Opinion
B314999
03-29-2023
THE PEOPLE, Plaintiff and Respondent, v. LLOYD JOHNSON, Defendant and Appellant.
Richard Lennon and Tanya Dellaca, 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, Assistant Attorney General, Kenneth C. Byrne and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA450691, Henry J. Hall, Judge.
Richard Lennon and Tanya Dellaca, 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, Assistant Attorney General, Kenneth C. Byrne and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
MOOR, J.
In 2017, the jury convicted Llyod Johnson of robbery. (Pen. Code, § 211.) Following his first appeal in this court, we remanded the matter to the trial court to determine whether to exercise its discretion to grant pretrial diversion pursuant to section 1001.36 or, if not, to determine whether to exercise its discretion to strike the five-year enhancement. The court found pretrial diversion inappropriate, declined to strike the enhancement, and reimposed the original 15-year sentence.
All further statutory references are to the Penal Code unless otherwise indicated.
Section 1001.36 became effective on June 27, 2018. (People v. Williams (2021) 63 Cal.App.5th 990, 995.) The statute creates a pretrial diversion program for certain defendants with mental health disorders and "applies retroactively to all cases in which the judgment is not yet final." (Ibid.)
We take judicial notice of our prior opinion in People v. Johnson (Oct. 23, 2019, B291454) [nonpub. opn.].
Johnson now contends that the recent amendments to section 1170 pursuant to Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567)) and Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Assembly Bill 124) that became effective after his 2020 resentencing hearing require remand for resentencing. The People concede that Senate Bill 567 and Assembly Bill 124 retroactively apply to Johnson's case, but argue remand is futile, as the record clearly demonstrates the trial court would reimpose the original sentence.
We affirm the trial court's judgment.
PROCEDURAL HISTORY
Procedural History Prior to Resentencing
The jury found Johnson guilty of second degree robbery for forcibly taking a wallet. (§ 211.) In bifurcated proceedings, the trial court found true the allegations that Johnson suffered five prior serious and/or violent felonies within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and suffered one prior conviction of a serious felony within the meaning of section 667, subdivision (a)(1). The prior strikes included four robberies and one murder arising from the same case in 1970. The trial court dismissed four of Johnson's prior strikes pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and proceeded to sentence Johnson as a second striker.
With respect to the sentence, the trial court stated that it was "torn between" imposing the middle term and the high term doubled, sentences of 11 and 15 years, respectively. The court decided to impose the high term because the prior strike was not Johnson's first offense; he had several prior offenses that resulted in juvenile court commitments.
Defense counsel argued that Johnson had been in prison since 1970, which was close to his entire life. Johnson was 66 years old at the time of the hearing and would be 81 years old when released. The court responded that it had taken Johnson's advanced age and his extended time in prison into account when it struck the prior strikes and imposed a determinate term rather than a life sentence.
The court observed that Johnson was on parole at the time of the offense and subject to lifetime commitment on the basis of his parole violation. Although this did not factor into the court's decision, the court observed that as a practical matter the sentence the court imposed would not impact the duration of his incarceration.
The trial court observed, "[T]his is the most difficult sentencing case I've ever had." The court was sympathetic to the fact that Johnson had served a very long sentence for his prior convictions, and recognized that the punishment should be proportionate to the nature of the present offense, which "was nothing more, nothing less than a purse snatch." The court also considered that Johnson was only 19 years old when he was incarcerated in the prior case. Weighed against these mitigating factors were the fact that the prior robberies Johnson committed involved multiple victims-one of whom was murdered-and Johnson's significant criminal history. Additionally, Johnson was on parole for the prior strikes for only a short period of time before he committed the present robbery. The victim in the instant robbery, like those in the earlier offenses, was relatively defenseless. The court expressed concerns for public safety.
The trial court balanced these factors when it chose to impose a determinate sentence rather than a life sentence. The court then found the high term was the appropriate determinate sentence in light of the aggravating factors. Johnson was sentenced to 15 years in prison, consisting of the high term of five years, doubled to 10 years under the three strikes law, plus an additional five years for the section 667, subdivision (a)(1) enhancement.
Johnson timely appealed. We conditionally reversed the judgment and remanded the matter to the trial court with directions to consider whether to exercise its discretion to grant pretrial diversion pursuant to section 1001.36 or, if not, to consider whether to exercise its discretion to strike the five-year section 667, subdivision (a)(1) enhancement.
The Resentencing Hearing
Prior to resentencing Johnson, the trial court informed the parties that it intended to reinstate the original sentence and that it did not believe the case was appropriate for mental health diversion.
At the hearing, defense counsel represented that Johnson was evaluated and had no apparent cognitive issues. Defense counsel asked the court to consider the fact that Johnson was now 69 years old and to sentence him to a lesser term to permit Johnson to have time outside of prison before his death.
The court stated that Johnson's prior convictions were for four robberies and a murder, and Johnson had been on parole at the time he committed the instant robbery. "And I struggled, if you will recall, mightily with whether I was going to give him that third strike 30-year-to-life sentence . . ., and I ended up giving him the determinate sentence based on exactly the factors you're talking about. I think that is the right decision."
With respect to mental health diversion, the court stated it had reviewed the reports previously prepared by three mental health experts and found nothing to indicate that Johnson's depression was a "significant factor" in the commission of the robbery as required to qualify for diversion pursuant to section 1001.36. The court noted that Dr. Ann L. Walker's report, upon which this court relied in remanding the matter after the prior appeal, did not link Johnson's depression to the crime in any way. The court was satisfied that Johnson's depression did not "substantially contribute" to the robbery. No new evidence had been presented to the contrary. The court alternatively ruled that, even if Johnson were eligible for diversion, the court would find him unsuitable because Johnson would pose an unreasonable danger to the community. In addition to the factors the trial court considered when reimposing the upper term, the court found that the victims of the prior strike crimes were vulnerable senior citizens, and the present case also involved a vulnerable senior citizen.
The court again referenced its struggle regarding the appropriate sentence, but stated definitively that "the question in my mind at that time was never whether Mr. Johnson should be released, but whether he should receive a sentence of 30 years to life or whether I strike some of the strikes and sentence him to a determinate term." The court declined to exercise its discretion to strike the section 667, subdivision (a)(1) five-year sentence for the reasons that it had already articulated. The court summarized, "I did choose what I thought to be the most lenient sentence that the crime and his criminal history allowed, that is, the maximum determinate sentence, and . . . believe that is the correct sentence." The court reimposed a sentence of 10 years, to be served concurrently with any other sentence that Johnson was currently serving, plus the five-year term pursuant to section 667, subdivision (a)(1).
DISCUSSION
On October 8, 2021, the governor approved a trio of bills effective January 1, 2022 that proposed similar amendments to section 1170-Senate Bill 567and Assembly Bill 124, which are at issue in this appeal, and Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Assembly Bill 1540), which is not implicated here. (See, e.g., People v. Jones (2022) 79 Cal.App.5th 37, 44, fn. 11.) As the last bill approved by the Governor, Senate Bill 567 prevails over Assembly Bill 124 and Assembly Bill 1540. (Gov. Code, § 9605, subd. (b); see, e.g., In re Thierry S. (1977) 19 Cal.3d 727, 738-739; Jones, at p. 44, fn. 11.) The parties, as has become common practice, refer to the amendments to section 1170, subdivisions (b)(6) and (b)(7), which do not conflict with Senate Bill 567, as having been effected by Assembly Bill 124. For ease of reference, we will do the same.
When Johnson was resentenced, former section 1170, subdivision (b) gave the court broad discretion to decide whether to impose a term of imprisonment for an offense with a triad of possible punishments. Johnson contends that his case should be remanded for resentencing because Senate Bill 567 and Assembly Bill 124 were not in effect at the time, so the trial court did not consider the new legislation at the time the court imposed the upper term of imprisonment. The People correctly concede that Senate Bill 567 and Assembly Bill 124, which became effective while Johnson's case was pending on appeal, apply here (see People v. Zabelle (2022) 80 Cal.App.5th 1098, 1108-1109 [holding Sen. Bill 567 retroactive]; People v. Banner (2022) 77 Cal.App.5th 226, 240 (Banner) [holding Assem. Bill 124 retroactive]; People v. Vieira (2005) 35 Cal.4th 264, 305-306 [conviction not final while appeal pending]), but argue that remand is not necessary because the error is harmless. We agree with the People.
Although we frame our discussion in terms of the trial court's error for purposes of analyzing harmlessness, the trial court's choice of sentence was not error at the time of the resentencing hearing. It has become so as a result of later-enacted legislation.
Senate Bill 567
As relevant here, Senate Bill 567 amended section 1170, former subdivision (b)(1) to make the middle term the presumptive sentence for a term of imprisonment. The court may impose a higher sentence "only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial." (§ 1170, subd. (b)(2).)
There is an exception to the requirement that the finding must be made at a trial held before a jury: "the 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." (§ 1170, subd. (b)(3).)
A trial court's failure to comply with the requirements of section 1170, subdivisions (b)(1)-(b)(3) is reviewed for harmless error. (People v. Lopez (2022) 78 Cal.App.5th 459, 465-466; People v. Zabelle, supra, 80 Cal.App.5th at pp. 1110-1113.) We conduct a two-part inquiry in this regard. A defendant's federal constitutional right to a jury trial "proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant." (Cunningham v. California (2007) 549 U.S. 270, 274-275.) When the trial court relies on an aggravating factor not stipulated to or found true beyond a reasonable doubt by the court or a jury, the error must be reviewed for harmlessness under Chapman v. California (1967) 386 U.S. 18, which" 'requires reversal unless the error is harmless "beyond a reasonable doubt." '" (Zabelle, at p. 1110.)" 'The failure to submit a sentencing factor to a jury may be found harmless if the evidence supporting that factor is overwhelming and uncontested, and there is no "evidence that could rationally lead to a contrary finding." '" (Lopez, at p. 465.) Even if we conclude that a finder of fact would have found an aggravating factor true beyond a reasonable doubt, "we still must grapple with the trial court's reliance on other aggravating circumstances inconsistent with the current requirements of section 1170." (Zabelle, at p. 1112.) In this second inquiry we determine whether the error was harmless under the state law standard for error articulated in People v. Watson (1956) 46 Cal.2d 818, 841. (Zabelle, at p. 1112.) "[W]e must find that the trial would have imposed the upper term sentence even absent the error. In particular, we must consider whether it is reasonably probable that the trial court would have chosen a lesser sentence in the absence of the error." (Ibid.)
At Johnson's resentencing hearing, the trial court identified two aggravating factors when it determined that the high term was appropriate: (1) that Johnson's prior convictions were for four robberies and a murder, and (2) that Johnson had been on parole at the time he committed the instant robbery. Just prior to the original sentencing hearing in this matter, the trial court presided over a bench trial at which Johnson's five prior convictions were proven true based on certified records of conviction. The trial court had authority to consider those convictions as an aggravating factor under section 1170, subdivision (b)(3). With respect to the trial court's second finding, Johnson did not contest that he was on parole at the time he committed the instant robbery, and he admits that fact in his opening brief. Even assuming that it was error for the trial court to rely on this factor at the time of sentencing because Johnson had not stipulated to the fact, any error was harmless beyond a reasonable doubt under Chapman in light of Johnson's later concession. (See People v. Lopez, supra, 78 Cal.App.5th at pp. 465-466.)
Moreover, we cannot conclude that it is reasonably probable that the trial court would impose a more favorable sentence if we were to remand for resentencing. The trial court put considerable thought and effort into sentencing Johnson, and it reimposed the 15-year sentence on remand although it had discretion to sentence Johnson to a lesser term or to strike an enhancement. The court emphasized at the resentencing hearing: "I did choose what I thought to be the most lenient sentence that the crime and his criminal history allowed, that is, the maximum determinate sentence, and . . . believe that is the correct sentence." Any state law error was harmless.
Johnson argues that the trial court could decide to impose a more favorable sentence in light of the mitigating effect of his mental disorder. As we discuss post, it is not reasonably probable that the court would impose a different sentence in light of this mitigating factor.
Assembly Bill 124
Among other changes attributed to Assembly Bill 124, the bill amended section 1170, subdivision (b)(6)(A) to make the lower term the presumptive term where the defendant "has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence," and the experience "was a contributing factor in the commission of the offense." The presumption in favor of imposition of the lower term may be overcome if "the court finds that the aggravating circumstances outweigh the mitigating circumstances [such] that imposition of the lower term would be contrary to the interests of justice." (§ 1170, subd. (b)(6).) "Paragraph (6) does not preclude the court from imposing the lower term even if there is no evidence of those circumstances listed in paragraph (6) present." (§ 1170, subd. (b)(7).) Courts of appeal have held that "psychological trauma stemming from mental illness properly invokes the lower term presumption in section 1170, subdivision (b)(6)." (Banner, supra, 77 Cal.App.5th at p. 240; People v. Gerson (2022) 80 Cal.App.5th 1067, 1096.)
"We apply the standard set forth in [People v.] Gutierrez [(2014)] 58 Cal.4th 1354, to determine whether a remand is required for resentencing under the new legislation.' "Defendants are entitled to sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that 'informed discretion' than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record." [Citation.] In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record "clearly indicate[s]" that the trial court would have reached the same conclusion "even if it had been aware that it had such discretion." '" (People v. Salazar (2022) 80 Cal.App.5th 453, 462-463.)
Johnson argues that the reports the trial court considered when determining whether mental health diversion was appropriate indicated that he suffered from major depressive order and recommended that he receive treatment while in custody to address his depression. Johnson also cites several studies regarding the abuses children have historically suffered in California Youth Authority custody and argues that because he was incarcerated there for approximately five years as a minor, he likely suffered such trauma himself. The existence of Johnson's depression, and the likelihood that he suffered childhood trauma, however, are not alone sufficient to meet the requirements of section 1170, subdivision (b)(6). Here, remand is not required because the record clearly indicates that the trial court would not conclude that psychological, physical, or childhood trauma contributed to Johnson's commission of the robbery to any degree.
In 2005, the California Youth Authority was renamed. (In re A.M. (2019) 38 Cal.App.5th 440, 443, fn. 1.) It is currently the Division of Juvenile Justice within the Department of Corrections and Rehabilitation. (Welf. & Inst. Code, § 1710, subd. (a).)
The question of the impact of Johnson's depression on the commission of the crime was squarely in front of the court at the resentencing hearing when the court determined that mental health diversion would not be appropriate. A threshold finding for mental health diversion is that the defendant had a mental disorder and the mental disorder "was a significant factor in the commission of the charged offense." (§ 1001.36, subd. (b)(2).) The court considered the three psychiatric reports regarding Johnson that it had reviewed at the prior sentencing hearing. Johnson did not submit any other materials. The trial court found that mental disorder was not a significant factor in the robbery, and further observed that there was, in fact, no evidence linking Johnson's depression with his commission of the crime. In some circumstances, remand for a determination of whether psychological trauma was a "contributing factor" to the commission of an offense may be appropriate, even when the trial court previously determined that it was not a sufficiently "significant factor" to the commission of the offense to warrant mental health diversion; that is because the standard that a defendant must meet under section 1170, subdivision (b)(6)(A) is less stringent. (Banner, supra, 77 Cal.App.5th at pp. 241-242.) In this case, however, it is clear from the record that the trial court, having found no connection between Johnson's depression and the crime, would reach the conclusion that psychological trauma stemming from mental illness was not a contributing factor to the commission of the robbery. Johnson's assertion that he may have suffered childhood trauma in the California Youth Authority is speculation and does not provide a basis for reversal.
DISPOSITION
We affirm the judgment.
I concur: KIM, J.
BAKER, Acting P. J., Concurring in Part and Dissenting in Part
I agree that a remand to the trial court is not required as a result of the amendments made to Penal Code section 1170, subdivisions (b)(6) and (b)(7). I disagree, however, with the majority's decision not to remand the cause to give the trial court an opportunity to reconsider a decision that it initially struggled with even when governing law was less favorable to a defendant, namely, the decision of whether to impose a middle or high term sentence.
At the time of defendant Lloyd Johnson's (defendant's) original sentencing, a sentencing court was free to choose among the low, middle, or high terms without constraint other than the limits of an abuse of its discretion. (Former Pen. Code, § 1170, subd. (b) ["When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court"].) After recent statutory amendments made by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567), however, a sentence no higher than the middle term provided by statute is the presumptively applicable sentence. (Pen. Code, § 1170, subd. (b)(1) ["When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph [(b)](2)"].) A sentencing court can only impose a longer sentence if it finds the crime involved aggravating circumstances that have been admitted by the defendant or found true beyond a reasonable doubt by a factfinder. (Pen. Code, § 1170, subd. (b)(2).)
Both sides in this case agree the aforementioned change in sentencing law made by Senate Bill 567 applies retroactively to defendant. Both sides also agree that, in light of the retroactive change, the governing rule is the one articulated by our Supreme Court: "'"Defendants are entitled to sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that 'informed discretion' than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record." [Citation.] In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record "clearly indicate[s]" that the trial court would have reached the same conclusion "even if it had been aware that it had such discretion."' (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391[ ].)" (People v. Flores (2020) 9 Cal.5th 371, 431-432 (Flores).)
The record provides no such clear indication here. At the time of defendant's original sentencing, when the facts of the case and the history and characteristics of defendant were freshest in the sentencing judge's mind, the judge admitted on the record that he was "torn between" whether to impose a middle term or high term sentence. This admission that the decision was a close call even then suffices to show it is not clear what the trial court would do under current law that is now more favorable to defendant. And the admission is not undermined by the court's more recent comment-made when considering expansive relief (mental health diversion) that would result in defendant's outright release from custody and when undertaking such consideration unaware of the Legislature's current declaration of sentencing policy in Penal Code section 1170, subdivision (b)(1)- that it thought it imposed the most lenient sentence allowable.
In some cases, it is indeed clear what the trial court would do. Flores, a case the majority does not cite, is one example. (Flores, supra, 9 Cal.5th at 432 [remand to permit consideration of whether to strike a firearm enhancement in the interest of justice would be an "idle act" where the sentencing court found the defendant was one of the "'worst of the worst'" that deserved the death sentence imposed].) But our Supreme Court cautioned in Flores that it expressed no opinion on whether cases should be remanded for an exercise of informed sentencing discretion "where the record shows the trial court approved of a high sentence short of the death penalty." (Id. at 432, fn. 16.) To be sure, I believe there are cases where a remand will not be required even when a death sentence is not involved. But this is just not one of them. Put succinctly, I would not speculate as to what the trial court in this case would do if given the opportunity to reconsider-in view of current statutory sentencing policy-the issue on which it was originally "torn." I would remand to find out.
BAKER, Acting P. J.