Filed 1/9/20 P. v. Lee CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JAVAR DEVON LEE,

Defendant and Appellant.

F076235

(Super. Ct. No. BF153064A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge.

Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Javar Devon Lee appeals from the sentence imposed at resentencing upon a prior remand. He argues the trial court prejudicially erred in failing to obtain a comprehensive probation report in connection with his resentencing. We agree. Lee’s sentence is vacated and the matter is remanded for resentencing. On remand, Lee will be entitled to an updated probation report that encompasses information regarding his conduct while incarcerated during the pendency of his appeals.

FACTS AND PROCEDURAL HISTORY

At about 2:00 a.m., on January 30, 2014, Lee’s sister called 911 because Lee, who was at her house, was acting strangely while watching “the church channel.” He was talking to himself and referring to himself as Jesus. Lee had also behaved oddly earlier in the day, talking to himself, laughing inexplicably, getting into arguments, and saying he was Jesus.

When deputies arrived and knocked on the door, Lee left the house. As the deputies talked to Lee’s sister, Lee got into a traffic collision two or three blocks away. E.A. was driving the other car involved in the collision. E.A.’s sister, R.D., was a passenger in the car. Neither E.A. or R.D. were injured in the crash. Lee was also unhurt. Both cars sustained “minor front end collision damage.”

Immediately after the collision, Lee emerged from his car with a tree branch. He threatened to kill A.E. and R.D. were they to call the police. He also struck A.E. with the branch. R.D. testified that Lee hit E.A. four times: on the face, arms and hands, and head. After a hit to his head, E.A. collapsed and lost consciousness. R.D. noted, “It was something that happened very fast.” Lee also threatened to hit R.D. R.D. flagged down a passing a motorist for help. Lee walked towards some houses where people had gathered and were calling to him.

California Highway Patrol Officer David Harris arrived at the collision site. He found R.D. and E.A. by the side of their car. E.A. was disoriented and bloodied from “apparent head trauma” and was taken to the hospital. E.A. was later determined to have suffered a laceration to his cheek and two lacerations on his scalp. The cuts to the scalp were closed with staples and the cut to the cheek with stitches, with no complications.

A woman sitting outside her residence, across from the collision site, reported that shortly after the crash, a man had walked away from the scene. A little later, Officer Harris saw Lee emerge from the side yard of this same residence carrying a “tree branch,” “yelling,” and “making some unusual statements.” Lee complied with a command to drop the stick and Harris and his partner took him into custody without incident. Lee said his name was Jesus; he also said he “just returned from hell” and “was looking for demons.” Lee’s demeanor at the time was fluctuating: “At times he would be very calm and mellow, and actually jovial, laughing, and other times, he was very agitated.” The tree branch recovered from Lee was about four feet long and three inches in diameter but there was no evidence regarding its heft or weight.

Officer Harris was a certified drug recognition expert. Harris noted that Lee had “resting nystagmus,” an “involuntary jerking of the eyes” often caused by “depressants, annihilates, or dissociat[ive] anesthetics” such as phencyclidine (PCP), Ketamine, and DXM. Harris concluded Lee was under the influence of a combination of cannabis and a dissociative anesthetic. Lee also told Harris he used marijuana and PCP and had last used PCP about three or four days ago. Lee’s blood was drawn and analyzed. The results were positive for cannabis but negative for PCP. However, it is possible for a person to re-experience a PCP “high” days after use.

Lee was taken to jail. Lee said he wanted to crash into cars along the way. Lee also made other strange statements. He said, “why didn’t the guy just get up and walk off and why isn’t he dead, because I’m Jesus.” Lee further said no one could kill him because he was Jesus.

Lee was charged by an information filed in the Kern County Superior Court. Counts 1, 2, and 3 pertained to E.A.: count 1 charged Lee with the attempted murder of E.A., with a premeditation and deliberation enhancement; count 2 charged Lee with assault with a deadly weapon, i.e., a tree branch, upon E.A.; and count 3 charged Lee with dissuading E.A. as a witness. (Pen. Code, §§ 664/187, 189; 245, subd. (a)(1); 136.1, subd. (b)(1).) The information further alleged a deadly weapon sentence enhancement in connection with counts 1 (attempted murder) and 3 (dissuading a witness) and a great bodily injury sentence enhancement in connection with all three counts (attempted murder, assault with a deadly weapon, and dissuading a witness). (§§ 12022, subd. (b)(1), 12022.7.)

Counts 4 and 5 related to R.D.: count 4 charged Lee with dissuading R.D. as a witness and count 5 with making a credible threat to commit a crime against her. (§§ 136.1, subd. (b)(1), 422.) The information alleged a deadly weapon enhancement in connection with both counts.

Criminal proceedings were temporarily suspended to resolve concerns about Lee’s competence to stand trial but were subsequently reinstated. The case proceeded to jury trial. The jury found Lee guilty on all counts and found true all enhancement allegations. The court imposed an aggregate term of life with the possibility of parole after 19 years.

Lee appealed to this court from the trial court judgment. We affirmed his convictions but struck the premeditation and deliberation enhancement attached to the attempted murder conviction, because the magistrate presiding over the preliminary hearing in the matter had, in refusing to bind Lee over for trial on the enhancement, made factual findings that were fatal to such an enhancement, thereby barring subsequent refiling of the enhancement in the information.

We also determined the trial court was required to stay the sentence for Lee’s conviction on count 3 (dissuading E.A. as a witness) under section 654, because the offenses against E.A.—attempted murder, assault with a deadly weapon, and dissuading a witness—were all incident to one objective, i.e., to prevent E.A. from calling the police, and accordingly represented an indivisible course of conduct for which multiple punishment was prohibited under section 654.

In light of our resolution of Lee’s original appeal, we vacated his sentence and remanded for resentencing. On remand, the trial court resentenced Lee to an aggregate term of 14 years. More specifically, the court sentenced Lee on the attempted murder conviction to the upper term of nine years, with consecutive enhancements of three years for inflicting great bodily injury and one year for using a deadly weapon. In addition, the court sentenced Lee on the conviction for dissuading R.D. as a witness to eight months (one-third the midterm), with an enhancement of four months (one-third the midterm) for using a deadly weapon. Lee’s sentences on the remaining counts were stayed pursuant to section 654.

DISCUSSION

Requirement of Updated Probation Report for Resentencing after Remand

Lee argues the trial court was required to obtain and consult a comprehensive, updated probation report prior to resentencing him upon remand. The court, however, directed the probation department to prepare a “short form recommendation based on the opinion of the Appellate Court.” Lee argues the ensuing supplemental probation report was inadequate under applicable statutory authority and the California Rules of Court, for the purposes of resentencing. We agree.

Statutory authority and the California Rules of Court specify the circumstances under which the trial court must prepare a supplemental or updated probation report for purposes of resentencing after a remand on appeal. Section 1203, subdivision (b)(1), requires the trial court to order a probation report before judgment is pronounced, for persons convicted of a felony, who are eligible for probation. Former rule 4.411(c) provides: “The court must order a supplemental probation officer’s report in preparation for sentencing proceedings that occur a significant period of time after the original report was prepared.” Although former rule 4.411(c) is couched in mandatory terms, that rule has been interpreted as requiring a supplemental probation report only where, as here, the defendant is eligible for probation. (People v. Johnson (1999) 70 Cal.App.4th 1429, 1432 [decided under former rule 411(c)].)

Furthermore, People v. Brady (1984) 162 Cal.App.3d 1, 7 (Brady), held that any updated or supplemental probation report “must” include “information regarding the defendant’s behavior while incarcerated during the pendency of any appeal, before [the court proceeds] with the resentencing.” When a defendant’s sentence is reversed, he is restored “to his original position as if he had never been sentenced,” whereby he accrues “the right to a current probation report and any other information concerning [him] while incarcerated.” (Van Velzer v. Superior Court (1984) 152 Cal.App.3d 742, 744; see People v. Jackson (1987) 189 Cal.App.3d 113, 119 [“where a sentence has been vacated and the issue remanded to the trial court for resentencing, the trial court must consider information concerning defendant’s postoriginal sentencing behavior contained in a supplemental probation [report]”; accord People v. Conners (2008) 168 Cal.App.4th 443, 457 (Conners).) People v. Tatlis (1991) 230 Cal.App.3d 1266 explained the rationale for the above described requirements is to ensure the court has available the necessary information to enable it to exercise “informed [sentencing] discretion” consistent with the defendant’s right to due process. (Id. p. 1274, italics in original.)

Here, an updated or supplemental report was required at resentencing in August 2017, because a significant period of time had passed since the original report was prepared in July 2014. (People v. Dobbins (2005) 127 Cal.App.4th 176, 181 (Dobbins) [observing that the Advisory Committee Comment to rule 4.411 “suggests that a period of more than six months may constitute a significant period of time”]; People v. Causey (1964) 230 Cal.App.2d 576, 579 [case reversed with directions that trial court order and consider a current probation report, when trial court relied on report that was two and a half years old].) Despite the fact that a significant period of time had elapsed, the supplemental probation report ordered by the trial court and dated August 2, 2017, was generated based, expressly, on a “review of the presentence report dated July 14, 2014,” and provided updated sentencing recommendations to the extent necessarily dictated by our previous opinion, wherein we struck the premeditation enhancement attached to Lee’s attempted murder conviction and instructed the court to stay the sentence for Lee’s conviction for dissuading R.D. as a witness. Under Brady, the supplemental probation report should have included “information regarding the defendant’s behavior while incarcerated during the pendency of [his] appeal” but, by its express terms, it did not do so. (Brady, supra, 162 Cal.App.3d at p. 7; People v. Leffel (1987) 196 Cal.App.3d 1310, 1319 [remanding for resentencing and ordering that the defendant was “entitled to the preparation of an updated probation report, including information regarding the defendant’s behavior while incarcerated during the pendency of [his] appeal, since it ha[d] been over one year since he was sentenced”].) Instead, the report simply made sentencing recommendations based on the information encompassed in the original probation report, without taking into consideration Lee’s postconviction conduct over the three-year period between the preparation of the original and supplemental probation reports, respectively.

The trial court’s directive to the probation department to prepare “a short form recommendation based on the opinion of the Appellate Court” could well have signaled to the department to forgo the more comprehensive investigation warranted by the requirement of a current probation report, which requirement is logically premised on an understanding that a current probation report would encompass updated or current information. Since the new probation report here is the functional equivalent of the old report, it fails to satisfy the requirement of a current report. (See Conners, supra, 168 Cal.App.4th at pp. 456-457 [granting remand for resentencing where the probation report considered by the trial court was inadequate and specifying that, on remand, “defendant [will be] entitled to the preparation of an updated probation report, including information regarding [his] behavior while incarcerated during the pendency of [his] appeal,” italics added].)

To the extent the court’s failure to order an adequate probation report for purposes of resentencing is subject to harmless error review, we conclude the error was prejudicial. (See Dobbins, supra, 127 Cal.App.4th at p. 182 [holding that a trial court’s erroneous failure to order an updated probation report is harmless unless there is a reasonable probability of a result more favorable to the defendant absent the error]; cf. People v. Mercant (1989) 216 Cal.App.3d 1192, 1196 [reversing and remanding for resentencing because appellate court was unable to determine whether a current probation report would have disclosed information that could have benefitted the defendant].)

Here, the trial court noted it considered the “old probation report” as well as the “new recommendation” in sentencing Lee to the upper term of nine years on his attempted murder conviction (count 1). The court noted that Lee had an “extensive record; albeit, they are misdemeanors that involve[d] mostly controlled substances [or] alcohol.” The court indicated that although Lee had one prior felony conviction from 2008, “he was placed on felony probation and successfully completed probation, so certainly the successful completion of probation is a mitigating factor.” The court added: “This case also involved [Lee] being under the influence of something according to the probation report and according to my recollection, and it certainly didn’t appear at least on some level that Mr. Lee was fully aware of everything that was going on based on his statements and so forth, so certainly there was something going on with Mr. Lee as Mr. Lee [himself] has pointed out.” The court further commented: “[I]t’s an interesting case, and on some level it appears to be out of character for Mr. Lee.”

The court also commented on aggravating factors, including Lee’s prior convictions and the fact that Lee was on misdemeanor probation at the time the instant offenses were committed. The court noted that “[the instant matter] was a very serious crime where someone was injured seriously, obviously, could have been killed as a result of Mr. Lee’s actions. Albeit, to some extent, he may not have been fully cognizant of what he was doing.” The court reiterated that “the male victim was struck three times … with a heavy wooden object,” making this “a very serious case based on what took place.”

However, the parties agree it was error for the court to rely on the injuries inflicted on E.A. as well as on Lee’s use of the tree branch to strike E.A. for purposes of imposing the upper term for attempted murder (count 1), as these factors were also used to impose the enhancements for inflicting great bodily injury and using a deadly weapon in connection with the sentence on this count. (See § 1170, subd. (b); rule 4.420(c) [a fact charged and found as an enhancement cannot ordinarily be used as a reason for imposing a particular term].)

Significantly, in sentencing Lee to the upper term on the attempted murder conviction, the court observed, “And, again, this was a close call because of the reasons I have indicated.” (Italics added.) After sentencing Lee, the court further noted: “Mr. Lee, I want to wish you luck. I mean, you look better certainly now than you did when you were here the last time. You look like you’re in a better state of mind. [¶] As I indicated, I do think there were issues in your mind that played a part in this that [were] brought on unfortunately by the substances that you were using.”

In light of the above described record, we conclude the failure to include, in the supplementary probation report, information regarding Lee’s conduct during his incarceration over the period of pendency of his appeal, was prejudicial. The court noted that imposition of the upper term on count 1 was a “close call.” The court further alluded to several factors in mitigation, i.e., that Lee did not have a history of violence, that the offense appeared out of character for Lee, and that Lee’s prior offenses were misdemeanors save for one felony (for which he was granted felony probation that he successfully completed). In addition, two of the aggravating factors mentioned by the court, i.e., bodily injury to E.A. and use of the tree branch, were improper, as the People concede. Given our conclusion that, under the circumstances, the court’s failure to obtain a current probation report as contemplated by the applicable authorities was prejudicial, we will vacate Lee’s sentence and remand for resentencing.

To the extent an argument can be made that Lee forfeited his challenge to the supplemental probation report because his counsel failed to object on this basis in the trial court, we may review this issue despite any forfeiture in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7.)

Since we are remanding for resentencing because of noncompliance with section 1203, subdivision (b)(1), rule 4.411, and applicable caselaw, we need not address Lee’s additional contention that the trial court abused its discretion under rule 4.423(b)(2), for failing to consider as a mitigating factor, the evidence indicating Lee was in the grip of a drug induced mental disorder when he committed the instant offense. There will be an updated probation report, along with any response to the report by defense counsel, for the trial court to consider before resentencing Lee.

DISPOSITION

Lee’s sentence is vacated and the matter remanded for resentencing. On remand, Lee will be entitled to a current probation report that encompasses information regarding his conduct while incarcerated during the pendency of his appeals. The trial court is directed to give due consideration to that report in resentencing Lee.

SMITH, J.

WE CONCUR:

DETJEN, Acting P.J.

FRANSON, J.