People v. Tilley

• Citation: 92 Cal.App.5th 772,309 Cal.Rptr.3d 788
• Docket Number: C096411
• Decision Date: 20 June 2023
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ernest Samuel TILLEY, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

92 Cal.App.5th 772
309 Cal.Rptr.3d 788

The PEOPLE, Plaintiff and Respondent,
v.
Ernest Samuel TILLEY, Defendant and Appellant.

C096411

Court of Appeal, Third District, California.

Filed June 20, 2023

Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Dina Petrushenko, Deputy Attorneys General, for Plaintiff and Respondent.

BOULWARE EURIE, J.

92 Cal.App.5th 775

After defendant Ernest Samuel Tilley pled no contest to robbery ( Pen. Code, § 211 )¹ and admitted a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), the trial court sentenced him to the middle term, doubled pursuant to the strike. On appeal defendant contends: (1) the trial court abused its discretion in imposing the middle term, because the court did not consider defendant's mental health

309 Cal.Rptr.3d 791

problems in accordance with section 1170, subdivision (b)(6); (2) if that claim is forfeited, he received ineffective assistance of counsel; and (3) the judgment must be modified, as the trial court improperly advised defendant as to the parole consequences of his plea. We will affirm the judgment.

BACKGROUND

Defendant went to a Tractor Supply store and walked out with several items of merchandise without paying for them. An employee confronted defendant as he left the store and told him to return the merchandise. Defendant did not comply. Instead, he grabbed the employee, pushed her against the wall, and again tried to leave. The employee tried to retrieve the merchandise from defendant, and he threatened to kill her if she did not stop. She stopped and let him leave the store. Law enforcement officers later found defendant with approximately $200 of property stolen from the store in his backpack, as well as property stolen from another store on a different date. Defendant also was convicted in 2019 of assault with a deadly weapon. ( § 245, subd. (a)(1).)

The People charged defendant with second degree robbery ( § 211 ; count 1), criminal threats ( § 422, subd. (a) ; count 2), and misdemeanor possession of stolen property ( § 496, subd. (a) ; count 3). They further alleged that defendant had two prior strike convictions ( §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d) ) and two prior serious felony convictions ( § 667, subd. (a) ).

Following a competency evaluation and hearing, the trial court declared defendant incompetent, placed him in a state hospital, and suspended criminal proceedings. Approximately six months later, the trial court ordered defendant restored to competence and reinstated criminal proceedings.

Defendant pled no contest to second degree robbery and admitted the 2019 prior strike conviction in exchange for a maximum sentence of 10 years and

92 Cal.App.5th 776

dismissal of the remaining charges. Pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 and section 1385, defendant made a motion for the court to exercise its discretion to dismiss the prior strike for purposes of sentencing. In making this argument, in both the motion and at the sentencing hearing, counsel argued defendant suffered from mental health problems at the time the crime was committed, and both the employee and police officer believed defendant "was acting strange and not making any sense." Counsel also noted defendant's history of mental health problems had contributed to his criminal behavior, and asserted defendant's current crime was due to his "mental health and financial situation." Defense counsel also asked the court to consider imposing the lower term given the minor injuries to the employee and that the value of the property taken was not substantial. The People acknowledged defendant's mental health problems and agreed that, in light of those problems, an upper term sentence was not warranted, but argued those problems did not mitigate the term to the lower term in view of the "troubling experience" of the employees of the store.

The probation report reflected defendant was diagnosed with paranoid schizophrenia approximately 37 years before the current offense, had participated in mental health services, and had been prescribed medication but had not taken it for several years. Defendant admitted to the probation department investigator that he was under the influence of methamphetamine at the time of the offense. The probation report concluded there were no mitigating

309 Cal.Rptr.3d 792

factors, but as aggravating factors had not been pled and proven "Senate Bill [No.] 567 would appear to constrain the Court to the middle term."

The trial court denied the motion to strike finding, based on his lengthy and serious prior criminal history, that defendant came within the spirit of the three strikes law. The trial court then considered striking the strike under section 1385, subdivision (c).² Although the court acknowledged defendant had some mental health conditions, it concluded the current offense was not directly related to mental illness, and declined to strike the prior strike conviction under section 1385, subdivision (c).

In determining the appropriate term to impose, the trial court noted that none of the aggravating factors had been found in compliance with section 1170, subdivision (b)(2), so it could not impose a sentence greater than the middle term. The court also expressly considered defendant's mental illness and found his mental health condition was a mitigating factor. After balancing

92 Cal.App.5th 777

the factors, the court sentenced defendant to the middle term of three years, doubled pursuant to the strike. The court imposed various fines and fees, and awarded defendant 706 days of presentence custody credit. The trial court also advised defendant, pursuant to section 3000, subdivision (b), that he would be on parole for three years following his release from custody.

DISCUSSION

I

Defendant contends the trial court abused its discretion by imposing the middle term, as it did not make any "apparent allusion to the mandate of Assembly Bill [No.] 124,"³ which required the court to impose the lesser term if the person has experienced psychological, physical, or childhood trauma. ( § 1170, subd. (b)(6)(A).) He claims the court made no "meaningful analysis of [defendant's] mental condition, nor whether the imposition of the lower term would be contrary to the interests of justice." Anticipating our conclusion that this argument was forfeited, defendant alternatively argues his trial counsel rendered ineffective assistance by failing to object to the middle term sentence.

Senate Bill No. 567 became effective, January 1, 2022, approximately four months prior to defendant's sentencing. As relevant here, Senate Bill No. 567, codified

309 Cal.Rptr.3d 793

in section 1170, subdivision (b)(6), created a presumption in favor of the lower term if a defendant's psychological, physical, or childhood trauma contributed to the commission of the offense. ( § 1170, subd. (b)(6).) Section 1170, subdivision (b)(6) does not require the court to impose the lower term because of defendant's mental illness, but for psychological trauma. While at least one court has concluded "psychological trauma based on mental illness may be a circumstance qualifying for the lower term presumption in section 1170, subdivision (b)(6)," that court also emphasized that mental illness alone did not qualify for the lower term presumption. (

92 Cal.App.5th 778

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