Opinion
C096748
07-06-2023
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER LEE KEEHL, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. Nos. 20CF03183, 20CF06237, 21CF03670.
MESIWALA, J.
Defendant Christopher Lee Keehl entered into plea agreements in three separate cases. The trial court imposed a combined sentence of nine years four months.
On appeal, defendant contends the trial court violated Penal Code section 1170, subdivision (b)(1) through (3) as amended by Senate Bill No. 567 (Stats. 2021, ch. 731, § 1.3, effective Jan. 1, 2022) (Senate Bill 567), in sentencing him to the upper term for a violation of Vehicle Code section 23152, subdivision (b). (All further undesignated statutory references are to the Vehicle Code.) Defendant also contends that the trial court erred in not considering mitigating circumstances under California Rules of Court, rule 4.423, and amended Penal Code section 1170, subdivision (b)(6). (All further undesignated rule references are to the California Rules of Court.)
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Two of defendant's three convictions involved drunk driving, and the third charged defendant with causing damage to the county jail while incarcerated.
A. Case No. 20CF03183
On July 2, 2020, defendant was charged with driving with a blood alcohol content of 0.08 percent within 10 years of a felony driving under the influence (DUI) conviction or with three or more felony DUI convictions within 10 years (count 1). The complaint alleged under section 23550.5, subdivision (a) that defendant suffered five prior DUI convictions, including two felony DUIs. The complaint further alleged that defendant (1) had been convicted of a prior serious or violent felony (a 2007 burglary) that qualified as a strike under the Three Strikes law, and (2) refused to take a test to determine his blood alcohol content. The complaint also charged defendant with driving with a license suspended or revoked for a DUI (count 2).
On September 16, 2020, defendant: pled no contest to the sections 23152, subdivision (b) and 14601.2 violations; stipulated to the probation report as the factual basis of the charges; admitted all the prior DUIs in the complaint; and admitted the prior strike. Based on defendant's admissions, the trial court found defendant in violation of PRCS granted in a prior case. The court released defendant to a rehabilitation program for six months with the understanding that, if he did not successfully complete the program, he would face a sentence of six years.
PRCS is an acronym for "postrelease community supervision." PRCS is "an alternative to parole for nonserious, nonviolent felonies." (People v. Bryant (2021) 11 Cal.5th 976, 982.)
On September 26, 2020, defendant" 'self-discharged'" from the rehabilitation program. On October 14, 2020, the court modified the conditions of defendant's release to allow him to reside at another rehabilitation program for one year. Defendant left this program prematurely, too.
B. Case No. 20CF06237
On December 11, 2020, defendant was charged with (1) a DUI within 10 years of a felony DUI or vehicular manslaughter conviction (count 1), alleging under section 23550.5, subdivision (a) that defendant suffered three prior DUI convictions, and (2) driving with a blood alcohol content of 0.08 percent within 10 years of a felony DUI or vehicular manslaughter conviction (count 2), alleging the same prior convictions under section 23550.5, subdivision (a). The complaint further alleged as to counts 1 and 2 that defendant refused to take a blood alcohol level test, committed the alleged offense while on bail or released on his own recognizance, and that defendant had a prior strike conviction. The complaint also charged defendant with driving with a license suspended or revoked for a DUI conviction (count 3) and resisting a peace officer (count 4).
On November 1, 2021, defendant pled no contest to all the charges and admitted the enhancements. Defense counsel and the prosecutor stipulated to the probation report as the factual basis for the plea.
C. Case No. 21CF03670
On July 19, 2021, defendant was charged with one count of damaging public property in a jail or prison with a value over $950. The complaint further alleged that defendant had suffered a prior strike conviction.
On December 1, 2021, the court granted the prosecutor's motion to amend the Penal Code section 4600, subdivision (a) felony charge to a misdemeanor, which eliminated the strike allegation. Defendant pled no contest to the charge. Counsel for the parties stipulated to the factual basis for the plea.
D. Sentencing
On June 15, 2022, the trial court sentenced defendant in these three cases.
The court stated that defendant "did not stipulate to the existence of aggravating factors, nor did a jury find aggravating factors to be true. However, here the Court still finds that factors in aggravation outweigh factors in mitigation. [¶] Specifically in aggravation: [¶] His prior convictions as an adult are numerous; [¶] He has served prior prison terms; [¶] He was also on PRCS at the time he picked up these offenses. [¶] The Court didn't find any circumstances in mitigation."
In case No. 20CF03183, the trial court designated count 1 with a prior strike as the principal term and sentenced defendant to six years, the upper term doubled by the strike. On count 2, the court sentenced defendant to 180 days concurrent with credit for time served.
In case No. 20CF06237, the trial court sentenced defendant as follows: 16 months on count 1, one-third the middle term doubled by the strike; four years on count 2 stayed under Penal Code section 654; 180 days concurrent with credit for time served on count 3; and one year concurrent with credit for time served on count 4, plus two years for the on-bail enhancement. The court declined to dismiss the enhancements under section 1385, subdivision (c) because of public safety.
In case No. 21CF03670, the trial court sentenced defendant to 180 days concurrent. The court imposed a combined sentence for all three cases of nine years four months.
DISCUSSION
I
Penal Code section 1170, subdivision (b)(1) through (3)
Defendant contends the trial court erred in imposing an upper-term sentence that did not comply with section 1170, subdivision (b)(1) through (3), as amended by Senate Bill 567, which generally provides for midterm sentences and prohibits an upper-term sentence unless the facts underlying the aggravating circumstances are stipulated by the defendant, proven to the jury or judge beyond a reasonable doubt, or established by a certified record of conviction. The People agree the trial court erred-a necessary concession given the trial court's statement that the aggravating factors it considered were not stipulated or found true by a jury-but argue that the error was harmless. We agree with the People.
We apply the two-step process set forth in People v. Zabelle (2022) 80 Cal.App.5th 1098 (Zabelle) to determine whether the court's error was prejudicial under (1) the Sixth Amendment, and (2) Penal Code section 1170, subdivision (b), as amended by Senate Bill 567. (Zabelle, at p. 1113.)
Under the Sixth Amendment, a jury must find true beyond a reasonable doubt any fact that exposes a defendant to a greater potential sentence. (Zabelle, supra, 80 Cal.App.5th at p. 1110; Cunningham v. California (2007) 549 U.S. 270, 281.) However, a Sixth Amendment error is harmless if-applying the Chapman v. California (1967) 386 U.S. 18, 24 standard requiring reversal unless the error is harmless beyond a reasonable doubt-a jury would have found at least one aggravating factor true beyond a reasonable doubt. (Zabelle, at pp. 1111-1112; People v. Sandoval (2007) 41 Cal.4th 825, 839.)
Here, we conclude that the jury would have found true beyond a reasonable doubt that defendant suffered multiple prior convictions as an adult. Defendant admitted numerous prior convictions in pleading no contest to the charges in case Nos. 20CF03183 and 20CF06237. Thus, notwithstanding the trial court's statement that defendant had not stipulated to the aggravating circumstances nor were they proven to a factfinder beyond a reasonable doubt, the sentence complied with amended section 1170, subdivision (b) based on defendant's admissions. Therefore, no Sixth Amendment error occurred.
Regarding step two, sentencing error under amended Penal Code section 1170, subdivision (b), we apply the People v. Watson (1956) 46 Cal.2d 818 (Watson) standard for state law errors, which requires reversal if it is reasonably probable that defendant would achieve a more favorable result in the absence of error. (Watson, at p. 836; Zabelle, supra, 80 Cal.App.5th at pp. 1110, 1113-1114.) To conclude the error was harmless at this step, we must find the trial court still would have imposed the upper term absent the error. (Watson, at p. 836.) Put another way, we consider "whether it is reasonably probable that the trial court would have chosen a lesser sentence in the absence of the error." (Zabelle, at p. 1112.)
We conclude that the trial court would have imposed the upper term notwithstanding the elimination of any aggravating factor the trial court relied on that did not comply with amended Penal Code section 1170, subdivision (b). All three factors the trial court recited-prior convictions, prior prison terms, and committing new offenses while on PRCS-indicate that defendant's history of DUIs and recidivism were the overriding concerns in the court's decision to impose the upper term. Given these concerns, we conclude the trial court would not have imposed a lesser sentence, even if the only aggravating circumstance considered was defendant's admission in case Nos. 20CF03183 and 20CF06137 that he had suffered multiple DUI convictions within the last 10 years. These admissions established defendant's recidivism without more.
Moreover, as to the aggravating factor cited by the trial court that defendant committed new offenses while on PRCS, the trial court found defendant violated PRCS based on defendant's pleading no contest to the charges in case No. 20CF03183. While defendant did not expressly admit committing new offenses while on PRCS, the court's finding was a necessary consequence of defendant's pleading no contest to the charges. Since defendant admitted he committed the offenses charged and did not dispute that he was on PRCS at the time, defendant essentially admitted the facts underlying this factor. On that basis, we conclude that the trial court would not impose a lesser sentence, even if it found that this factor did not comply with Penal Code section 1170, subdivision (b)(1)-(3).
In conclusion, only the prior prison term factor relied on by the trial court did not comply with the restrictions in Penal Code section 1170, subdivision (b)(1)-(3). The absence of this factor would not have altered the trial court's decision to impose the upper term. Therefore, under Watson, the trial court's failure to comply with Penal Code section 1170, subdivision (b)(1)-(3) was harmless.
II
Mitigating Factors and Penal Code section 1170, subdivision (b)(6)(A)
Defendant contends the trial court erred in not considering (1) certain mitigating factors found in rule 4.423(b), (2) his alcoholism as a mitigating factor, and (3) the restrictions of Penal Code section 1170, subdivision (b)(6)(A). (AOB 25-31) We disagree.
Turning first to rule 4.423(b), defendant argues the trial court failed to consider the following mitigating circumstances stated in the rule: "(2) The defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime; (3) The defendant experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence, and it was a factor in the commission of the crime; (4) The commission of the current offense is connected to the defendant's prior victimization or childhood trauma, or mental illness as defined by [Penal Code] section 1385[, subdivision] (c); . . . (11) Multiple enhancements are alleged in a single case; . . . (13) An enhancement is based on a prior conviction that is over five years old."
This contention fails because the record does not affirmatively reflect that the trial court ignored any relevant factor. "Unless the record affirmatively indicates otherwise, the trial court is deemed to have considered all relevant criteria, including any mitigating factors." (People v. Holguin (1989) 213 Cal.App.3d 1308, 1317-1318 (Holguin); rule 4.409 [court is presumed to have considered all relevant factors unless the record affirmatively shows otherwise]; People v. Kelley (1997) 52 Cal.App.4th 568, 582 [same].) Moreover, "[t]he trial court is not required to set forth its reasons for rejecting a mitigating factor." (Holguin, at p. 1318; see also People v. Avalos (1996) 47 Cal.App.4th 1569, 1583; People v. Samayoa (1997) 15 Cal.4th 795, 860 [trial court's failure to mention mitigating evidence does not mean the court ignored it but simply indicates the court did not consider such evidence to have appreciable mitigating weight].)
Here, the record indicates that the trial judge considered the mitigating factors defendant claims were ignored.
The factors in rule 4.423(b)(2), (3), and (4) focus on mental illness and trauma. At one point, defendant requested mental health diversion under Penal Code section 1001.36, which led to an assessment by a social worker that defendant had a difficult life as a child that caused him to suffer from PTSD, depression, and social anxiety, which contributed to the commission of his offenses. These materials were referenced and included with the probation report, which the trial court read and signed. At the sentencing hearing, defense counsel also discussed the social worker's assessment but noted that defendant no longer sought mental health diversion. However, in arguing that the court should impose the middle term, counsel pointed out that defendant had been diagnosed "with multiple mental health conditions that are in the DSM. Legitimate mental health issues." We therefore conclude that the trial court considered defendant's mental illness and trauma.
Turning to rule 4.423(b)(11) and (13), which concern, respectively, multiple enhancements and enhancements more than five years old, defense counsel argued for dismissal of enhancements under the amendments to Penal Code section 1385, subdivision (b), made by Senate Bill No. 81 (Stats. 2021, ch. 721, § 1, effective Jan. 1, 2022). Counsel suggested that grounds for dismissing the enhancements defendant had admitted included: there were multiple enhancements alleged in a single case; the offense was connected to mental illness; the current offense is not a violent felony; and the enhancement is based on a prior conviction that is older than five years. In imposing sentence, the trial court stated it had considered striking enhancements because defendant's "strike is rather remote," and because of "the arguments surrounding mental health" defense counsel raised. However, the court declined to dismiss any enhancement, citing its statutory duty to consider danger to public safety. (See Pen. Code, § 1385, subd. (c)(2) [proof of mitigating circumstances set forth in statute weigh greatly in favor of dismissing enhancement, "unless the court finds that dismissal of the enhancement would endanger public safety"].) The court said: "The conduct underlying [defendant's] felony DUI cases presents this community with a tremendous risk. It's fortunate that nobody was hurt or killed while [defendant] was out drinking and driving in any of these cases. [¶] So the Court, while I've certainly considered the arguments surrounding mental health that [defense counsel] has raised, the Court has to balance those versus the Court's duty to take into account public safety in this community. So for those reasons, the Court is not going to strike the sentencing enhancements in this case." We therefore conclude the trial court considered but rejected these mitigating circumstances.
Defense counsel counted the strike based on defendant's 2007 burglary conviction as an enhancement. It is well established that the Three Strikes law is an alternative sentencing scheme, not an enhancement. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 527; People v. Jenkins (1995) 10 Cal.4th 234, 254; People v. Cressy (1996) 47 Cal.App.4th 981, 991; People v. Williams (2014) 227 Cal.App.4th 733, 744; People v. Frutoz (2017) 8 Cal.App.5th 171, 174, fn. 3; People v. Burke (2023) 89 Cal.App.5th 237, 243.)
Because the factors enumerated in rule 4.423(b) are not exhaustive (rule 4.423(c) [the court may consider any other mitigating factors that "reasonably relate to the defendant or the circumstances under which the crime was committed"]), defendant also argues that alcoholism was a mitigating factor the trial court should have considered. (People v. Simpson (1979) 90 Cal.App.3d 919, 928 [error in failure to consider alcoholism as mitigating factor].)
But the trial court did consider defendant's alcoholism. The social worker's letter, included with the probation report the trial court read, referred to defendant seeking relief from his mental health conditions "through self-medicating with drugs and alcohol," and the proposed treatment plan included one year in an alcohol and drug program. Further, defense counsel argued that defendant's poor choices "ha[ve] to do with his struggle with addiction" and "alcoholism . . . directly related to the charges . . . [is] part of the problem here." (People v. Reyes (1987) 195 Cal.App.3d 957, 961 (Reyes).)
In Reyes, we held that where a defendant has a substance abuse problem that he has failed to deal with despite repeated opportunities and the substance abuse problem is a substantial factor in the commission of crimes, "the need to protect the public from further crimes by that individual suggests that a longer sentence should be imposed, not a shorter sentence." (Reyes, supra, 195 Cal.App.3d at p. 963.) Here, the trial court articulated similar considerations, observing that defendant was given "a tremendous opportunity to prove that he was serious about recovery," when he was released to a program after his plea in case No. 20CF03183. But defendant not only left the program against the court's order, he committed another drunken driving felony. Therefore, as in Reyes, the need to protect the public from defendant's alcoholism made this condition a circumstance in aggravation, not mitigation.
Finally, turning to Penal Code section 1170, subdivision (b)(6)(A), the court did not consider the statute because defendant never raised it. This provision, also enacted by Senate Bill 567, states in relevant part that "unless the court finds the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense: [¶] (A) The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence."
The amendments to Penal Code section 1170, subdivision (b) became effective more than five months before the sentencing hearing in this case, yet defendant did not request relief under Penal Code section 1170, subdivision (b)(6)(A) or allude to the statute. Therefore, defendant has forfeited the argument on appeal. (People v. Scott (1994) 9 Cal.4th 331, 351; People v. Flowers (2022) 81 Cal.App.5th 680, 683-684, review granted Oct. 12, 2022, S276237.)
DISPOSITION
The judgment is affirmed.
I concur: KRAUSE, J.
I concur; as to part I of the Discussion, I concur in the result:
MAURO, Acting P.J.