Opinion
C088912
03-13-2020
THE PEOPLE, Plaintiff and Respondent, v. BRYAN KEITH FLOYD, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18FE010274)
Defendant Bryan Keith Floyd was involved in several confrontations with his neighbors and a lengthy standoff with police. A jury found him guilty of attempted criminal threats, negligent discharge of a firearm, and other charges, and the trial court sentenced him to 15 years eight months in prison, with various fines and fees. On appeal, defendant contends: (1) due to ineffective assistance of counsel at sentencing, we must remand to allow the trial court to exercise its discretion under Senate Bill No. 1393 to strike defendant's five-year prior serious felony enhancement; and (2) People v. Dueñas (2019) 30 Cal.App.5th 1157 requires remand for an ability to pay hearing.
We agree with defendant's first argument, and our remand for resentencing obviates the need to consider defendant's Dueñas challenge because defendant may raise his objections concerning any perceived inability to pay fines and fees at the new hearing. (See People v. Buycks (2018) 5 Cal.5th 857, 893 [explaining the "full resentencing rule"].) We otherwise affirm the judgment.
BACKGROUND
The night of May 23, 2018, defendant complained about loud music coming from the backyard of a neighbor, James W. As defendant and James W. screamed at each other, the police arrived and calmed the situation. After the police left, defendant, believing that a second neighbor (F.M.) had called the police, angrily confronted F.M. at her front door, fired two shots into the air with a revolver, and smashed F.M.'s son's car window.
"ShotSpotter" technology identified the location of the shots into the air, and police returned to the scene. Eventually, a SWAT team responded to defendant's home, and after a lengthy standoff defendant surrendered to police the next morning. Officers found a loaded shotgun and a handgun in defendant's home, and a loaded handgun in a vehicle parked in front of the home.
On January 9, 2019, a jury found defendant guilty of attempted criminal threats against F.M. (Pen. Code, §§ 664/422; count two), carrying a loaded firearm (§ 25850, subd. (a); count three), negligent discharge of a firearm (§ 246.3, subd. (a); count four), misdemeanor vandalism (§ 594, subd. (a); count five), three counts of possession of a firearm by a felon (§ 29800, subd. (a)(1); counts six, seven, and eight), and possession of ammunition by a prohibited person (§ 30305, subd. (a)(1)); count nine).
Further undesignated statutory references are to the Penal Code.
Defendant admitted that in 1990 he was convicted of attempted robbery (§§ 664/211), which conviction constituted a prior "strike." On February 5, 2019, defendant filed a motion to dismiss the strike, pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and an extensive statement in mitigation with various attachments.
The probation officer's pre-sentence report, which the trial court duly considered, noted that defendant was released on parole 12 times and returned to custody 11 times for violations of parole violations, some of which were the result of new convictions. At the February 8, 2019, sentencing hearing, the court denied the Romero motion, saying: "The regrettable thing for you, Mr. Floyd, is that you are exactly within the centerpiece ambit of three strikes law. This is what the law is about. . . . [¶] I note that you were released on parole 12 times, and you returned to custody 11 times for violations of parole, some of which were based on new convictions. Your record is just replete with all of the reasons why it doesn't work for you to be outside of a prison.
"This particular crime series was all fairly concentrated. It was very serious, but it was all kind of idiosyncratic or off the top of the moment, wasn't a lot of thought obviously given to it. Fortunately, nobody died, but your conduct was just truly dangerous, and the motion to strike the strike prior is denied. . . . There would be no basis to strike the strike unless one were to simply reject the concept of the three strikes law, which I would not reject nor would I have authority to."
After further discussion with the parties and comments not relevant to our discussion, the trial court imposed an aggregate sentence of 15 years eight months. Before imposition of sentence, the court addressed defendant, telling him that, "The sentence that you're going to receive in this matter will total 13 years and 4 months . . . ." However, when the individual sentences for each count were totaled, the tally was nearly 16 years.
For count six, the principal term, defendant received six years (the upper term of three years, doubled for the strike), and on the subordinate terms the following consecutive terms (all one-third the middle term and doubled for the strike): 16 months for count seven; 16 months for count eight; 16 months for count nine; eight months for count two. Without comment, the trial court then added "five years for the nickel prior," meaning the five-year enhancement pursuant to section 667, subdivision (a). The court added a concurrent term of one year in county jail for count five, and imposed and stayed (pursuant to § 654) upper terms of three years for counts three and four. Pursuant to section 1202.4, subdivision (b), the court imposed a $2,000 restitution fine, and then stated that it was "imposing only mandatory minimum fines and fees, no non-mandatory and no non-minimum."
Defendant timely appealed.
DISCUSSION
I
Ineffective Assistance of Counsel
On January 1, 2019, Senate Bill No. 1393 (2017-2018 Reg. Sess.) went into effect. The law amended sections 667, subdivision (a) and 1385, subdivision (b) (Stats. 2018, ch. 1013, §§ 1- 2), to allow a trial court to exercise its discretion to strike or dismiss a prior serious felony allegation for sentencing purposes.
Defendant argues counsel provided ineffective assistance at sentencing by failing to ask the trial court to strike the five-year enhancement in light of Senate Bill No. 1393. Defendant argues there was no tactical reason for trial counsel's omission, and it is reasonably probable the court would have been willing to strike the five-year enhancement. This is so, defendant argues, because while the trial court clearly felt bound by its conclusion that defendant fell squarely within the spirit of the three strikes law, Senate Bill No. 1393 reflects a "cultural shift" towards "less harsh sentences," and grants a trial court "far more discretion than it is afforded under the three strikes law." Further, defendant argues, the court seemed "perfectly content" to impose its original calculated sentence of 13 years four months rather than the much higher sentence ultimately imposed.
The Attorney General does not defend counsel's performance, but argues lack of prejudice instead. He adds that because we must presume the trial court understood its discretion at sentencing, remand is unwarranted.
In this particular case, defendant has the better argument.
"The federal constitutional right to counsel 'applies at all critical stages of a criminal proceeding in which the substantial rights of a defendant are at stake.' [Citations.] A sentencing hearing is one such stage, and a defendant has a constitutional right to counsel at sentencing." (People v. Bauer (2012) 212 Cal.App. 4th 150, 155.)
"To establish ineffective assistance of counsel, a defendant must show (1) counsel's performance was below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant. [Citations.]" (People v. Rogers (2016) 245 Cal.App.4th 1353, 1366 (Rogers).)
"To establish prejudice, '[i]t is not enough "to show that the errors had some conceivable effect on the outcome of the proceeding." ' [Citation.] To show prejudice, defendant must show a reasonable probability that he would have received a more favorable result had counsel's performance not been deficient. [Citations.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.] 'The likelihood of a different result must be substantial, not just conceivable.' [Citation.]" (Rogers, supra, 245 Cal.App.4th at p. 1367.)
"A claim on appeal of ineffective assistance of counsel must be rejected ' "[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." ' [Citations.]" (People v. Hinds (2003) 108 Cal.App.4th 897, 901.)
Here, Senate Bill No. 1393 became effective on January 1, 2019, more than one week before defendant admitted his prior serious felony, and more than a month before the sentencing hearing. On February 5, 2019, counsel filed two pleadings seeking mitigation and exercise of discretion toward leniency. But counsel did not invoke Senate Bill No. 1393. There can be no satisfactory explanation why, particularly given the multiple other efforts to obtain a lower sentence for defendant, counsel did not ask the trial court to strike defendant's five-year enhancement. (See People v. Speight (2014) 227 Cal.App.4th 1229, 1248-1249 [finding deficient performance where counsel did not raise an argument during a sentencing hearing that occurred five weeks after a California Supreme Court decision announced the relevant principle; and quoting People v. Scott (1994) 9 Cal.4th 331, 351, for the proposition that a defense attorney who fails to adequately understand the available sentencing alternatives and pursue the most advantageous disposition for his client may be found incompetent]; Rogers, supra, 245 Cal.App.4th at p. 1361, fn. 5 [in light of statutory and case law, "there can be no satisfactory explanation for defense counsel's failure to object"].) Counsel's failure to seek the maximum leniency available to his client was constitutionally deficient.
As for the prejudice inquiry, the trial court's apparent amenability to a sentence nearly 30 months lower than the sentence ultimately imposed, and its characterization of defendant's conduct as "idiosyncratic or off the top of the moment," both support the notion that the court might have been willing to consider striking the enhancement if counsel had raised the issue. (Cf. People v. Dancer (1996) 45 Cal.App.4th 1677, 1695 ["that the offense was planned and sophisticated, rather than a single spontaneous instance of aberrant behavior" made it "worse than a sudden spontaneous act" for purposes of sentencing], disapproved of on another point of law in People v. Hammon (1997) 15 Cal.4th 1117, 1123; United States v. Carthorne (4th Cir. 2017) 878 F.3d 458, 469-470 [finding prejudice where there was a reasonable probability that the sentencing court "would not have applied the enhancement" if counsel had made a proper objection].) Further, the court's apparent comfort with applying the three strikes sentencing scheme to defendant does not suggest it would have been unwilling to strike the five-year enhancement in light of Senate Bill No. 1393, because the enhancement arises out of an entirely distinct sentencing scheme and policy backdrop. (Cf. People v. Williams (2004) 34 Cal.4th 397, 401-405 [discussing the different statutory and policy backdrops of section 667, subdivision (a) and the three strikes law].)
The Attorney General cites People v. Gutierrez (1996) 48 Cal.App.4th 1894 as support for the proposition defendant was not prejudiced by counsel's failures, arguing the trial court would not have dismissed the enhancement if counsel had asked. But Gutierrez is distinguishable. Here, the trial court made no statements reflecting a desire to impose the maximum possible sentence, and indeed at times appeared to express the contrary desire, despite its selection of the upper term. Further, there was no ineffective assistance of counsel claim in Gutierrez. And, as we explain below, the contours of a claim of ineffective assistance of counsel at sentencing do not overlap perfectly with a pure sentencing claim on appeal.
In sum, while we agree that there were some signals at the sentencing hearing that the trial court may not have been inclined to dismiss the enhancement, there were other signals that undermine our confidence in a conclusion that the outcome is written in stone. Thus, defendant has demonstrated both constitutionally deficient performance and prejudice, and therefore has established ineffective assistance of counsel at sentencing.
Looking beyond the question of counsel's ineffectiveness, the Attorney General argues that remand is unwarranted because of the principle that, absent evidence to the contrary, we must presume the trial court knew and applied the governing law at sentencing. Although we do not disagree with that principle, that argument does not correctly frame the question we must answer. Even where there is no trial court error, counsel's deficient performance may prejudice an outcome. (Cf. United States v. Carthorne, supra, 878 F.3d at pp. 465-466 [the ineffective assistance inquiry does not involve the correction of an error by the trial court, but focuses more broadly on the duty of counsel to raise critical issues for that court's consideration; and even when a trial court has not committed error, counsel can have rendered ineffective assistance when counsel's errors were the result of a misunderstanding of the law].) In other words, even when we presume the trial court was aware of its discretion under Senate Bill No. 1393, the court had no duty to raise the issue sua sponte for defendant's benefit. The duty was counsel's, and prejudice emanating from the omission is not necessarily obviated by the court's silence on the matter. (Cf. People v. De Soto (1997) 54 Cal.App.4th 1, 9 [defense counsel has the "obligation to formulate specific" arguments at sentencing, because in "making sentencing choices, the trial judge is confronted with a maze of statutes and rules"].)
II
Dueñas Claim
As we have explained, our remand obviates the need to decide defendant's Dueñas claim. However, we note that Dueñas was filed on January 8, 2019, a month before the sentencing hearing, and defendant did not claim an inability to pay or seek a hearing thereon. This would normally forfeit his claim of error. However, because we have already found counsel was ineffective in failing to raise the applicability of Senate Bill No. 1393 to defendant's case, and we are ordering the case remanded for resentencing to include consideration of the exercise of discretion accorded by that change in the law, we will allow defendant to raise his ability to pay before the trial court at resentencing should he choose to do so.
We note as relevant to this discussion that during sentencing the trial court announced it would "reduce the restitution fine that was recommended from $4,800 to $2,000" and imposed that fine accordingly, but almost immediately thereafter announced it that it was "impos[ing] only mandatory minimum fines and fees, no non-mandatory and no non-minimum." The restitution fine of $2,000 is not the minimum fine. This ambiguity should be clarified on remand. --------
DISPOSITION
The case is remanded for resentencing so the trial court may consider exercising its discretion under Senate Bill No. 1393 and clarify its intention in imposition of minimal fines and fees, and defendant may make any remaining objections thereto. In all other respects, the judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Raye, P. J. /s/_________
Blease, J.