People v. Brekke

• Docket Number: A167729
• Decision Date: 23 January 2024
• Parties: THE PEOPLE, Plaintiff and Respondent, v. BRANDON EDEN BREKKE, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

1

THE PEOPLE, Plaintiff and Respondent, v. BRANDON EDEN BREKKE, Defendant and Appellant.

A167729

California Court of Appeals, First District, Second Division

January 23, 2024

NOT TO BE PUBLISHED

(Solano County Super. Ct. Nos. FCR 364808, FCR 365458)

Mayfield, J. ^[*]

After finding defendant Brandon Eden Brekke violated probation in two separate cases, the trial court sentenced him to a three-year upper term in each case. Defendant claims the court erred in imposing the upper terms because: (1) he was entitled to a presumption favoring the low term; and (2) the aggravating circumstances were not proven beyond a reasonable doubt or admitted by him. We affirm.

BACKGROUND

In August 2022, in case No. FCR364808 (case 1), the People charged defendant with receiving a stolen vehicle (Pen. Code § 496d, subd. (a)-count 1),^[1] misdemeanor possession of a controlled substance (Health & Saf. Code § 11377, subd. (a)-count 2), and misdemeanor driving with a revoked or suspended driver license (Veh. Code, § 14601.1, subd. (a)-count 3).

On September 2, 2022, pursuant to a negotiated disposition defendant pleaded no contest to receiving a stolen vehicle in case 1. The misdemeanor charges were dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 (Harvey). Imposition of sentence was suspended, and defendant was placed on probation for two years.

On September 26, 2022, in case No. FCR365458 (case 2), the People charged defendant with second degree robbery (§ 211-count 1) and grand theft from a person (§ 487, subd. (c)-count 2).

In October 2022, pursuant to a negotiated disposition, defendant pleaded no contest to felony grand theft in case 2. The robbery charge was dismissed with a Harvey waiver. That same day, defendant admitted violating probation in case 1 for failing to obey all laws. Imposition of sentence was suspended, and defendant was placed on probation for two years. The court reinstated defendant's probation in case 1.

In December 2022, the court summarily revoked defendant's probation in cases 1 and 2 based on allegations that defendant had shoplifted from a sporting goods store and assaulted two individuals who tried to recover the stolen property from him. (No. FCR336663 (case 3).)^[2]

In January 2023, defendant admitted violating probation by failing to obey all laws on the promise he would receive an additional 30 days in jail to be served concurrently in cases 1 and 2, and consecutive to a 90-day sentence in case 3. In February 2023, the court declined to endorse the negotiated disposition and allowed defendant to withdraw his admissions in cases 1 and 2. The court reinstated the charges in case 3 and reset the preliminary hearing in that case.

In March 2023, defendant admitted having violated probation in cases 1 and 2 by failing to obey all laws. Defendant acknowledged the maximum sentence he could receive was three years eight months. The charges in case 3 were later dismissed.

In April 2023, defendant filed a sentencing statement requesting reinstatement of his probation or in the alternative mandatory supervision. Defendant argued three circumstances in mitigation: he was suffering from a mental condition^[3] which reduced his culpability, he was under 26 years old at the time of each offense, and he had pleaded no contest in both cases prior to a preliminary hearing and admitted his probation violations at an early stage of the proceedings. Defendant did not raise any arguments pursuant to amended section 1170, subdivision (b) in his sentencing statement.

At the sentencing hearing, the court noted it had read and considered defendant's sentencing statement, as well as the probation reports. The People argued defendant had "clearly shown" he was "not amenable to probation" and asked the court to impose a "straight-time sentence" of three years eight months. Defense counsel responded if the court was unwilling to reinstate probation, it should impose a suspended portion of the sentence on mandatory supervision. Additionally, defense counsel asserted "none of the aggravating factors were admitted or proven, so I don't even know how we would get to a high-term sentence in a full max out."

The court denied a further grant of probation because defendant had "failed miserably on probation." It rejected the requested split sentence as inconsistent with the "interest of justice" because defendant had been unable to "comport himself as a law-abiding citizen" during his multiple grants of probation, which was the "whole point" of a split sentence. Finding the aggravating factors in cases 1 and 2 outweighed those in mitigation, the court imposed the upper term of three years in each case, to be served concurrently. The court explained, "I'm doing it primarily because of his record and because of the fact that I'm running these cases concurrent understanding that the law probably favors the low-term, but his record is so poor that it suggests the high-term." Defense counsel repeated: "[A]s far as aggravating factors the court is finding outweigh it, I mean, he didn't ad[mit] any of the aggravating factors." The court responded, "I don't have to have [the defendant] admit any of them when I look at this sentence if I'm running concurrent, nor do they have to be pled and proved. Those two things don't require that, and those are what I find the most aggravating in his sentence. If there was something else that had been pled and proved, I would have given him three, eight."

DISCUSSION

Defendant contends he is entitled to resentencing because the court failed to adhere to recent legislation that limits a court's discretion to impose an upper term sentence and in certain circumstances, creates a presumption of a lower term sentence. The People concede that the court erred when it imposed the upper terms because the aggravating factors had not been proven beyond a reasonable doubt or admitted by defendant, but maintain that remand for resentencing is not required.^[4] We find that defendant did not make an initial showing which triggered the presumption of the lower term. We agree with the parties that the court erred when it imposed the upper term in each case in the absence of defendant's stipulation or proof of the aggravating facts beyond a reasonable doubt. As we explain, remand is not warranted on this record because this error was harmless.

I. Applicable Law and Standard of Review

Effective January 1, 2022, section 1170 was amended in several respects, two of which are relevant to this case. First, Senate Bill No. 567 (2021-2022 Reg. Sess.) made the middle term of imprisonment the presumptive sentence. (§ 1170, subd. (b)(2), as amended by Stats. 2021, ch. 731, § 1.3.) Under the amended statute, a trial court may impose an upper term sentence only where there are aggravating circumstances in the crime and the defendant has either stipulated to the facts underlying those circumstances or they have been found true beyond a reasonable doubt. (§ 1170, subd. (b)(1)-(2).) The sentencing court may also rely on certified records of conviction without having to submit the prior convictions to the jury. (Id. at subd. (b)(3).)

Second, Assembly Bill No. 124 (2021-2022 Reg. Sess.) created a presumption in favor of the lower term when, among other things, a defendant's youth^[5] or "psychological, physical, or childhood trauma" is a "contributing factor" to the defendant's commission of an offense. (§ 1170, subd. (b)(6)(A), (B).) The statute permits the trial court to depart from the low term if "the court finds that the aggravating circumstances outweigh the mitigating circumstances" such that "imposition of the lower term would be contrary to the interests of justice." (§ 1170, subd. (b)(6).)

When making sentencing choices, a trial court has broad discretion. (People v. Dryden (2021) 60 Cal.App.5th 1007, 1031.) We presume the trial court was aware of and followed the law when it exercised its sentencing discretion. (People v. Weddington (2016) 246 Cal.App.4th 468, 492.) "In reviewing for abuse of discretion, . . .' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.]" '" (People v. Carmony (2004) 33 Cal.4th 367, 376; People v. Fredrickson (2023) 90 Cal.App.5th 984, 988 (Fredrickson).) "To meet [that] burden, the defendant must 'affirmatively demonstrate that the trial court misunderstood its sentencing discretion.'" (People v. Lee (2017) 16 Cal.App.5th 861, 866.)"' "In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." '" (Carmony, at pp. 376-377.) Where, as in this case, a party alleges the court failed to apply a statutory sentencing presumption, the record must affirmatively demonstrate compliance with the statutory mandate whenever the mandate has been triggered by an initial showing of the applicability of the statute. (People v. Bruhn (1989) 210 Cal.App.3d 1195, 1199; Fredrickson, at p. 991.)

II. Defendant is Not Entitled to Resentencing

A. Defendant Did Not Establish that the Lower Term Presumption Applied

Defendant was 24 years old when he committed the underlying offenses and had a "crazy" childhood which included "a lot of neglect." He asserts without further discussion that these facts "justified the low term in both cases." By this undeveloped argument, which is unsupported by analysis or citation to legal authority, defendant fails to preserve the issue for review. (People v. Stanley (1995) 10 Cal.4th 764, 794.)

Even if the issue had not been forfeited, defendant's argument that his youth or his childhood trauma,...