Opinion
A169645
08-13-2024
THE PEOPLE, Plaintiff and Respondent, v. AARON KRISTOPHER TINGLE, Defendant and Appellant.
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 16-CR-018118
MILLER, J.
Defendant Aaron Kristopher Tingle appeals from a trial court order resentencing him pursuant to Penal Code section 1172.75. Tingle's appellate counsel filed a no-issue brief and declared that she "determined a Wende brief is appropriate." Tingle filed a timely supplemental brief. We have reviewed the Wende brief, the record, and Tingle's supplemental brief. Finding no errors or other issues requiring further briefing, we affirm.
People v. Wende (1979) 25 Cal.3d 436.
BACKGROUND
Prior Proceedings-Criminal Trial and Appeal
A jury found Tingle guilty of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) In a subsequent court trial, the court found Tingle had suffered three prior felony convictions, including a prior serious felony (§ 667, subd. (a)) and two prior strikes (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), and he served a prior prison term (former § 667.5, subd. (b), as amended by Stats. 2018, ch. 423, § 65).
Undesignated statutory references are to the Penal Code.
On our own motion, we take judicial notice of our opinion, People v. Tingle (June 18, 2019, A153461) (nonpub. opn.), 2019 WL 2511403, and the appellate record in that case. (Evid. Code, §§ 459, subd. (a); 452, subds. (a), (d).) Our description of the prior proceedings is based in part on the opinion and appellate record.
In January 2018, the trial court sentenced Tingle to 14 years in prison, composed of eight years for the assault conviction (the upper term of four years doubled), five years for the prior serious felony conviction (§ 667, subd. (a)), and one year for the prior prison term (former § 667.5, subd. (b)).
Tingle appealed. On June 18, 2019, this court affirmed the judgment. Current Proceedings-Resentencing Under Section 1172.75
"Senate Bill No. 483 [(2021-2022 Reg. Sess.) (Senate Bill 483)] added section 1171.1 to the Penal Code, which was subsequently renumbered without substantive change as section 1172.75. (Stats. 2022, ch. 58, § 12, eff. June 30, 2022.) Section 1172.75, subdivision (a) provides that '[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense . . . is legally invalid.' (§ 1172.75, subd. (a).) Once the California Department of Corrections and Rehabilitation identifies those persons 'currently serving a term for a judgment that includes an enhancement described in subdivision (a)' to the sentencing court, 'the court shall recall the sentence and resentence the defendant.' (§ 1172.75, subds. (b) &(c).)" (People v. Monroe (2022) 85 Cal.App.5th 393, 399.)
There is no dispute that the California Department of Corrections and Rehabilitation identified Tingle as a person serving a term under former section 667.5, subdivision (b), and provided his name to the court in accordance with section 1172.75, subdivision (b).
Petition for Resentencing and Supporting Documents
In July 2023, through court-appointed counsel, Tingle filed a "Petition to Dismiss and Strike Prior Enhancements Under Senate Bill 483 and Penal Code Section 1171." Tingle asserted he was entitled to resentencing because he received a one-year enhancement for a prior prison term that was now invalid under Senate Bill 483. He also asked the trial court to exercise its discretion under section 1385 to dismiss the five-year enhancement (for his prior serious felony conviction) based on "mitigating factors and rehabilitation."
The District Attorney acknowledged the trial court had jurisdiction to resentence Tingle, citing People v. Cota (2023) 97 Cal.App.5th 318, 332-333, and provided the trial court the most recent decision of the Board of Parole Hearings, which recommended denying Tingle's request for parole. In a supplemental brief, Tingle asked the court to consider the mitigating factors described in the Romero motion he had filed for his original sentencing (attached to his brief) and emphasized that he was only 18 years old at the time of the offense. Tingle also recounted his conduct in prison: while he "had several disciplines in prison," there were "no acts of violence, threats or other truly serious behaviors," and "he has participated in regular faith groups (focused on meditation and prayer), Self Awareness and Improvement Groups, Visual &Performing Arts, Substance Abuse Recovery Support Groups, has honed his job skills, and even moved into a job position where he assists disabled inmates."
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Resentencing Hearing
The trial court held a resentencing hearing under section 1172.75 on December 13, 2023.
Defense counsel stated that Tingle had a "proposed release date" of October 6, 2024, which would be October 6, 2023, "with a year off for the prison prior." The court noted Tingle was being held without bail in another case. Defense counsel submitted an additional document showing a program Tingle was participating in while at Santa Rita Jail. Defense counsel again acknowledged Tingle's "poor behaviors" in prison but argued "other information . . . shows the progress over time and the change."
The trial court stated it had reviewed all the briefing and records provided by the parties and had read our prior appellate opinion, the reporter's transcript of the original sentencing hearing, and the earlier sentencing memos and probation report. Addressing Tingle's request to dismiss the five-year enhancement, the court stated it gave great weight to the mitigating factor that the prior conviction was more than five years old (§ 1385, subd. (c)(2)(H)) and considered his young age at the time of the offense and his post-conviction rehabilitative work. Against these mitigating factors, the court considered Tingle's disciplinary record in prison and the serious violence involved in the underlying assault conviction, as well as the fact that Tingle was now alleged to have committed a murder in 2015 and had been held to answer on the murder charge following a preliminary hearing. The court observed that "suffering multiple rules violations is indicative of lack of compliance with authority, and for someone with that kind of violent record in the past is of some concern to me." It concluded that Tingle was a "danger to public safety; and therefore, I am not going to strike the five-year prior."
The trial court did strike the one-year enhancement for the prison prior as required under section 1172.75.
DISCUSSION
Appellate counsel filed a brief asking this court to conduct an independent review of the record in accordance with People v. Wende, supra, 25 Cal.3d 436. We have reviewed the record and find no errors or other issues requiring further briefing.
We have also considered Tingle's supplemental brief. He raises arguments related to the criminal trial that resulted in his assault conviction. He writes, "Counsel for the Defendant was incompe[]tent for the whole of Defendant[']s case and the issue was raised briefly in the initial appeal." However, we affirmed the judgment in Tingle's direct appeal (People v. Tingle, supra, 2019 WL 2511403 at *15), and the judgment became final before he initiated the current proceedings. (See People v. Padilla (2022) 13 Cal.5th 152, 162 ["a judgment becomes final' "where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari ha[s] elapsed"' "].) Tingle may not raise errors regarding his criminal trial or challenge his conviction in this appeal. (Cf. People v. Deere (1991) 53 Cal.3d 705, 713 [appellate claims regarding the guilt phase of trial could not be raised in a subsequent appeal following remand as to the penalty phase only where the judgment had been affirmed in all other respects in the original appeal].)
Tingle's supplemental brief does not raise any issues regarding the trial court's ruling on resentencing and therefore does not raise any arguable issues.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Stewart, P.J., Desautels, J.