People v. Green
| Docket Number | A166461 |
| Decision Date | 08 September 2023 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JADEN JOSEPH GREEN, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
Del Norte County Super. Ct. No. CRF 20-9180.
Defendant Jaden Joseph Green appeals after the trial court executed a previously suspended sentence following a probation violation. He contends that the trial court failed to consider a recent statutory amendment affecting his sentence that it erred in failing to require an updated probation report, and that his counsel provided ineffective assistance in not calling these matters to the trial court's attention. We reverse and remand the matter for resentencing.
Defendant was charged in April 2020 with felony second degree robbery (Pen. Code, § 211),[1] misdemeanor resisting a peace officer (§ 148, subd. (a)(1)), and misdemeanor possession of nitrous oxide (§ 381b). At the time of the offenses, he was on misdemeanor probation. (Veh Code, § 2800.1.)
Defendant entered into a plea agreement under which he would plead guilty to the robbery charge only and receive a grant of probation, and the court could consider the dismissed counts in deciding whether to grant probation and in selecting a prison term. On May 18, 2020, defendant pled guilty to the robbery charge.
As the factual basis for the plea, the prosecutor explained that on April 13, 2020, defendant entered a store in Crescent City and tried to buy Whip-Its (canisters of nitrous oxide, used for getting high), but his credit card was declined. Defendant told the store employee he would take the Whip-Its by force if necessary. He reached over the counter and took a box of Whip-Its worth more than $400 and left the store. He was caught by law enforcement officers and resisted as they tried to detain him.
On June 25, 2020 the trial court imposed, then suspended, the midterm of three years for the robbery. (§ 213, subd. (a)(2).) It explained, The court explained that it was imposing sentence before suspending it because Defendant was placed on probation for three years. Among the conditions, he was required to abstain from consumption of alcohol and marijuana and to submit to drug and alcohol testing and provide clean test results.
A petition for revocation of probation was filed on February 14, 2022, alleging that defendant complied with the terms of probation until November 2021, but that between November 9, 2021 and February 4, 2022, his drug tests were positive for cocaine four times and he twice failed to submit to a scheduled drug test.
Defendant did not appear for a hearing on March 1, 2022, and a warrant was issued for his arrest. He was arrested at his home on June 23. An officer performed a pat-down search and found a bag of methamphetamine. Drug paraphernalia and ammunition were found in defendant's bedroom.
The People filed another petition to revoke defendant's probation on June 27, 2022, alleging that on the date of his arrest he unlawfully possessed ammunition (§ 30305) and a controlled substance (Health &Saf. Code, § 11377). The trial court found defendant in violation of his probation.[2]
On September 29, 2022, the trial court terminated defendant's probation and executed the previously imposed three-year sentence for robbery. This timely appeal ensued.
When defendant was initially sentenced in 2020, section 1170 gave the trial court discretion to select a term if a statute provided three possible terms. (Former § 1170, subd. (b); People v. Lopez (2022) 78 Cal.App.5th 459, 464.) Section 213 is such a statute, setting a sentencing triad of two, three, or five years for second degree robbery. (§ 213, subd. (a)(2).) In the exercise of its discretion, the trial court imposed the middle term of three years after finding aggravating and mitigating factors were in balance.
While defendant was on probation, the Legislature amended section 1170, effective January 1, 2022, to limit the trial court's sentencing discretion in certain circumstances. (Stats. 2021, ch. 371, § 1.3 (Sen. Bill 567); Stats. 2021, ch. 695, § 5 (Assem. Bill 124); People v. Flores (2022) 73 Cal.App.5th 1032, 1038-1039 (Flores).) As relevant here, section 1170 now provides that, "unless 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 [sic]," the court must impose the lower term if any of three enumerated circumstances was a factor in the commission of the offense. (§ 1170, subd. (b)(6).)[3] Two of those factors are that the defendant was a youth at the time of the offense and that the defendant has experienced psychological trauma. (§ 1170, subd. (b)(6)(A) &(B).)
Defendant was 20 years old when he committed the robbery, qualifying as a youth under the amendments to section 1170. (§§ 1170, subd. (b)(6)(B), 1016.7, subd. (b) [].) And, he argues, there is evidence he has suffered trauma from a substance abuse disorder. As a result, he contends he was entitled to the benefit of the ameliorative amendments to section 1170 when the trial court executed his previously imposed sentence.
The Attorney General properly concedes that these ameliorative amendments apply retroactively to cases that were not yet final when they went into effect. (Flores, supra, 73 Cal.App.5th at p. 1039; People v. Achane (2023) 92 Cal.App.5th 1037, 1041-1042 (Achane); see In re Estrada (1965) 63 Cal.2d 740, 742-748 [].) And our high court has ruled that a case-like the one before us-in which "a defendant is placed on probation with execution of an imposed state prison sentence suspended is not yet final for this purpose if the defendant may still timely obtain direct review of an order revoking probation and causing the state prison sentence to take effect." (People v. Esquivel (2021) 11 Cal.5th 671, 673 (Esquivel).)
Based on these principles, defendant argues he was entitled to the new lower-term presumption, and he argues the trial court abused its discretion in failing to consider his youth and other relevant factors. He asks us, therefore, to remand the matter so the trial court may resentence him in light of section 1170's new standards. The Attorney General asks us not to consider this claim because defendant forfeited the argument by not raising it below, and he also contends it fails on the merits.
As a general matter, we do not consider claims of error that could have been, but were not, raised in the trial court. (People v. Saunders (1993) 5 Cal.4th 580, 589-590.) This rule applies to claims that a trial court did not properly make or articulate its discretionary sentencing choices. (People v. Scott (1994) 9 Cal.4th 331, 353-355.) The rule encompasses" 'cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.'" (People v. De Soto (1997) 54 Cal.App.4th 1, 8.) The rationale is that counsel is responsible for" 'understanding, advocating, and clarifying permissible sentencing choices at the hearing, [and] [r]outine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention.'" (Ibid.) Counsel is obligated not only to object generally to a sentence but to call specific objections to the trial court's attention to allow it to correct any sentencing errors. (Id. at pp. 8-9.)
After the respondent's brief in this case was filed-and apparently too late for defendant to have its benefit before submitting his reply brief-our colleagues in Division Two of this appellate district decided Achane, a case with a similar posture to the one before us. As pertinent here, the trial court in Achane imposed an upper term sentence on the defendant in 2020, then suspended execution and placed him on probation. (Achane, supra, 92 Cal.App.5th at pp. 1039-1040.) In July 2022, the trial court revoked probation and imposed the previously suspended aggravated term, as well as imposing additional terms for two additional offenses the defendant committed in the interim. (Id. at pp. 1040-1041.)
On appeal, the defendant in Achane argued he fell within the scope of the amendments to section 1170. Our colleagues concluded the defendant forfeited his claim by failing to raise it below. At the time sentence was executed, the amendments had been effect for almost seven months, and Esquivel had already established that ameliorative amendments of this sort were to be applied retroactively when sentence had been imposed but not yet executed. (Achane, supra, 92 Cal.App.5th at pp. 1042-1043, 1045-1047; Esquivel, supra, 11 Cal.5th at p. 673.)
Another recent case from this appellate district points in a different direction. In People v. Fredrickson (2023) 90 Cal.App.5th 984 (Fredrickson), our colleagues in Division Five considered a...
To continue reading
Request your trial