Opinion
F080908
07-13-2023
THE PEOPLE, Plaintiff and Respondent, v. DION EDWARD LOFTIS, Defendant and Appellant.
Lindsay Sweet and Michelle Livecchi-Raufi, under appointments by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F18908520. Jonathan M. Skiles, Judge.
Lindsay Sweet and Michelle Livecchi-Raufi, under appointments by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
This matter is before us for reconsideration following the Supreme Court of California's decision in People v. Henderson (2022) 14 Cal.5th 34 (Henderson).
Defendant Dion Edward Loftis pleaded no contest to multiple felony counts, including two robbery counts, arising out of a single incident. He received a sentence of 18 years in prison, comprised of a 16-year term on one of the robbery counts and a consecutive two-year term on the other. His base terms on both these counts were doubled because he had suffered a prior strike conviction within the meaning of the "Three Strikes" sentencing scheme. (Pen. Code, §§ 667, subd. (e)(1); 1170.12, subd. (c)(1).) The terms on the other counts were stayed.
Undesignated statutory references are to the Penal Code.
Loftis argued on appeal (1) the trial court abused its discretion when it refused to dismiss his prior strike conviction under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), and (2) defense counsel rendered ineffective assistance by not objecting to the court's failure to state reasons for imposing consecutive sentences for the two robbery counts.
We concluded in our first opinion that the trial court did not abuse its discretion in refusing to dismiss Loftis's prior strike conviction for sentencing purposes, and concluded counsel was not ineffective because the trial court lacked discretion to impose concurrent sentences on the two robbery convictions. As to the latter issue, we concluded that Proposition 36, the Three Strikes Sentencing Reform Act of 2012 (Proposition 36), stripped sentencing courts of their discretion to impose concurrent sentences for felonies falling under the "Three Strikes" sentencing scheme that were committed on the same occasion or arose from the same set of operative facts. We therefore affirmed the judgment.
The Supreme Court of California granted review of our first opinion; issued Henderson, supra, 14 Cal.5th 34, which held that Proposition 36 did not strip sentencing courts of discretion to impose concurrent sentences for felonies committed on the same occasion or arising from the same set of operative facts; directed us to vacate our July 16, 2021, opinion; and transferred this matter back to us for reconsideration in light of Henderson.
We subsequently entered an order vacating our July 16, 2021, opinion and the parties filed supplemental briefing. Henderson's holding did not affect the Romero issue, and Loftis's supplemental brief therefore does not address that issue. But he maintains he is entitled to a new sentencing hearing so the trial court may consider whether to run the terms imposed on the robbery counts consecutively. We now reject Loftis's claim that his counsel provided ineffective assistance by not objecting to the trial court's failure to state reasons for imposing consecutive sentences because he has not shown prejudice.
We affirm.
STATEMENT OF THE CASE
Lofits and a co-defendant were charged in a consolidated complaint with multiple counts. As to Loftis, the complaint charged two counts of second-degree robbery (§ 211; counts 1 &2), one count of grand theft of personal property (§ 487, subd. (a); count 3), possession of a firearm by a felon (§ 29800, subd. (a)(1); count 4), and unlawful possession of ammunition (§ 30305, subd. (a)(1); count 5). As to the robbery counts, the complaint alleged that Loftis personally used a firearm within the meaning of section 12022.53, subdivision (b), and that he intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c). The complaint further alleged Loftis had suffered a prior felony conviction within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), § 1170.12, subds. (a)-(d)), a prior serious felony conviction (§ 667, subd. (a)), and had served a prior prison term (§ 667.5, subd. (b)).
Loftis pled no contest to all counts and admitted all allegations. The court indicated that it would strike the section 12022.53, subdivision (c), firearm enhancement and that Loftis would receive a sentence of no more than 19 years, four months.
At sentencing on January 29, 2020, the court denied Loftis's motion to dismiss his prior strike offense. The court imposed a total term of 18 years in prison. On count 1, the court imposed the midterm of three years, doubled to six years because of the prior strike conviction, plus a consecutive 10 years for the section 12022.53, subdivision (b), firearm enhancement, for a total of 16 years on that count. The court struck the remaining enhancements as to count 1.
On count 2, the court imposed a consecutive term of one year (one-third the midterm), doubled to two years because of the prior strike conviction. The court struck the remaining enhancements as to count 2.
The sentences on counts 3, 4, and 5 were stayed under section 654.
FACTS
The parties stipulated to the police report as a factual basis for Loftis's plea (§ 1192.5), and we therefore draw our statement of facts from that report.
On December 6, 2018, two men, S.A. and D.M., were riding an ATV, distributing payroll checks to farm workers working in the fields. They also were carrying several thousand dollars cash.
When S.A. and D.M. exited a row of vines, they saw two men wearing masks, later identified as Loftis and Jorge Pacheco, standing there. At that time, S.A. and D.M. had approximately $5,000 in cash and an unknown number of payroll checks still inside a satchel.
S.A. thought the men were wearing masks because of the cold weather but noticed as they got closer Loftis was holding a handgun. Loftis approached S.A., placed the gun to his temple, and yelled in English, "Give me your money or you're going to die!" When S.A. did not immediately comply, Pacheco repeated what Loftis said in Spanish.
D.M. handed his wallet to Loftis. Loftis then fired the gun into the air and yelled at S.A. to give him his money. S.A. handed Loftis the satchel with the cash and checks inside and gave Loftis $400 cash from his pocket. Loftis threw S.A. to the ground.
Loftis began to run away but tripped and fell and dropped his gun. S.A. ran and picked the gun up as Loftis and Pacheco were running toward a Dodge Durango parked nearby. S.A. believed the robbers could have had another gun and might have attempted to kill him and D.M., so S.A. fired three or four rounds at Loftis, aiming at his lower body. Loftis was hit in the leg and fell to the ground. Pacheco got into the waiting Durango and drove away. S.A. went over to Loftis, removed his mask, and told his coworkers to call police.
Loftis told the responding officers, "They put me up to it. It was Marco Perez and Jorge Pacheco." He said Perez and Pacheco drove away in the Durango and left him there. He stated that the robbery was Pacheco's idea and that he felt pressured into participating. He also advised that Perez worked with the people at that vineyard.
DISCUSSION
At the sentencing hearing, the trial court ordered the term imposed on count 2 (victim D.M.) to run consecutively to the term imposed on count 1 (victim S.A.) without stating reasons for doing so. Loftis contends his counsel provided ineffective assistance by not objecting to the court's failure to state reasons for imposing consecutive sentences.
In our first opinion, we concluded counsel was not ineffective because the trial court lacked discretion to impose the terms concurrently. We held that Proposition 36's amendment to section 1170.12, subdivision (b)(7), provides that when a defendant has one or more prior serious felony convictions and is currently convicted of more than one serious or violent felony, the court must impose consecutive sentences on those convictions regardless of whether the crimes were committed on the same occasion or arose from the same set of operative facts. However, the Supreme Court of California disagreed in Henderson, supra, 14 Cal.5th 34, holding that Proposition 36's amendment to section 1170.12, subdivision (b)(7), does not require consecutive sentences; courts retain discretion to impose concurrent sentences in that situation. (Id. at pp. 49-52, 56.)
Section 1170.12 defines robbery as both a serious and violent felony. (§§ 1170.12, subds. (a)(7) & (b); 667.5, subd. (c)(9); 1192.7, subd. (c)(19).)
The matter is now back before us to reconsider this sentencing issue in light of Henderson, supra, 14 Cal.5th 34. We begin by recognizing that since the trial court had discretion to impose concurrent sentences, the court was required to state reasons for imposing consecutive sentences. (Cal. Rules of Court, rule 4.406(b)(4) [sentencing court must state reasons for imposing consecutive sentences].) But despite the trial court's failure to state reasons for imposing consecutive sentences here, we reject Loftis's claim of ineffective assistance of counsel because he has not shown prejudice.
All references to rules are to the California Rules of Court.
Ineffective assistance of counsel standard
To establish a claim of ineffective assistance of counsel, an appellant must show "(1) counsel's performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficiencies resulted in prejudice." (People v. Centeno (2014) 60 Cal.4th 659, 674.) The test for prejudice is whether there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 694.) "A reasonable probability does not mean 'more likely than not,' but merely 'a probability sufficient to undermine confidence in the outcome." (People v. Zaheer (2020) 54 Cal.App.5th 326, 340.) For the reasons that follow, we conclude Loftis's argument fails to establish prejudice. (See Strickland, supra, at p. 697 ["If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed."].)
Analysis
Loftis assumes from the trial court's failure to state reasons for imposing consecutive terms that it erroneously believed consecutive terms were mandatory. He asserts that had his counsel requested a statement of reasons, there is a reasonable probability the court would have imposed concurrent sentences because there were "no compelling reasons" for imposing consecutive sentences.
Loftis's assumption that the trial court was unaware of its discretion goes against the rule of appellate procedure that a trial court is presumed to have understood and properly exercised its sentencing discretion absent evidence to the contrary. (People v. Mosley (1997) 53 Cal.App.4th 489, 496.) There is no evidence in the record reflecting the trial court erroneously believed that consecutive terms were mandatory or that the court was otherwise unaware of its discretion to sentence concurrently rather than consecutively. While the trial court failed to state reasons as required by rule 4.406(b)(4), the record shows this was more likely due to an oversight rather than to the court's erroneous belief it had no discretion to impose concurrent sentences.
For example, the probation officer's presentence report and Loftis's trial counsel's sentencing memorandum both addressed the issue of concurrent versus consecutive sentencing. The probation officer's report discussed rule 4.425 factors affecting concurrent versus consecutive sentencing and recommended consecutive sentencing.On the other hand, defense counsel's memorandum urged the court to impose only 12 years total on count 1 and to "run everything else concurrent." It was never suggested to the court that it lacked discretion to impose concurrent terms.
Rule 4.425 is entitled "Factors affecting concurrent or consecutive sentences" and includes a non-exhaustive list of factors affecting the court's decision to impose consecutive rather than concurrent sentences.
We also observe that at the time of Loftis's sentencing, there were three published Court of Appeal decisions holding that Proposition 36's amendment to section 1170.12 did not strip trial courts of the discretion to impose concurrent sentences for serious or violent felonies committed on the same occasion and arising from the same set of operative facts. (People v. Gangl (2019) 42 Cal.App.5th 58, 69-71; People v. Buchanan (2019) 39 Cal.App.5th 385, 391-392;; People. Torres (2018) 23 Cal.App.5th 185, 197.) Since, there were not yet any published decisions holding that Proposition 36 stripped sentencing courts of this discretion, the trial court was bound to follow Gangl, Buchanan, and Torres. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [Court of Appeal decisions must be followed by all superior courts].) The record does not demonstrate the trial court was unaware of these decisions and we therefore must presume the court properly applied their holdings.
Aside from whether the trial court understood its sentencing discretion, we disagree with Loftis that there were "no compelling reasons" for imposing consecutive sentences. The record shows otherwise.
The criteria applicable to the trial court's discretion are set forth in rule 4.425, which states that in imposing consecutive sentences a trial court may consider: (1) whether the "crimes and their objectives were predominantly independent of each other"; (2) whether the "crimes involved separate acts of violence or threats of violence"; and (3) whether the "crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior." (Rule 4.425(a)(1)-(3).) The court may also consider "any circumstances in aggravation or mitigation," subject to some exceptions not applicable here. (Rule 4.425(b).) Further, rule 4.408(a) states: "The listing of factors in these rules for making discretionary sentencing decisions is not exhaustive and does not prohibit a trial judge from using additional criteria reasonably related to the decision being made. Any such additional criteria must be stated on the record by the sentencing judge."
Aggravating circumstances that may not be considered in deciding whether to impose consecutive sentences include "[a] fact used to impose the upper term" and "[a] fact that is an element of the crime[.]" (Rule 4.425(b)(1) & (3).)
For instance, the "naming of separate victims in separate counts is a circumstance on which a trial court may properly rely to impose consecutive sentences." (People v. Caesar (2008) 167 Cal.App.4th 1050, 1060-1061, disapproved of on other grounds in People v. Superior Court (Sparks) 48 Cal.4th 1, 18.) In fact, that circumstance alone justifies consecutive sentences. (People v. Leon (2010) 181 Cal.App.4th 452, 469 [only single aggravating circumstance required to impose consecutive sentences].) Here, S.A. and D.M. were separate victims named in separate counts. The probation officer's report listed as a factor affecting concurrent or consecutive sentences that the crimes involved separate acts of violence or threats of violence (rule 4.425(a)(2)). Applying a commonsense reading, we understand the probation officer listed this factor based on the fact there were multiple victims.
The only other 4.425(a) factor the probation officer listed in his report was (a)(1)-the crimes and their objectives were predominantly independent of each other. Our review of the record shows this factor may not be applicable. The two robberies were committed at the same time and apparently for the same purpose of obtaining money.
The probation officer also listed six circumstances in aggravation enumerated in rule 4.421, two relating to the crime and four relating to Loftis. Since the trial court did not impose the upper term on either count, all of these aggravating circumstances could have been used to support imposing consecutive terms without violating the rule against the dual use of facts. (See 4.425(b)(1).) The probation officer listed no mitigating circumstances.
The two circumstances relating to the crime were that the crimes involved a threat of great bodily harm (rule 4.421(a)(1)) and that the way the crimes were carried out indicated planning, sophistication, or professionalism (4.421(a)(8)). Both these circumstances find support in the record. Loftis pointed the gun at S.A.'s temple and told him, "Give me your money or you're going to die!" Loftis also told police that Perez worked with the people at the vineyard, which tends to prove that Loftis and his co-defendants knew it was payday and targeted the vineyard for that reason, evidencing planning.
The probation report listed the following aggravating circumstances relating to Loftis: Loftis has engaged in violent conduct which indicates a serious danger to society (rule 4.421(b)(1)), Loftis's prior convictions are numerous or of increasing seriousness (4.421(b)(2)), Loftis was on probation or parole when the crime was committed (4.421(b)(4)), and Loftis's prior performance on probation or parole was unsatisfactory (4.421(b)(5)). Each of these circumstances also find support in the record. As to the second, the court denied Loftis's Romero motion because it found the current offenses were "more serious in nature" compared to his prior strike offense. As for the last two, the probation report shows Loftis violated probation in his prior assault case, was sent to prison, paroled in September 2017, and was on parole when he committed the current offenses.
Loftis in his briefing does not point to any factors which would favor concurrent sentencing. He only asserts that the robberies "were committed at the same time and on the same occasion." This is true, but it means little considering that there were separate victims and that he held a gun to one victim's head and threatened to kill him. While the trial court had discretion to impose concurrent sentences, there is no reasonable probability the court would have done so had defense counsel raised the issue of the court's failure to state reasons for imposing consecutive sentences.
Because the burden of showing prejudice has not been satisfied, the ineffective assistance of counsel claim fails. We therefore need not consider whether the claim was forfeited for failing to object.
DISPOSITION
The judgment is affirmed.
[*] Before Levy, Acting P.J., Poochigian, J. and Snauffer, J.