Filed 12/19/19 P. v. Jackson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

CORIN ROY JACKSON,

Defendant and Appellant.

E071426

(Super.Ct.Nos. BAF1400741,

RIF1403938)

OPINION

APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed.

Eric S. Multhaup, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

In two separate cases, defendant Corin Roy Jackson pleaded guilty to seven felonies and one misdemeanor. In one case, he had punched his girlfriend in the face repeatedly, including while she was holding their four-month old baby; defendant also punched the baby, causing a skull fracture. In the other case, while defendant was incarcerated, he and his cellmate jumped a third inmate and gave him a beating that left him unconscious.

Defendant was sentenced to a total of 17 years 4 months in prison. He appealed. We affirmed the conviction, but we reversed with respect to the sentence, holding that the trial court had imposed an unauthorized sentence on the great bodily injury enhancement in each case. We remanded for resentencing.

While the appeal was pending, however, the trial court had resentenced defendant — in absentia — so as to correct the error. The total sentence was still 17 years 4 months.

On remand, the trial court noted that the error had already been corrected. It adopted the corrected sentence. Thus, it sentenced defendant — for the third time — to a total of 17 years 4 months. It also adopted the statement of reasons that it had given at the original sentencing hearing.

Defendant appeals again. He contends that the trial court erred by failing to state reasons for the corrected sentence. We will hold that defense counsel forfeited the asserted error by failing to raise it below. We will further hold that this failure did not constitute ineffective assistance; on this record, there can be no doubt that, if defense counsel had objected, the trial court still would have sentenced defendant to 17 years 4 months, and it would have stated valid reasons for doing so.

I

FACTUAL AND PROCEDURAL BACKGROUND

A. Convictions.

On May 23, 2016, defendant pleaded guilty in two cases.

In case No. RIF1403938 (domestic violence case), he pleaded guilty to three counts of spousal battery (Pen. Code, § 273.5, subd. (f)(1)), three counts of child endangerment (Pen. Code, § 273a, subd. (a)), and one count of resisting an officer (Pen. Code, § 148, subd. (a)(1)). In connection with one of the child endangerment counts, he admitted an enhancement for the personal infliction of great bodily injury on a child under five. (Pen. Code, § 12022.7, subd. (d).) He also admitted four prior prison term enhancements. (Pen. Code, § 667.5, subd. (b).)

In case No. BAF1400741 (assault case), he pleaded guilty to assault with force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(4).) He admitted an enhancement for the personal infliction of great bodily injury. (Pen. Code, § 12022.7, subd. (a).) He also admitted the same four prior prison term enhancements.

Defendant’s total exposure was 26 years 8 months. The plea bargain, however, included a 20 year “lid.” The trial court (per Judge Dugan) gave an indicated sentence — subject to change based on the probation report and any other subsequent information — of 17 years 8 months in prison.

B. First Sentencing.

On July 7, 2016, Judge Dugan sentenced defendant to a total of 17 years 4 months in prison, calculated as follows:

In the domestic violence case:

Count 1 (spousal battery) (the principal term): Five years (the upper term).

Count 2 (child endangerment): One year four months (one-third the midterm), plus five years (the midterm) on the great bodily injury enhancement.

Count 3 (child endangerment): Four years (the midterm), to be served concurrently.

Count 4 (child endangerment): Four years (the midterm), to be served concurrently.

Count 5 (resisting an officer): 180 days, to be served concurrently.

Count 6 (spousal battery): Five years (the upper term), to be served concurrently.

Count 7 (spousal battery): Five years (the upper term), to be served concurrently.

Prior prison term enhancements: One year each, stayed.

In the assault case:

Count 1 (aggravated assault): One year (one-third the midterm), plus three years (the fixed term) on the great bodily injury enhancement.

Prior prison term enhancements: One year each, with two terms to be served consecutively and two terms stayed.

It ran the sentences in the domestic violence case and in the assault case consecutively.

Defendant appealed.

C. Second Sentencing.

On May 10, 2017, while that appeal was pending, the trial court (per Judge Gunn) resentenced defendant. Apparently it had received a letter from the Division of Adult Institutions pointing out that the sentence was erroneous because, on the great bodily injury enhancements, the full midterm had been imposed, rather than one-third the midterm. The only permissible sentence for an enhancement attached to a consecutive subordinate term is one-third the midterm. (Pen. Code, § 1170.1, subd. (a).)

Judge Gunn imposed the same total sentence of 17 years 4 months, but he made the following changes:

In the domestic violence case:

Count 1 (now a subordinate term): One year four months (one-third the midterm), to be served consecutively.

Count 2 (now the principal term): Six years (the upper term), plus six years (the upper term) on the great bodily injury enhancement.

Count 4: One year four months (one-third the midterm), to be served consecutively.

Count 6: One year four months (one-third the midterm), to be served consecutively.

Count 7: One year four months (one-third the midterm), to be served consecutively.

Counts 3 and 5 and the prior prison term enhancements remained the same but added no time to the total.

In the assault case:

Count 1: Three years (one-third the midterm), plus three years (the fixed term) on the great bodily injury enhancement.

Prior prison term enhancements: One year each, all stayed.

It ran the sentences in the domestic violence case and in the assault case concurrently.

Neither defendant nor defense counsel was present; there was no court reporter, and hence no statement of reasons. Moreover, despite the then-pending appeal, nobody told us that defendant had been resentenced.

D. Third Sentencing.

On February 23, 2018, we issued our opinion. We affirmed the conviction, but we held that the sentence was erroneous because, on the great bodily injury enhancements, the full midterm had been imposed, rather than one-third the midterm. We remanded for resentencing. (People v. Jackson (Feb. 23, 2018, E066364, E066677) [nonpub. opn.].)

Of course, unbeknownst to us, the Division of Adult Institutions had already identified this error, and Judge Gunn had already purported to correct it.

On August 24, 2018, Judge Dugan held a resentencing hearing. The trial court and the parties all agreed that Judge Gunn had lacked jurisdiction to resentence defendant, because the prior appeal had been pending. The trial court said, however, that it was “inclined to adopt” the same sentence as Judge Gunn had imposed. It added, “I ended up giving him 17 years and four months, and I still think that’s the correct amount.”

Defense counsel objected: “My reading of the Court of Appeals’ decision . . . was that because there was a remand for complete resentencing, then it’s a de novo proceeding. [¶] And my understanding is that based upon that, th[e] People have not complied with Marsy. It’s our position that Marsy should have been complied with and that had not been done. So we would object on that basis.”

The trial court disagreed: “[T]he appellate court remanded this for one issue, and that was a resentencing on the enhancements that the Court had done incorrectly. On every other issue the Court [af]firmed the judgment. So I don’t believe it’s a brand new resentencing.”

Thus the trial court sentenced defendant to a total of 17 years 4 months in prison, using Judge Gunn’s calculations. Defense counsel did not object on any additional grounds. The trial court said: “I incorporate all my previous comments . . . at sentencing and at his plea on why I picked the term I picked.” Otherwise, it did not state reasons.

II

FAILURE TO STATE REASONS

Defendant contends that the trial court erred by not stating reasons for its sentencing choices. The People respond that defense counsel forfeited this contention by failing to raise it below. Defendant therefore also contends that this failure constituted ineffective assistance.

A. Forfeiture.

“[R]eviewing courts have required parties to raise certain issues at the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits or waives the claim. [Citations.]” (People v. Scott (1994) 9 Cal.4th 331, 351.) “[T]he waiver doctrine . . . appl[ies] to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are . . . cases in which the court purportedly erred because it . . . failed to state any reasons . . . .” (Id. at p. 353.)

Defendant argues that the objection his counsel did raise was sufficient to preserve his present contention.

“‘“The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had.”’ [Citations.]” (People v. McKinnon (2011) 52 Cal. 4th 610, 636.) We give objections a commonsense construction in light of this purpose: Was the objection sufficient to alert a reasonable bench officer to the error now being asserted on appeal?

Here, defense counsel objected to failure to comply with Marsy’s Law. In support of that objection, he asserted that the resentencing was “de novo.” He went on to argue that, if the victim were present, she “may very well have changed her mind and indicate[] to the court that she has more empathy for Mr. Jackson.” Nothing about this exchange would have alerted the trial court that resentencing “de novo” might have any other implications. Certainly it did not alert the trial court that it might need to state reasons.

We also note that, shortly thereafter, the trial court said that it was incorporating by reference all of the reasons that it had given at defendant’s original sentencing hearing. Defense counsel did not object to this. This would have confirmed that he was not objecting to a failure to state reasons (nor to the inadequacy of the stated reasons).

Defendant also argues that any objection would have been futile, because the trial court had already said that it intended to adopt Judge Gunn’s sentence of 17 years 4 months. “‘Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile . . . .’ [Citation.]” (People v. Gomez (2018) 6 Cal.5th 243, 286-287.) Here, we may assume the trial court was bound and determined to impose a total sentence of 17 years 4 months. Even so, defense counsel could have pointed out that, in adopting Judge Gunn’s calculations, it was making new sentencing choices that required a statement of reasons.

We therefore conclude that the asserted error was forfeited.

B. Ineffective Assistance of Counsel.

“To establish ineffective assistance of counsel, [defendant] must show that h[is] counsel’s performance was deficient and that [h]e suffered prejudice from the deficient performance. [Citation.]” (People v. Caro (2019) 7 Cal.5th 463, 488.)

The trial court made it abundantly clear that it intended to impose a total sentence of 17 years 4 months. There was nothing inherently wrong with this. “A judge’s subjective determination of the value of a case and the appropriate aggregate sentence, based on the judge’s experiences with prior cases and the record in the defendant’s case, cannot be ignored. A judge’s subjective belief regarding the length of the sentence to be imposed is not improper as long as it is channeled by the guided discretion outlined in the myriad of statutory sentencing criteria. [Citations.]” (People v. Castaneda (1999) 75 Cal.App.4th 611, 614.)

As defendant points out, the trial court made the following sentencing choices that would normally require a statement of reasons (see Pen. Code, §§ 1170, subd. (b), 1170.1, subd. (d); Cal. Rules of Court, rule 4.406(b)(4), (b)(5); see also Couzens, Sentencing California Crimes (The Rutter Group 2019) § 12:4 [trial court must state reasons for imposing the term selected, including the midterm]):

1. It selected count 2 as the principal term.

2. It imposed the upper term on count 2.

3. It imposed the upper term on the great bodily injury enhancement to count 2.

4. It imposed the midterm on all other counts.

5. It ran counts 1, 4, 6, and 7 consecutively.

The trial court purported to incorporate its statement of reasons for the first sentence. Defendant is correct, however, that these do not suffice to explain the third sentence. To take just one example, at the first sentencing hearing, in the domestic violence case, on the great bodily injury enhancement on count 2, the trial court had imposed the midterm. Thus, there was no explanation for its decision to impose the upper term on this enhancement at the third sentencing hearing.

Once one reads the probation reports, however, the reasons practically state themselves.

Defendant had a criminal history going back to 1994, consisting of four felonies and seven misdemeanors. These included crimes of violence (aggravated assault, domestic violence, battery, and criminal threats). Defendant’s performance on both probation and parole was atrocious.

The probation officer cited five aggravating circumstances and no mitigating circumstances. At the first sentencing hearing, defense counsel did not dispute that these circumstances applied. He argued only that defendant was “very remorseful” (though the prosecutor disagreed) and that some of his crimes were “caused by alcohol.”

These aggravating circumstances are more than adequate to explain the trial court’s decision to impose the upper term on count 2 and on the great bodily injury enhancement thereto, as well as its decision to sentence consecutively. There was no possibility that it would impose the lower term on any count.

And defendant can hardly complain that the trial court selected count 2, rather than count 1, as the principal term; in his prior appeal, he specifically argued that it was required to do so. We did not reach this claim; we left it up to the trial court to decide on remand, and it did exactly what defendant had demanded.

It follows that defense counsel’s failure to object was not deficient. Had he objected and requested a statement of reasons, the trial court could and would have imposed the same sentence, and it could and would have stated appropriate reasons for doing so. It further follows that the failure to object was not prejudicial. Finally, even if we were to reverse and remand, the trial court would undoubtedly impose the same sentence again. (See People v. DeHoyos (2013) 57 Cal.4th 79, 155 [failure to state reasons is harmless when “it is not reasonably probable that resentencing would result in a sentence more favorable to defendant.”]; People v. Davis (1995) 10 Cal.4th 463, 552 [failure to state reasons for sentencing consecutively was harmless because there were three circumstances supporting that choice].)

III

FAILURE TO CONSIDER CHANGED CIRCUMSTANCES

Defendant also complains that the trial court “declined to consider ‘changed circumstances.’” He is referring to this exchange, during the discussion of Marsy’s Law:

“[DEFENSE COUNSEL]: . . . My only thinking was that given the fact that it’s been two years, [the domestic violence victim] may very well have changed her mind and indicated to the Court that she has more empathy toward Mr. Jackson.

“THE COURT: She might, but that wouldn’t change this Court’s mind on misconduct. That’s not unusual in DV cases.”

This does not seem to be an independent assignment of error. That would require that it be raised under a separate heading (Cal. Rules of Court, rules 8.204(a)(1)(B), 8.360(a)), but it was not. We therefore deem it forfeited. (People v. Nguyen (2013) 212 Cal.App.4th 1311, 1325-1326.)

If only out of an excess of caution, however, we note that defendant has not shown prejudice. There did not appear to be any relevant changed circumstances. Defense counsel suggested that the victim might have had “more empathy,” but that was sheer speculation. Moreover, the trial court could reasonably deem that particular changed circumstance irrelevant.

IV

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

MILLER

J.