Opinion
A158441
08-18-2020
THE PEOPLE, Plaintiff and Respondent, v. ANDREW NICHOLAS AZBILL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. Nos. CR943585, CR943745A, CR954388)
Defendant Andrew Nicholas Azbill was sentenced to an aggregate term of 10 years in state prison for judgments of convictions entered in case No. CR943585 (CR943585), case No. CR943745A (CR943745A), and case No. CR954388 (CR954388). In this consolidated appeal he challenges the terms of imprisonments imposed for assault in CR943585, battery in CR943745A, and perjury in CR954388.
We conclude the challenges to the sentences imposed for assault and perjury are without merit and, accordingly, we affirm the judgments in CR943585 and CR954388. We remand for resentencing in CR943745A solely to allow the trial court to determine in the first instance whether execution of the sentence imposed for battery should be stayed under Penal Code section 654 , and we affirm the judgment in all other respects.
All further statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
I. 2017 Proceedings - CR943585 and CR943745A
Defendant filed a request for judicial notice of "the record in his prior appeal" in CR943745A (People v. Azbill (Jun. 18, 2018, A152021) [nonpub. opn.]). In his opening brief, defendant clarifies that his request is limited to the documents attached to the request for judicial notice. We grant the request for judicial notice of those documents attached to the request for judicial notice.
a. Trial and Change of Plea
The Lake County District Attorney filed two informations against defendant charging him with felony and misdemeanor offenses committed over the course of 12 hours during the 2016 Fourth of July weekend. The July 3 offenses charged in CR943585 arose from an incident during which defendant physically assaulted a female victim by repeatedly hitting her in the face with an open hand. The July 4 offenses charged in CR943745A arose from an incident during which defendant and a codefendant took a male victim to a remote area and battered him until the victim was able to escape. During this incident, the victim's vehicle and personal items were stolen by defendants.
A jury trial was held in June 2017 on the July 4 offenses charged in CR943745A. Defendant was found guilty of felony second-degree robbery (§ 211) (but not guilty of causing serious bodily injury during the commission of the robbery), felony battery resulting in the infliction of serious bodily injury (§ 243, subd. (d)), misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code, § 11364), and misdemeanor resisting a peace officer (§ 148, subd. (a)(1)). After the conclusion of the trial, defendant admitted to an on-bail enhancement alleging that at the time of the July 4 offenses he was out of custody on bail concerning the charges filed in CR943585. (§ 12022.1).
Five days following the jury trial, defendant changed his not guilty pleas concerning the July 3 offenses charged in CR943585. He pleaded no contest to felony assault by means likely to cause great bodily injury (§ 245, subd. (a)(4)), conditioned on the dismissal of four other felony counts and two misdemeanor counts. Defendant confirmed in his written plea form that he was ineligible for probation and, in both the written plea form and at the change of plea proceeding, he confirmed his understanding that "any time" imposed on the assault conviction would "run concurrently to the sentence" in CR943745A.
b. Sentencing
At the end of July 2017, defendant appeared for sentencing in both cases. The court suspended sentences in both cases and ordered two five-year grants of probation on standard terms and conditions. The court specifically advised defendant that if he violated probation it was likely he would be sentenced to "the upper term," and would be "in prison for a long time." The record does not reflect any other reference to the sentences that might be imposed for a violation of probation. II. 2019 Proceedings - CR943585 , CR943745A, and CR954388
a. First Violation of Probation (VOP) Proceeding in CR943585 and CR943745A and Trial Proceeding in CR954388
In March 2019, after defendant had been on probation for approximately two years, the Lake County Probation Department filed a VOP report, seeking to revoke probation in CR943585 and CR943745A (first VOP proceeding). On March 25, the court summarily revoked defendant's probation and scheduled a hearing. After a contested hearing, the court found defendant had violated his probation. At a hearing on May 28, the court stated it was inclined to reinstate the two grants of probation, directed the probation department to file a supplemental report on appropriate terms and conditions of probation, and continued the matter.
All further dates are in 2019, except as specifically noted otherwise.
Approximately one week after the May 28 hearing, the Lake County District Attorney filed a complaint charging defendant with felony perjury (§ 118, subd. (a)) in CR954388. The complaint alleged defendant had made false statements when he testified at the May 28 proceeding and further alleged defendant had sustained a prior strike conviction (§§ 667(b), 1170.12, subd. (d)). The judge presiding over the proceedings disqualified himself, and all three cases were reassigned to another judge who was new to these cases and presided at all subsequent proceedings.
On June 12, the Lake County Probation Department filed another VOP report seeking to revoke defendant's probation in CR943585 and CR943745A based, in pertinent part, on his commission of perjury at the May 28 hearing (second VOP proceeding).
b. Change of Plea Proceeding in CR954388 and Admission in Second VOP Proceeding in CR943585 and CR943745A
On June 24, defendant pleaded no contest to the perjury charge on condition that the prior strike conviction allegation would be dismissed in CR954388. Immediately following the plea, the court adjudicated the second VOP proceeding and defendant admitted to violating probation in CR943585 and CR943745A based on his plea to perjury.
Before accepting the plea and VOP admissions, the court confirmed defendant's understanding that there was "no agreement as to sentence," and he was subject to an aggregate sentence of "up to [10] years in state prison at 85 percent time" in all three cases. The court further confirmed that the 10-year sentence could be achieved only if the court imposed the principal term of five years (the upper term) for robbery, and three consecutive subordinate terms of one year each (one-third the middle terms) for battery, assault, and perjury, plus two years for the on-bail enhancement.
c. Sentencing
On July 5, the probation department filed a report with its sentence recommendations regarding the three cases. The report recommended the court deny probation and sentence defendant to an aggregate term of nine years in state prison based upon four circumstances in aggravation and one circumstance in mitigation. The report also described the 28-year-old defendant's criminal history, which included five adult misdemeanor convictions (two for Vehicle Code violations and one each for public intoxication, vandalism, and battery on a peace officer) for which he was placed on summary probation for two years in 2011, for two years in 2012, and for three years in 2013; it appeared he had almost completed but was still on summary probation when he committed the July 2016 offenses.
At the July 22 sentencing, all counsel stipulated to admission of the July 5 probation report and the court confirmed it had read and considered the report. The prosecutor informed the court he was standing in for the prosecutor who had represented the People in previous court proceedings on the three cases. Similarly, defense counsel informed the court that he had not represented defendant at the earlier 2017 proceedings held in CR943585 and CR943745A.
Defense counsel argued the convictions in the three cases should be treated "effectively" as one transaction for sentencing and urged the court to reinstate defendant to probation based on a finding of unusual circumstances. Alternatively, counsel argued for an aggregate term of four years, consisting of the principal term of four years (the middle term) for robbery, and concurrent subordinate terms on the remaining felony and misdemeanor offenses. According to counsel, a concurrent term was warranted for battery because defendant "used the same force" to commit both the robbery and battery against a single victim, and a concurrent term for perjury was warranted because the perjury was "related" to the robbery as the offense would not have occurred "but for" the fact that defendant was facing "the potential" of a prison sentence on the robbery conviction at the May 28 hearing.
The prosecutor argued for the upper term of five years for robbery. He noted that defendant knew that if he failed on probation he would likely be resentenced to the upper term, and the record showed he had "failed rather spectacularly." He urged the court to impose consecutive terms for robbery and battery based on the factual description of those offenses in a 2017 probation report prepared for sentencing. According to that earlier report: defendants took the victim "out of the casino, transported him . . . to [a] campground, then committed the beating, then took the Acura, and then took [the car] down through Sonoma County . . . where they then checked into a hotel . . . . So the [robbery] was significantly separated from the [battery] in terms of both time and distance. [The crimes] may have started at the same time, but that robbery and the theft of that vehicle continued on out through into the neighboring county."
The court first recited its reasons for rejecting defendant's request to be placed on probation. It then found four aggravating circumstances (violent conduct indicating a serious danger to society; numerous prior convictions; on probation at the time of the crimes; unsatisfactory prior performance on summary probation), and one mitigating circumstance (defendant "voluntarily acknowledged wrong doing at an early stage of the process," but "it looks like the prior [strike conviction] allegation was dismissed, . . ., so it gets somewhat less weight than otherwise it would"). The court explained that it was imposing consecutive terms because the crimes and their objectives were largely independent of one another; specifically, two of the crimes involved separate acts of violence and were committed at different times and in different places (assault in CR943585 and robbery/battery in CR943745A).
The court found the probation department had improperly designated the perjury conviction as the principal term, instead of the robbery conviction. After correctly designating the robbery conviction as the principal term, the court imposed an aggregate sentence of ten years in state prison as follows: the principal term of five years for robbery, and three consecutive subordinate terms of one year each for battery, assault, and perjury, plus two years for the on-bail enhancement; the court imposed concurrent terms on the remaining misdemeanor offenses.
When imposing the separate terms, the court noted that: (a) the upper term for robbery was warranted because the aggravating circumstances outweighed the one in mitigation; (b) the consecutive term for battery was warranted "as recommended by the probation department because [the robbery and battery] did occur at significantly different times. It was the same victim on the same day but not the same location and there was time in between. Time to reflect on what they did, and they did it anyway"; and (c) the consecutive one-year term for perjury was warranted for reasons already given, namely that the crimes and their objectives were predominantly independent of one another.
Defendant timely appealed the judgments entered in all three cases.
DISCUSSION
1. Assault Case (CR943585)
Defendant argues the court was not authorized to impose a consecutive term for the assault conviction because his plea bargain was made on condition that any sentence imposed for assault would "run concurrently" to the sentence imposed in CR943745A (robbery/battery). This argument is foreclosed by the well-established rule that "when 'a defendant granted probation as a part of plea bargain violates that probation, subsequent sentencing is not limited by the terms of the original plea.' " (People v. Segura (2008) 44 Cal.4th 921, 934 (Segura), quoting People v. Martin (1992) 3 Cal.App.4th 482, 487 (Martin), italics added by Segura court; citing, inter alia, People v. Jones (1982) 128 Cal.App.3d 253, 262 (Jones), and People v. Turner (1975) 44 Cal.App.3d 753, 757 (Turner).)
For example, in Jones, supra, 128 Cal.App.3d 253, the parties entered into a plea agreement expressly conditioned on Jones not being sentenced to state prison for a term in excess of two years. (Id. at p. 257.) The court accepted the plea and granted a four-year term of probation conditioned on Jones serving one year in county jail. (Ibid.) After Jones violated his probation, the court terminated probation and imposed a sentence of three years in state prison. (Ibid.) Jones appealed, arguing that the three-year sentence violated his negotiated guilty plea limiting any sentence to two years. (Ibid.) The appellate court disagreed, finding no violation because Jones had received the benefit of his plea bargain when he was placed on probation at the initial sentencing proceeding and Jones, as a probationer, could be sentenced to prison upon revocation of probation to a longer term than agreed upon at the time of his negotiated guilty plea. (Id. at pp. 254, 262.)
Defendant concedes Jones does not support his position, and asserts in his reply brief that he intended to cite to a case discussed within Jones, People v. Alkire (1981) 122 Cal.App.3d 119 (Alkire), which held that a sentence "lid" agreed to as part of a plea bargain limited the length of sentence that could be imposed following revocation of probation (id. at p. 122). However, the Jones court found Alkire's holding "untenable" (Jones, supra, 128 Cal.App.3d at p. 261) and instead elected to follow Turner, supra, 44 Cal.App.3d 753. In Turner, the appellate court found no violation of Turner's plea bargain by the imposition of a state prison sentence, explaining: "There was nothing in this plea providing for what would happen if probation were violated. Needless to say, such a bargain would be difficult to negotiate since neither party would know in advance what the violation of probation might be. Here, after the violation occurred, there was no plea bargain involved because the bargain contemplated the initial sentencing proceeding only. It was within the discretion of the trial court to look at the situation anew . . . ." (Id. at p. 757.) Moreover, the court that authored Alkire has since repudiated its decision in Alkire and, instead, expressly adopted the reasoning in Jones. (People v. Hopson (1993) 13 Cal.App.4th 1, 3.)
Defendant also asserts Jones is factually distinguishable from his case. He argues that while the initial grant of probation did not violate the terms of the plea bargain, nevertheless the grant of probation did not comply with the condition of concurrent terms, which remained extant and enforceable when a prison sentence was ultimately imposed in CR943745A at the July 2019 sentencing. This argument does not call into question the application of the rule expressed in Turner and its progeny in this case.
In sum, the sentence imposed on July 25, 2017 complied with the terms of the plea bargain for the assault conviction. The suspension of imposition of sentence and the selection of probation, a more lenient sentence than the one agreed to by defendant and the People, was completely "compatible with the plea bargain. '[T]o the extent that the analogy of a plea bargain to a contract with the court is apt, the court [thereby] fulfill[ed] its responsibilities.' " (Jones, supra, 128 Cal.App.3d at p. 262.) The court commented that defendant's violation of probation would likely result in a sentence of the upper term and substantial time in prison, and there was no further discussion or agreement limiting the penalty in the event of a violation of probation. Consequently, "after the violation occurred, there was no plea bargain involved because the bargain contemplated the initial sentencing proceeding only." (Turner, supra, 44 Cal.App.3d at p. 757.)
We therefore reject defendant's argument that his constitutional and statutory rights to fulfillment of his original plea bargain were violated by the imposition of a consecutive term on the assault conviction following revocation of probation. Having had the benefit of his plea bargain, defendant was not then granted " 'a perpetual all-time license . . . to engage in criminal activity thereafter, or otherwise violate his probation.' A consummated plea bargain does not insulate a defendant from the consequences of his future misconduct. A defendant gets the benefit of his bargain only once. Like time, a plea bargain once spent is gone forever." (Jones, supra, 128 Cal.App.3d at p. 262; see Segura, supra, 44 Cal.4th at p. 934; Martin, supra, 3 Cal.App.4th at p.489 [court had discretionary authority to impose a longer term of imprisonment notwithstanding the terms of the plea bargain].)
In light of our determination, we do not address the parties' contentions regarding forfeiture due to defendant's failure to lodge an objection in the trial court and the appropriate remedy for a violation of the plea bargain.
2. Robbery/Battery Case (CR943745A)
Defendant contends the court erred by imposing consecutive terms for robbery and battery without staying the sentence on the latter conviction under section 654, and he asks us to modify the judgment accordingly. The People concede a modification of the sentence is warranted based on section 654. We conclude the appropriate remedy is to remand for resentencing to allow the trial court in the first instance to make the section 654 decision after a full consideration of the issue on a proper record.
" 'Section 654 does not preclude multiple convictions but only multiple punishments for a single act or indivisible course of conduct. [Citations.]' [Citation.] 'The proscription against double punishment in section 654 is applicable where there is a course of conduct which . . . comprises an indivisible transaction punishable under more than one statute . . . . The divisibility of a course of conduct depends upon the intent and objective of the actor . . . .' " (People v. Coleman (1989) 48 Cal.3d 112, 162.) "Whether a defendant had multiple intents or objectives in committing multiple crimes is generally a question of fact for the sentencing court. [Citation.] 'When a trial court sentences a defendant to separate terms without making an express finding the defendant entertained separate objectives, the trial court is deemed to have made an implied finding each offense had a separate objective.' [Citation.] Such findings will be upheld on appeal if supported by substantial evidence. [Citation.]" (People v. Jimenez (2019) 32 Cal.App.5th 409, 424-425.)
Defendant acknowledges the sentencing court relied on the independence of the crimes and their objectives in imposing consecutive terms. He asserts, however, that the court's stated findings are based on a misinterpretation of the July 5, 2019 probation report and are in conflict with the actual record of the trial proceedings, specifically the reporter's transcript of the preliminary hearing testimony in CR943745A. We note that this transcript was included in the Clerk's Transcript submitted on this appeal, but was not presented to the trial court at sentencing.
It is well settled that a section 654 error may be raised for the first time on appeal under the narrow exception to the forfeiture doctrine for unauthorized sentences because such an error is normally readily corrected independent of any factual issues. (People v. Hester (2000) 22 Cal.4th 290, 295; People v. Scott (1994) 9 Cal.4th 331, 354 & fn. 17 (Scott).) While defendant's argument is subject to forfeiture insofar as it is premised on the sentencing court's alleged misunderstanding of the information in the July 5, 2019 probation report, the People concede on this issue and we exercise our discretion to review the merits of defendant's section 654 claim. (People v. Welch (1993) 5 Cal.4th 228, 234 [failure to object and make an offer of proof at the sentencing hearing concerning alleged errors in the probation report waives the claim on appeal].)
The record before us does not allow us to uphold multiple punishments for the robbery and burglary. Unlike the case where the trial court's reasons for imposing consecutive terms may also support its section 654 decision based on evidence of the offenses as charged and established at trial (see, e.g., People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1005-1006), in this case neither the sentencing court nor counsel present at the sentencing had any involvement with the trial.
Further, the court's reasons supporting its decision for imposing consecutive terms is not coextensive with its "separate" section 654 decision. (People v. Deloza (1998) 18 Cal.4th 585, 594; see § 1170.1, subd. (a) [general rules governing imposition of consecutive terms is "subject to section 654"].) The key factor in the court's section 654 decision is a determination of "defendant's intent and objective, not the temporal proximity of his offenses . . . ." (People v. Harrison (1989) 48 Cal.3d 321, 335, italics added.) In this case, evidence of defendant's intent and objective in committing the battery and robbery was not included in either the 2017 or 2019 probation reports considered at sentencing. Accordingly, any implicit finding made by the sentencing court regarding defendant's intent and objective is without support in the information provided to the court.
Where a trial court's implicit finding on section 654 cannot be upheld, we may either remand for resentencing or correct the sentence. (§ 1260 [appellate court may reverse, affirm, or modify a judgment or may remand the cause for further proceedings "as may be just under the circumstances"].) While the parties urge us to modify the sentence imposed for battery, we decline to do so based on portions of the trial court proceedings not provided to the sentencing court.
Instead, we remand for resentencing to allow the trial court in the first instance to make the section 654 decision after a full consideration of the issue. At the resentencing, defendant may renew his section 654 argument and present any relevant evidence. If the trial court determines multiple punishments are not permissible under section 654, it must vacate the consecutive one-year term and impose a full consecutive three-year term and then stay that term under section 654. (People v. Relkin (2016) 6 Cal.App.5th 1188, 1197-1198 [" '[t]he one-third-the-midterm rule of section 1170.1, subdivision (a), only applies to a consecutive sentence, not a sentence stayed under section 654;' " "[t]o effectuate section 654, the trial court must impose a full term and stay execution of that term"].) We express no opinion as to how the trial court should rule on the section 654 issue.
3. Perjury C ase (CR954388)
Defendant argues the court abused its discretion in imposing a consecutive one-year term on his perjury conviction "without any discernable justification." He concedes the court stated its reason for its sentencing choice, finding that all of his crimes and their objectives "were predominantly independent of each other." He complains, however, that "in the absence of a clearer explanation for this sentencing choice," the sentence appears to be "excessively punitive," and the court's comments at sentencing demonstrate it misunderstood the probation report's recommendations. He alternatively argues that, if we find his claim of error is forfeited, his trial counsel was ineffective for failing to make the appropriate objection.
Because defendant made no objection to the sentence for the perjury conviction on the grounds he asserts on appeal, his claim of error is forfeited for review. (See Scott, supra, 9 Cal.4th at p. 356 ["complaints about the manner in which the trial court . . . articulates its supporting reasons cannot be raised for the first time on appeal"]; People v. Evans (1983) 141 Cal.App.3d 1019, 1021 ["any objection to the contents of a probation report . . . relied on by the sentencing court must be made in the superior court or is waived"].)
Further, we find no merit to defendant's ineffective assistance argument. "In order to prevail upon a claim of ineffective assistance of counsel, [defendant] 'must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice.' " (People v. Jennings (2000) 81 Cal.App.4th 1301, 1318 (Jennings).) Here, we do not need to determine whether trial counsel's performance was deficient because we may dispose of defendant's claim "on the ground of lack of sufficient prejudice." (Strickland v. Washington (1984) 466 U.S. 668, 697.)
To demonstrate prejudice, defendant must affirmatively show that there is " ' "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." [Citations.]' [Citations.]" (Jennings, supra, 81 Cal.App.4th at p. 1318.) Here, the sentencing court found four aggravating factors, which are more than sufficient to support both the upper term for robbery and the three consecutive terms imposed for battery, assault, and perjury. (People v. Osband (1996) 13 Cal.4th 622, 732 [a single aggravating factor is a sufficient basis for a sentencing choice].) Thus, we are confident that if we were to remand the court would impose the same sentences and not repeat its comments challenged on appeal. Having failed to show his trial counsel's failure to object was prejudicial, defendant's claim of ineffective assistance fails.
DISPOSITION
The judgment in case No. CR943585 is affirmed. The judgment in case No. CR954388 is affirmed. In case No. CR943745A, we remand the matter to the trial court solely for the purpose of resentencing consistent with our opinion; in all other respects, the judgment is affirmed.
/s/_________
Petrou, J. WE CONCUR: /s/_________
Siggins, P.J. /s/_________
Jackson, J.