People v. Panozo

• Decision Date: 08 January 2021
• Docket Number: D076972
• Citation: 59 Cal.App.5th 825,274 Cal.Rptr.3d 59
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Oliver PANOZO, Defendant and Appellant.

59 Cal.App.5th 825

274 Cal.Rptr.3d 59

The PEOPLE, Plaintiff and Respondent,

v.Oliver PANOZO, Defendant and Appellant.

D076972

Court of Appeal, Fourth District, Division 1, California.

Filed January 8, 2021

Siri Shetty, under the appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael P. Pulos and Joseph C. Anagnos, Deputy Attorneys General for Plaintiff and Respondent.

DATO, J.

A jury convicted Oliver Panozo of various offenses in connection with two domestic violence incidents involving his former girlfriend. At sentencing, the court rejected Panozo's request to be placed on probation and enrolled in Veterans Court. Instead, it imposed a three-year middle term on the principal aggravated assault count.

Panozo challenges his sentence on appeal. Arguing the trial court was unaware of its statutory obligation to consider his service-related PTSD as a mitigating factor under Penal Code sections 1170.9 and 1170.91, he seeks remand for resentencing.¹ Tracing the relevant statutes and considering the record, we agree remand is necessary. Sections 1170.9 and 1170.91 obligate a court to consider a defendant's service-related mental health issues, including posttraumatic stress disorder (PTSD), as a mitigating factor in evaluating whether to grant probation and in selecting the appropriate determinate term. Although there was ample evidence of Panozo's service-related PTSD presented at sentencing, by all indications the court was unaware that it was required to consider this mitigating factor when it denied probation and imposed a three-year prison term. Accordingly, we must remand for a new sentencing hearing to permit the court to exercise its statutory obligations under sections 1170.9 and 1170.91. In all other respects, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Because Panozo challenges only his sentence on appeal, we draw our brief discussion of the underlying facts from the parties' briefs. Panozo entered the home of his ex-girlfriend L.A. in the middle of the night, put a knife to her throat, and then turned the knife on a friend of L.A.'s who had stayed the night. A month later, he violated a protective order, returned to L.A.'s home, held her against her will, and threatened to harm her family. In recorded jailhouse calls, Panozo cautioned L.A. not to report him or cooperate with investigators.

Based on these events, a jury convicted Panozo of two counts of assault with a deadly weapon (§ 245, subd. (a)(1), counts 2 & 3) and found true the attached arming allegation that he personally used a deadly and dangerous weapon. (§ 1192.7, subd. (c)(23)). It also convicted him of corporal injury to an intimate partner (§ 273.5, subd. (a), count 4); attempting to dissuade a victim from prosecuting a crime (§ 136.1, subd. (b)(2), count 6); disobeying a court order (§ 273.6, subd. (a), count 7); making a criminal threat (§ 422, count 8); two counts of attempting to dissuade a crime victim from reporting a crime (§ 136.1, subd. (b)(1), counts 9 & 10); and violating a criminal protective order (§ 166, subd. (c)(1)(A), count 11).²

Panozo filed a sentencing memorandum asking the court to "exercise its discretion and sentence him to a suspended prison sentence, grant probation, and permit him to enroll in Veteran's Court." Claiming that PTSD from serving as a Marine in Iraq "partially led him to where he is now," he noted his acceptance into the county jail's "Veterans Moving Forward Program" for mental health treatment. Highlighting his family support and military service, Panozo expressed willingness to comply with probation and stated he was "exactly the type of candidate for which Veteran's Court was designed."³ In the event the court denied probation, he requested a two-year term on the principal aggravated assault conviction (count 2) and probation on all remaining counts.

Panozo submitted several supporting exhibits. Letters from a psychiatrist confirmed his diagnoses for PTSD, alcohol use disorder, and unspecified anxiety disorder. A handwritten note from Panozo to the trial judge described his struggles with PTSD and combat-associated addiction at the time of his crimes. A picture showed Panozo in dress uniform; certificates reflected various promotions, awards, and coursework with the Marines. A letter from the Veterans Moving Forward program at the Vista Detention Facility, where Panozo was incarcerated presentence, described wellness classes Panozo was taking and indicated he was "learning to recognize the issues which resulted in his criminal behavior and healthy ways to change this behavior for the better." Appended to the letter was a reentry plan that Panozo proposed, requiring him to attend Veterans Village of San Diego Recovery Program as a condition of his probation.

In their sentencing memorandum, the People noted that Panozo was presumptively ineligible for probation (§ 1203, subd. (e)(2)).⁴ They argued this was not the unusual case where the interests of justice would overcome that presumption ( Cal. Rules of Court,⁵ rule 4.413(c) ) and asserted that the facts did not warrant probation (rule 4.414).⁶ Claiming there were no mitigating circumstances to consider, the People requested a six-year prison term, consisting of a three-year middle term on the principal assault count with consecutive sentencing on several subordinate counts.

The probation department made a similar recommendation of 6 years, 4 months in state prison. The probation report did not find this an unusual case overcoming presumptive ineligibility for probation ( rule 4.413(c) ). Nor did it find probation warranted given the nature of the offenses and Panozo's prior history (rule 4.414). There were two mitigating factors listed in the probation report in support of a grant of probation—Panozo's expressed willingness to comply with reasonable terms of probation, and social factors suggesting he had an ability to comply with such terms. (Rule 4.414(b)(3)–(4).) By comparison, five aggravating factors were listed as supporting a denial of probation: Panozo was armed; the victim was vulnerable; he inflicted physical and emotional injury; he had unsatisfactory past performance on probation; and his mental health and substance abuse problems potentially impaired his ability to comply with reasonable terms of probation. (Rule 4.414(a)(2)–(4), (b)(2), (b)(4).) Although the probation report mentioned Panozo's service in the Marine Corps from 2006 to 2010, deployment to Iraq in 2009, other-than-honorable discharge following a DUI conviction, PTSD diagnosis, and placement in the veterans module at county jail, none of these facts were listed as mitigating factors supporting a grant of probation.

At sentencing, Judge Shelton indicated he had reviewed the parties' briefs and the probation report before inviting argument. Defense counsel began by asking how a man who joined the Marines at age 18 and had no violent record could find himself where he was. He posited that Panozo must have been impacted by his service-related PTSD. In evaluating whether Panozo overcame his presumptive ineligibility for probation, counsel urged the court to consider that he "had no prior criminal violent offenses on his record, certainly just DUI's," which were attributable to his "military service where he coped with alcohol." "He used [alcohol] as a mechanism to deal with his mental distress, things he suffered during the war." A toxic relationship exacerbated his mental state, but counsel represented that Panozo was "a changed man" and had strong family support. Accordingly, he requested probation with a suspended sentence that would allow Panozo "to enroll in Veterans Court to heal physically and mentally and get the help that he deserves." In the alternative, he sought the lower term on count 2.⁷

Panozo and his father then addressed the court. His father explained that the family was suffering, and Panozo "put his life [at risk] when he was a Marine when serving in Iraq." Panozo told the court that he was a veteran and described his deployment in Iraq. He lost a fellow Marine in combat, and another—a close friend—to suicide. Those experiences left him with PTSD, and sleeplessness led to alcohol abuse. Psychiatric assistance and treatment from the Veterans Administration "proved beneficial." Alcohol had been his crutch, but a year of sobriety gave him a path forward. Commenting that many veterans experienced similar challenges, he requested a chance to continue rehabilitation with the Veterans Moving Forward program in Vista.

The prosecutor argued against probation, claiming "actions speak louder than words." Although Panozo struggled with PTSD and alcohol use, he had sought treatment for about a year "and still these incidents happened." Highlighting how he "terrorized" his former girlfriend, the prosecutor urged the court to impose a six-year total term.

The court then pronounced the sentence. Observing that Panozo was presumptively ineligible for probation, the court quoted the aggravating and mitigating circumstances listed in the probation report. Finding the aggravating circumstances outweighed the mitigating ones, the court denied probation with a referral to Veterans Court. Instead it imposed a three-year middle term on the principal aggravated assault conviction, weighing the use of a weapon and gravity of the crimes against Panozo's "very minimal criminal history." The court ran the remaining counts concurrently, staying some of the counts under section 654. The total sentence was three years in state prison, with a total of 673 credits. After imposing various fines and fees, the court wished Panozo luck and thanked him for his service.

DISCUSSION

Sections 1170.9 and 1170.91 obligate a sentencing court to consider a criminal defendant's qualifying service-related conditions as mitigating circumstances in...