Opinion
A168699
09-13-2024
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND PHILLIP WILSON, Defendant and Appellant.
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR-756724-1.
We resolve this case by memorandum opinion. (Cal. Stds. Jud. Admin., § 8.1.) We provide a limited factual summary because our opinion is unpublished and the parties know, or should know, "the facts of the case and its procedural history." (People v. Garcia (2002) 97 Cal.App.4th 847, 851.) All statutory references are to the Penal Code.
DESAUTELS, J.
Pursuant to a negotiated plea agreement, Raymond Phillip Wilson was placed on two years' probation in exchange for pleading no contest to felony violations of resisting an executive officer (§ 69, subd. (a)) and assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)). When Wilson later determined that he would not do well on probation, he sought to be resentenced. The trial court obliged, sentencing Wilson to the middle term for the assault charge, and consecutively, one-third the middle term for resisting an executive officer, for a total term of three years eight months in state prison. Wilson now appeals this sentence, arguing that an initial showing had been made for the application of section 1170, subdivision (b)(6)(A) (section 1170(b)(6)(A)), which makes the lower term the presumptive sentence in cases where childhood trauma was a contributing factor in the commission of the offense. On that basis, Wilson ascribes error to the trial court's failure to consider on the record the effect of that statute. We agree and therefore reverse, remanding the matter for a new sentencing hearing.
"[I]n reviewing a trial court's failure to expressly apply" the section 1170(b)(6)(A), sentencing presumption, "the record must 'affirmatively' show compliance with a statutory sentencing mandate whenever the mandate has been 'trigger[ed]' by an 'initial showing' of the applicability of the statute." (People v. Fredrickson (2023) 90 Cal.App.5th 984, 991 (Fredrickson).) Generally, "an initial showing has been made when the record and/or arguments are sufficient to put a trial court on notice that a defendant's" childhood trauma "may have been a contributing factor in commission of the underlying offense." (Id. at p. 994 [declining to decide "the precise nature" of the showing required].) Here, the record before the trial court included a probation report that noted Wilson's childhood trauma and observed, "it may have posed an issue in the commission of the crime." Thus, the requisite initial showing had been made.
Because the sentencing mandate of section 1170(b)(6)(A) had been triggered, we next turn to the question of whether the record affirmatively shows compliance with that mandate. (Fredrickson, supra, 90 Cal.App.5th at p. 991.) "[U]nless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if . . . [¶] (A) The person has experienced psychological, physical, or childhood trauma." (§ 1170(b)(6)(A).)
Here, in determining the appropriate non-probationary sentence, the trial court represented his review of the probation report and two specific factors in mitigation: "One, his record is relatively slim, having no significant prior record, and two, he has those issues of -- significant issues in institutional settings as a 16-year-old, and there were other references to problems in the family earlier on." The court opined, "I think this is a consecutive case" because the police altercation underlying the charge for resistance was "separate and apart from the altercation with his father"; but the court then invited "argument by both sides, of the low term . . . rather than the mid term, under all the circumstances as I understand them."
Although these references to "significant issues," "problems in the family," and "all the circumstances" demonstrate an awareness of the childhood trauma potentially triggering the section 1170(b)(6)(A) presumption, the invitation to present argument "of the low term . . . rather than the mid term" appears to overlook the low term presumption and instead is consistent with the kind of discretionary sentencing inquiry conducted prior to the enactment of section 1170(b)(6)(A). Neither the probation report nor the arguments of counsel clarify this ambiguous comment, as none made any reference to section 1170(b)(6)(A) or the low term presumption. Thus, we cannot conclude that the record affirmatively demonstrates compliance with section 1170(b)(6)(A).
In an effort to avoid this conclusion, the Attorney General argues the claim is forfeited. We disagree. In Fredrickson, our colleagues in Division Five noted that their analysis of a claim of ineffective assistance of counsel might "in effect impose an obligation on a defendant to present information and/or arguments that suggest applicability of the lower term presumption," but they expressly disclaimed the conclusion that an "appellant forfeit[s] the benefit of the presumption." (Fredrickson, supra, 90 Cal.App.5th at p. 994, fn. 8.) Citing People v. Panozo (2021) 59 Cal.App.5th 825, 840, Fredrickson explained that no forfeiture occurs "where the defendant 'does not challenge the manner in which the trial court exercised its sentencing discretion but rather its apparent misapprehension of statutory sentencing obligations.'" (Fredrickson, at p. 994, fn. 8.) And although the Attorney General contends Panozo is distinguishable because there was no apparent misapprehension in the present case, we have already given our reasons for reaching the contrary conclusion. In short, the claim is not forfeited.
As Wilson correctly notes, his case is also distinguishable from the one we addressed last year in People v. Achane (2023) 92 Cal.App.5th 1037. In Achane, there was no argument that the appellant (or anyone else) had made the triggering showing of trauma and its contribution to the crimes at issue, as required to raise the question of whether the record affirmatively demonstrates that the section 1170(b)(6)(A) mandate was heeded. By contrast, the probation report here suggests both the childhood trauma and its potential contribution to the offense, but neither probation, counsel, nor the court affirmatively demonstrate recognition of its triggering effect.
Because we have concluded that Wilson is entitled to the relief he seeks on the merit of his "apparent misapprehension" claim, we do not reach his own claim of ineffective assistance of counsel.
Finally, the Attorney General argues that any error under section 1170(b)(6)(A) was harmless because "the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware'" of that statute's potential applicability. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) We disagree. "[T]he middle term [is] the presumptive sentence for a term of imprisonment unless certain circumstances"-such as those described in section 1170(b)(6)(A)-"exist." (People v. Flores (2022) 73 Cal.App.5th 1032, 1038.) And it is unclear from the record here whether the court concluded that the circumstances in mitigation failed to outweigh the circumstances in aggravation under section 1170, subdivision (b)(2) and therefore failed to overcome a presumption in favor of a middle-term sentence, or instead concluded that the circumstances in aggravation outweighed the circumstances in mitigation and therefore overcame a section 1170(b)(6)(A) presumption in favor of a lower-term sentence. If the trial court drew the former conclusion, then it may draw another conclusion in its informed discretion upon remand.
We express no opinion as to whether the lower or middle term should ultimately be imposed.
DISPOSITION
We reverse the judgment, remanding the matter for a new sentencing hearing consistent with this opinion.
We concur: RICHMAN, ACTING P.J., MILLER, J.