Opinion
C098092
09-09-2024
THE PEOPLE, Plaintiff and Respondent, v. ANTOINE LAMAR BLESSETT, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 12F01121)
DUARTE, J.
Defendant Antoine Lamar Blessett appeals from his resentencing following remand from his prior appeal. He contends the court improperly limited his resentencing to the issues specifically identified in our remand instructions. He also claims his trial counsel was ineffective at arguing for a lower sentence. Finding no merit to these contentions, we affirm the judgment. The trial court is directed to prepare new abstracts of judgment as detailed in the Disposition.
FACTS AND PROCEEDINGS
The procedural history of defendant's first appeal is fully set forth in our prior opinion, People v. Blessett (Jan. 26, 2022, C074267) (nonpub. opn.). We summarize only the facts and history relevant to the present matter.
In 2013, a jury found defendant guilty of first degree murder (Pen. Code, § 187, subd. (a)) and possession of a firearm by a felon (§ 29800, subd. (a)). As to the murder, the jury found defendant: (1) personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)); (2) personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)); and (3) committed the murder for the benefit of a street gang (§ 186.22, subd. (b)(1)).
Undesignated statutory references are to the Penal Code.
At sentencing, the trial court denied defendant's Romero motion. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The court sentenced defendant to 25 years to life in prison for the murder (doubled to 50 years to life due to the prior strike), 25 years to life for the section 12022.53, subdivision (d) firearm enhancement, and 10 years for the gang enhancement. The court imposed the middle term of two years for the firearm possession conviction and stayed execution of that sentence. The court also stayed imposition of sentence for the remaining firearm enhancements.
If imposed pursuant to the three strikes law, as it appears to be, this sentence was required to be doubled to 4 years. (See People v. Vizcarra (2015) 236 Cal.App.4th 422, 436 [explaining that the trial court rendered an unauthorized sentence by failing to double the defendant's sentence as to all counts under the three strikes law].) No party raised this in briefing.
Defendant appealed, and another panel of this court concluded that certain gang expert testimony should not have been admitted at trial. (People v. Blessett, supra, C074267.) Though this error was harmless beyond a reasonable doubt as to the first degree murder verdict, the firearm possession verdict, and the firearm enhancement findings, the error compelled reversal of the gang enhancement finding. (Ibid.) We further concluded that: (1) the trial court erred in staying imposition of the sentence on the section 12022.5, subdivision (a) and 12022.53, subdivision (b) firearm enhancements; and (2) Senate Bill No. 620 (2017-2018 Reg. Sess.) applied retroactively and permitted the trial court to strike the firearm enhancements in this case. (People v. Blessett, supra, C074267.) We instructed that on remand "[t]he trial court will resentence defendant, where it is further directed to (1) consider whether to exercise its discretion to strike the section 12022.5, subdivision (a) and 12022.53, subdivision (b) firearm enhancements, and, in the event that the court declines to exercise its discretion to strike them (2) impose sentences on these enhancements and then stay execution of those sentences." (Ibid.)
One justice dissented in part, disagreeing that the inadmissible gang expert testimony was harmless beyond a reasonable doubt as to the murder conviction and firearm enhancements. (People v. Blessett, supra, C074267 (conc. &dis. opn. of Blease, J.).) Our Supreme Court denied defendant's petition for review. Justice Groban issued a dissenting statement saying he would grant review because there were significant questions as to whether the erroneous admission of gang evidence was harmless as to the murder conviction. (People v. Blessett, supra, C074267, review den. May 25, 2022, S273349 (dis. statement of Groban, J.).)
On remand, the trial court invited argument on whether it should strike the firearm enhancements "including the one that [it] pronounced sentence on, [section] 12022.53[, subdivision ](d)." Defense counsel argued that the court should "strike all the enhancements because [they] are essentially duplicative of the charges." He also pointed out "the new provisions under Penal Code [section] 1385," which "list[] the various reasons why it is in the interest of justice to strike enhancements."
The trial court ultimately declined to strike the firearm enhancements. After the court issued its decision, defendant said he believed "the information" the court had was "invalid," noting how he "wasn't given the right to speak at [his] trial." The court responded: "Your appellate attorney raised a lot of issues. The one that was meritorious was the gang [sic] because, frankly, the law changed.... [¶] So that Penal Code Section 186.2[, subdivision ](b)(1) is going to be struck....The only other issue before me is whether I should exercise my discretion to strike the firearm enhancement. That's it." "So the only issue for me is not the merits of your case. That was already litigated at trial. That was already litigated in your appeal. And as I said, your appellate lawyer raised a lot of issues. 93 pages worth of discussions by the appellate court. So they made their findings and their rulings. [¶] The only ones essentially that have merit was the gang [sic], and it is because the law changed. So if you need further clarification then your attorney would contact you after this hearing, but there is no need to delay this because that's the only issue before me."
The trial court sentenced defendant to 50 years to life in prison for murder and 25 years to life for the section 12022.53, subdivision (d) firearm enhancement. The court imposed the middle term of four years for the section 12022.5, subdivision (a) firearm enhancement and 10 years for the section 12022.53, subdivision (b) firearm enhancement, but stayed execution of both of those sentences. Lastly, the court sentenced defendant to four years (double the middle term due to the prior strike) for the firearm possession conviction and stayed that term under section 654. In doing so, the court remarked that it was imposing the four-year sentence at resentencing due to the prior strike.
Defendant timely appealed. In his notice of appeal, defendant indicated the appeal was from the denial of a section 1172.6 petition. Defendant subsequently petitioned for leave to file an amended notice of appeal to include his resentencing hearing. We treated this petition as a motion to construe the appeal as encompassing the resentencing proceedings and granted the motion.
DISCUSSION
I
Full Resentencing
Defendant argues the trial court improperly confined the resentencing hearing "to the matters identified in this Court's remand orders" even though he was entitled to a full resentencing hearing.
It is well established that "when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.'" (People v. Buycks (2018) 5 Cal.5th 857, 893.) The People do not dispute that the full resentencing rule applied here but submit that defendant has forfeited his claim by not raising it below. We agree. "[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott (1994) 9 Cal.4th 331, 356.) Defendant never objected that the court improperly limited the resentencing hearing to only the issues identified in our remand order. Nor did defendant request that other aspects of his prior sentence be reexamined at the resentencing. Defendant maintains that doing so would have been futile. We are not convinced. Alerting the court to the perceived problem would have permitted the court to address the scope of its discretion and more precisely describe the issues it was considering.
In any event, the record indicates the trial court was aware of its sentencing discretion. Absent evidence to the contrary, we presume the trial court knew and followed the law. (People v. Ramirez (2021) 10 Cal.5th 983, 1042.) Defendant insists this presumption is rebutted here because the court indicated that the "only issue" to be addressed was whether to strike the firearm enhancements. We reject this reading of the record. As we set forth above, from the conversation between the court and defendant, it is clear that the court was responding to defendant's claim that his underlying trial had been unfair. Considered in context, the court's comments conveyed that the purpose of the hear was not to relitigate defendant's guilt but to resentence him. The court made this clear by saying, "the only issue for me is not the merits of your case. That was already litigated at trial."
Moreover, contrary to defendant's contention, the trial court did not limit the hearing to the matters identified in our remand order. In inviting argument, the court asked the parties to address whether it should strike the section 12022.53, subdivision (d) enhancement--an enhancement that our remand order did not specifically direct the trial court to consider. The court also imposed a stayed sentence of four years (as opposed to the original stayed term of two years) on the firearm possession conviction, taking into account defendant's prior strike. The court thus understood it had the discretion to consider all aspects of defendant's sentence. Defendant's (forfeited) claim to the contrary lacks merit.
The unauthorized nature of the original sentence as to this stayed count and its subsequent increase at resentencing was not raised as an issue in the parties' briefing. At oral argument, counsel for defendant suggested that increasing the sentence on that count was improper, but that was not a claim of error on appeal and does not appear to be relevant to the disposition of this case. (See People v. Serrato (1973) 9 Cal.3d 753, 764 disapproved on another ground in People v. Fosselman (1983) 33 Cal.3d 572, 583; People v. Vizcarra, supra, 236 Cal.App.4th at pp. 431-438.)
II
Ineffective Assistance of Counsel
Defendant next claims his counsel was ineffective for failing to raise other issues at resentencing. More specifically, defendant argues his trial counsel erred in failing to: (1) file another Romero motion; (2) direct the trial court's attention to the "mitigating circumstances contained" in the appellate dissents to argue that defendant was "at the low end of the culpability spectrum"; and (3) request a supplemental probation report and filed a sentencing brief.
To establish a claim for ineffective assistance of counsel, defendant must show his counsel's performance was deficient and that he suffered prejudice as a result. (People v. Mickel (2016) 2 Cal.5th 181, 198; Strickland v. Washington (1984) 466 U.S. 668, 687692.) We presume that "counsel's actions fall within the broad range of reasonableness, and [we] afford 'great deference to counsel's tactical decisions.'" (Mickel, at p. 198.) As our Supreme Court has observed, "certain practical constraints make it more difficult to address ineffective assistance claims on direct appeal rather than in the context of a habeas corpus proceeding." (Ibid.) This is because "[t]he record on appeal may not explain why counsel chose to act as he or she did. Under those circumstances, a reviewing court has no basis on which to determine whether counsel had a legitimate reason for making a particular decision, or whether counsel's actions or failure to take certain actions were objectively unreasonable." (Ibid.) We will reverse only if there is affirmative evidence that counsel had no rational tactical purpose for an act or omission. (Ibid.) If the record on appeal sheds no light on why trial counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one or there could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) A defendant thus bears a difficult burden when asserting an ineffective assistance claim on direct appeal. (Mickel, at p. 198.)
Defendant cannot establish deficient performance here, because legitimate tactical reasons could support trial counsel's approach to the resentencing. Counsel could have decided that defendant's best chance of obtaining relief, in light of our remand order, was to focus on having all the firearm enhancements stricken. Had the trial court stricken the enhancements, defendant's indeterminate term of 75 years to life in prison would have been reduced to 50 years to life. Counsel was not required to jeopardize this argument and risk alienating the court by also filing a Romero motion--especially given that the same judge had denied defendant's Romero motion at the original sentencing. Further, defense counsel did not solely rely on the points raised in our prior opinion, but also argued that the new provisions in section 1385 supported dismissal of the firearm enhancements.
As to defendant's remaining points, defense counsel could have reasonably determined: (1) the trial court was already aware of the dissenting statements from the prior appeal given the court's references to the appellate proceedings; (2) a supplemental probation report would not have benefited defendant due to defendant's postconviction conduct; and (3) written argument would have been no more effective than oral argument.
In his reply brief, defendant argues in passing that his trial counsel was ineffective because he "did not object when the court increased a stayed term." We do not consider underdeveloped arguments (People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2) or arguments raised for the first time in reply (People v. Tully (2012) 54 Cal.4th 952, 1075). In any event, any objection by trial counsel would have been without merit (see fns. 2 & 3, ante) and thus would not support a claim of ineffective assistance of counsel. (See People v. Lucero (2000) 23 Cal.4th 692, 732 [" 'Counsel may not be deemed incompetent for failure to make meritless objections' "].)
Defendant also fails to establish prejudice. There is no showing that a second Romero motion, a supplemental probation report, a sentencing brief, or citation to the appellate dissents would have made any difference in the outcome. Defendant only argues that prejudice is "[m]anifest" from the record. This falls far short of what is necessary to prevail on a claim of ineffective assistance of counsel. (See People v. Montoya (2007) 149 Cal.App.4th 1139, 1147 ["In demonstrating prejudice, the appellant 'must carry his burden of proving prejudice as a "demonstrable reality," not simply speculation as to the effect of the errors or omissions of counsel' "].)
III
Errors in Abstract of Judgment
The parties agree, as do we, that three errors in the abstract of judgment warrant correction by the trial court. First, the abstract incorrectly includes the gang enhancement under section 186.22, subdivision (b)(1) that we reversed and that the People moved to dismiss on remand. Second, defendant's stayed determinate term for possession of a firearm is incorrectly included on the indeterminate abstract of judgment. Lastly, the court failed to update defendant's custody credits for actual time served upon resentencing. (See People v. Buckhalter (2001) 26 Cal.4th 20, 29 ["when a prison term already in progress is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody"].)
The People also correctly point out that the abstract mistakenly lists an enhancement under section 12022.53, subdivision (h) and omits the enhancement under section 12022.53, subdivision (b).
Finally, defendant posits that the abstract of judgment should reflect the term imposed for the stayed firearm enhancements. We note that the abstract indicates that the enhancements have been stayed without specifying the term imposed, in accordance with the form's instructions.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare a new indeterminate abstract of judgment that includes: (1) deletion of the section 29800, subdivision (a)(1) firearm possession conviction, the section 186.22, subdivision (b)(1) gang enhancement, and the section 12022.53, subdivision (f) firearm enhancement; (2) addition of the section 12022.53, subdivision (b) firearm enhancement; and (3) a recalculation of actual credits pursuant to People v. Buckhalter, supra, 26 Cal.4th at page 23. The trial court is further directed to prepare a determinate abstract of judgment for the firearm possession conviction.
The trial court is directed to send a certified copy of the new abstracts of judgment to the Department of Corrections and Rehabilitation.
We concur: Earl, P. J., Krause, J.