (Romero, supra, 13 Cal.4th at p. 527.) It is therefore clear under Supreme Court jurisprudence that section 1170, subdivision (b)(5) does not apply to Wand's strike prior.
In addition to concluding subdivision (b)(5) did not preclude the trial court from relying on Wand's strike prior, we note that because Wand waived his right to a jury trial on the prior strike allegation and admitted it was true, the court's reliance on it as an aggravating fact was permissible. (See § 1170, subd. (b)(2) [facts supporting aggravating circumstances may be used by trial court to justify imposition of sentence exceeding middle term when those facts have been stipulated by the defendant].) It also bears noting that, at the sentencing hearing, the prosecution submitted to the trial court a certified California Law Enforcement Telecommunications System ("CLETS") document, which the trial court was permitted to use in concluding Wand's other criminal history was an aggravating factor. (See § 1170, subd. (b)(3) [trial court "may consider the defendant's prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury."].) In sum, the trial court's reliance on Wand's criminal history as an aggravating factor was proper.
Having concluded one of the aggravating factors the trial court relied on was improper (the nature of the case) and the other aggravating factor the court relied on was proper (Wand's criminal history), we now turn to whether the case should be remanded. Given the circumstances, and because it is difficult to discern from the record specifically what facts surrounding "the nature of [Wand's] case" the trial court relied on in imposing the upper term, we conclude a remand for resentencing would best serve the interest of justice. (See § 1260 [granting appellate courts broad discretion to fashion remedy that best serves principles of fairness and justice]; see also People v. Levitt (1984) 156 Cal.App.3d 500, 518 (Levitt), overruled on another ground in People v. Johnson (2016) 62 Cal.4th 600, 649, fn. 6 ["[A]bsent unusual circumstances, the presence of a mitigating factor renders improper reliance on an aggravating factor prejudicial, since, with the improper factor eliminated, the presence of mitigation might reasonably affect the balance of the trial court's judgment"].) We express no view concerning what sentence the court should impose on remand.
Regarding our citation to Levitt, we note that although the trial court did not specifically list any circumstances in mitigation, it is clear that several may exist, including (though not necessarily limited to) the fact that Wand voluntarily acknowledged wrongdoing early in the criminal process. (See California Rules of Court, rule 4.423(b)(8) [listing as a mitigating factor: "The defendant voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process"]; California Rules of Court, rule 4.423(c) [mitigating factors broadly include any circumstances reasonably related to the defendant or crime committed].) As noted above, Wand admitted guilt when he was arrested.
IV. Wand's ineffective assistance claim is without merit
Wand lastly contends his trial counsel was ineffective in failing to object to the probation report. We are not persuaded.
To prevail on a claim of ineffective assistance of counsel, a defendant must establish both that counsel's performance was deficient and that he was prejudiced by the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052, 80 L.Ed.2d 674].) First, to establish deficient performance, a defendant must show that counsel's representation was objectively unreasonable "under prevailing professional norms." (Id. at p. 688.) Second, a defendant can show prejudice where there is "a reasonable probability"-meaning "a probability sufficient to undermine confidence in the outcome"- "that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694; see also People v. Goldman (2014) 225 Cal.App.4th 950, 957.)
We focus our analysis on whether Wand was prejudiced. We conclude he was not. It is not reasonably probable that, had counsel objected to the probation report, the result of the proceedings would have been different. As noted above, the court made clear it was not relying on the attempted murder and assault charges. It is also clear the court knew the report was not up to date, referring to it as the "pre-plea probation report." The court never stated it was relying on the probation report's sentencing recommendation, and the record contains no indication that the court relied on the report in an improper or unlawful manner. For these reasons, because Wand has not demonstrated prejudice, we reject his ineffective assistance claim.
On remand, trial counsel may ask the trial court to obtain and consider an updated probation report.
DISPOSITION
The case is remanded for a new sentencing hearing. In all other respects, the judgment is affirmed.
We concur: COLLINS, J. ZUKIN, J. [*]
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to Article VI, section 6, of the California Constitution.