Opinion
A160118
07-16-2021
In re ARTHUR NOP LEW, on Habeas Corpus.
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR320190
Sanchez, J.
Arthur Nop Lew has filed a petition for writ of habeas corpus in which he contends he was denied effective assistance of counsel when his trial attorney failed to request an updated presentencing report prior to his 2019 resentencing hearing. Petitioner was originally sentenced to a 14-year prison term in 2016 following a conviction for assault with a deadly weapon. At his 2019 resentencing hearing, the trial court exercised its discretion to strike a five-year prior serious felony enhancement pursuant to recently enacted remedial legislation, but increased the term on the assault conviction from the midterm to the aggravated term, resulting in an overall sentence of 11 years. Petitioner claims an updated presentence report documenting his postconviction rehabilitative efforts and conduct while in prison would have reflected favorably on him and likely resulted in a lower sentence. In a companion appeal (People v. Lew, case No. A158383), petitioner argues that the trial court erred by failing to order the preparation of a presentencing report sua sponte.
We issued an order to show cause limited to the claim of ineffective assistance of counsel. The Attorney General has filed a return, conceding that appellant's contentions have merit and that he should be granted a new resentencing hearing with the benefit of a supplemental report. We agree and now grant petitioner the relief he seeks. We will vacate his sentence and remand the matter to the trial court to conduct a new resentencing hearing following the preparation and submission of an updated presentencing report.
By separate opinion, we dismiss the pending appeal in People v. Lew, case No. A158383, as moot.
I. FACTUAL AND PROCEDURAL BACKGROUND
The parties are familiar with the facts proven at trial, which are described by our nonpublished opinion affirming petitioner's conviction on direct appeal. (People v. Lew (July 26, 2018, A149775) (Lew I).) In brief, following an altercation in which petitioner stabbed his girlfriend's former long-term partner, a jury convicted him of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and found true enhancements for personal infliction of great bodily injury (§ 12022.7, subd. (a)) and personal use of a deadly weapon (§ 12022, subd. (b)(1)). In a bifurcated bench trial, the trial court found true six prior convictions, including a serious felony conviction.
We grant petitioner's unopposed request for judicial notice of the appellate record in both the original appeal (Lew I, supra, A149775) and the appeal that is currently pending.
All statutory references are to the Penal Code.
Prior to sentencing, a probation report was ordered by the trial court reflecting that petitioner has been convicted of multiple offenses since 1987, including receiving stolen property, vandalism, various firearm offenses, shooting at an inhabited dwelling, possession of a controlled substance, spousal abuse, and assault by force likely to produce great bodily injury. Petitioner also had a history of violating the terms of probation and parole. The instant offense was committed while he was on parole. The report noted that petitioner was statutorily ineligible for a grant of probation.
On October 6, 2016, petitioner was sentenced to an aggregate term of 14 years in state prison. The sentence was comprised of the middle term of three years on the assault charge, doubled to six years as a second strike, with a consecutive three-year enhancement for the infliction of great bodily injury and a then-mandatory five-year enhancement for the prior serious felony conviction. (§ 667, subd. (a)(1).) Petitioner's prison priors were stricken pursuant to section 1385. The court imposed a restitution fine of $6,000 (§ 1202.4, subd. (b)), along with a suspended parole revocation fine of $6,000 (§ 1202.45).
In pronouncing sentence, the trial court observed that the case was very unusual because of the degree to which the victim had been the aggressor. The court found several factors in mitigation, including great provocation (Cal. Rules of Court, rule 4.423(a)(3)), duress (rule 4.423(a)(4)), and petitioner's apparent belief that he was acting under a legal right (rule 4.423(a)(7)). It found petitioner's criminal record to be a factor in aggravation. (Rule 4.421(b)(2).) In July 2018, this court affirmed petitioner's conviction. (Lew I, supra, A149775 .)
References to rules are to the California Rules of Court.
Before petitioner's judgment of conviction became final, the Legislature enacted Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393), amending sections 667, subdivision (a) and 1385, subdivision (b) to grant trial courts the discretion to strike or dismiss a five-year enhancement for a prior serious felony conviction in “furtherance of justice.” (Stats. 2018, ch. 1013, §§ 1-2.) “Senate Bill 1393 applies retroactively to all cases or judgments of conviction in which a five-year term was imposed at sentencing, based on a prior serious felony conviction, provided the judgment of conviction is not final.” (People v. Garcia (2018) 28 Cal.App.5th 961, 971-972.)
In February 2019, petitioner filed a petition for writ of habeas corpus (In re Lew, case No. A156377), asserting that he was entitled to a new sentencing hearing to give the trial court the opportunity to exercise its discretion to strike the prior serious felony enhancement in light of Senate Bill 1393. The Attorney General agreed that resentencing should take place, and the following month we issued an order to show cause. Petitioner then filed a request with the trial court to strike the previously imposed five-year prior serious felony enhancement pursuant to Senate Bill 1393. The district attorney filed an opposition.
On August 14, 2019, petitioner was resentenced by the same judge who had presided over petitioner's trial and original sentence. Petitioner did not appear at the resentencing hearing and his counsel did not request preparation of a supplemental presentencing probation report. The court granted the motion to strike the prior serious felony enhancement. Turning to petitioner's sentence on the assault conviction, the court found as circumstances in aggravation the “high degree of viciousness” in the way petitioner used knives to inflict the injuries, his numerous and increasingly serious prior convictions (rule 4.421(b)(2)), the fact that he was on probation at the time of the offense (rule 4.421(b)(4)), and the fact that his prior performance on parole or probation had been unsatisfactory (rule 4.421(b)(5)). As circumstances in mitigation, the court found that the victim initiated the incident (rule 4.423(a)(2)), there was great provocation unlikely to recur (rule 4.423(a)(3)), petitioner was under duress (rule 4.423(a)(4)), and petitioner believed he had a claim of right and mistakenly thought his conduct was legal (rule 4.423(a)(7)).
This finding corresponds with the language of rule 4.421(a)(1), although the court did not expressly reference that rule at resentencing.
The trial court stated that but for his criminal history, petitioner would have been sentenced to the mitigated term for the offense. While the court found it in the interest of justice to strike the prior serious felony enhancement in light of the fact that the underlying sentence had been doubled due to the prior strike, the court decided to resentence petitioner to the aggravated term on the assault conviction “because it lends so much weight to the fact that he had these prior convictions that are with this now increasing seriousness and keep just going. He keeps getting in trouble. [¶] The reality is if he hadn't had this lifestyle, basically assaultive conduct, he wouldn't have gotten himself in this situation. He wouldn't [have]. I think he used too much force.” The court found the aggravating factors outweighed the mitigating factors and resentenced petitioner to the upper term of four years on the assault, doubled to eight years by the strike prior, plus three years for the great bodily injury enhancement. The court reimposed the prior restitution and parole revocation fines.
II. DISCUSSION
As noted above, our inquiry here is limited to petitioner's contention that he was deprived of effective assistance of counsel when his attorney failed to request an updated presentencing report prior to his resentencing hearing.
“To establish ineffective assistance of counsel, a petitioner must demonstrate that (1) counsel's representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation subjected the petitioner to prejudice, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the petitioner.” (In re Wilson (1992) 3 Cal.4th 945, 950.) Here, petitioner asserts that he was denied effective assistance of counsel when his trial attorney failed to request a supplemental probation report. We agree.
In advance of the hearing, petitioner provided to his trial counsel several documents identifying the rehabilitative programs in which he successfully participated during the 34 months of his incarceration, including anger management, victim awareness, domestic violence, and substance abuse programs. Petitioner contends that a presentence report would have disclosed additional positive information, including his clean disciplinary record and his prison employment, and that trial counsel would have had no reason to be concerned that a report would uncover any damaging findings. Petitioner's trial counsel confirms in his declaration that he had no tactical reason for failing to request an updated probation report. As petitioner states, “[g]iven the relevance of current information and the fact that it would have been favorable, petitioner's counsel should have requested [that a supplemental report be ordered].”
We also agree with petitioner that if defense counsel had asked for an updated probation report, it is highly likely the trial judge would have granted the request. “[I]t is well settled that when a case is remanded for resentencing after an appeal, the defendant is entitled to ‘all the normal rights and procedures available at his original sentencing' [citations], including consideration of any pertinent circumstances which have arisen since the prior sentence was imposed [citation].” (Dix v. Superior Court (1991) 53 Cal.3d 442, 460; see also People v. Tatlis (1991) 230 Cal.App.3d 1266, 1273 [holding that while the decision “whether to order a current probation report on remand for resentencing clearly is a discretionary rather than a mandatory matter, ” ordering an updated probation report is the “preferred practice” and the trial court must have some substantial basis for denying a request]; People v. Bullock (1994) 26 Cal.App.4th 985, 989-990; People v. Yanaga (2020) 58 Cal.App.5th 619 (Yanaga).) The record does not disclose any reason why the trial court might have rejected a request to order a supplemental probation report. As petitioner notes, the judge continued the resentencing hearing for four months, in part to allow the parties to research the scope of the court's discretion on resentencing. This suggests the court would have been amenable to considering new information bearing on petitioner's postconviction conduct and rehabilitation efforts in prison.
The Attorney General does not dispute that defense counsel's performance in failing to request a presentencing report was deficient and concedes that the sentencing court should “have the opportunity to exercise more informed discretion based on evidence of petitioner's postjudgment conduct in prison.” The Attorney General's concession is informed by Yanaga, supra, 58 Cal.App.5th 619, a recent opinion issued by our colleagues in the Second District Court of Appeal.
In Yanaga, the defendant obtained a resentencing hearing following legislative amendments to section 12022.53, subdivision (h), authorizing trial courts to strike firearm enhancements in the interest of justice. (Yanaga, supra, 58 Cal.App.5th at p. 622.) As part of his request to dismiss the firearm enhancement, the defendant submitted documents regarding his conduct over the four years he had spent in prison, including “a ‘laudatory chrono' from a catholic prison chaplain; a ‘[c]haracter [r]eference [l]etter' from a protestant prison chaplain; and commendations for his active participation in a ‘12-step self-help rehabilitation program,' an ‘Anti-Recidivism Coalition Youth Offender Mentoring Program,' and a ‘live-in placement' program that trains dogs to serve wounded veterans.” (Id. at pp. 623-624.) He also submitted certificates documenting his successful completion of three 10-week rehabilitation programs. (Id. at p. 624.) The lower court refused to consider the defendant's postjudgment rehabilitative efforts, mistakenly believing that it could consider only the information that was before the original sentencing court. (Id. at p. 622.) The resentencing court's error was deemed prejudicial because the resentencing court had been unaware of the full scope of its discretionary power to consider postjudgment behavior in prison. The matter was remanded for a new sentencing hearing. (Id. at p. 628.)
The present petition is distinguishable from Yanaga in that the trial court has not misconstrued the relevant scope of its discretionary power. Rather, the error stems from defense counsel's failure to request a supplemental probation report in advance of the sentencing hearing or otherwise present relevant postconviction evidence. Petitioner's habeas counsel, having reviewed petitioner's prison records in March 2020, represents that he was unable to find any documents that reflect poorly on petitioner. Petitioner has been discipline free for the duration of his incarceration. Petitioner has completed eight self-help programs, including Alcoholics Anonymous, anger management, victim awareness, Criminal and Gang Members Anonymous, criminal thinking, life coping skills, domestic violence, and a six-week course called “Promoting Manhood: M.A.N.U.P.-Character Development.” Petitioner has held a prison job and has been cleared to access computers within the institution and to live in dormitory housing. He has also enrolled in GED classes and was praised as a self-motivated student who “puts a great deal of time and effort into his class work.” He also received positive reviews from the prison's unit classification committee and appeared to be close to obtaining level I classification, which would allow him to be treated as a minimum-security inmate.
We agree with the parties that the omission of such evidence from the sentencing hearing prejudiced petitioner, as we cannot say that the trial court would have made the same sentencing decision had it been made aware of this information. The trial court was clearly concerned about petitioner's pattern of reoffending, and it balanced his criminal history against the mitigating factors presented by the unusual circumstances surrounding the commission of the underlying offense. The evidence of petitioner's rehabilitative efforts in his habeas petition suggests that during the 34 months he spent in prison following his original sentence, he made a concerted effort to understand and address the character issues underlying his recidivist behavior. Petitioner is entitled to have the sentencing court exercise its discretion in an informed manner, and to weigh these mitigating circumstances against other factors in aggravation. (People v. Tatlis, supra, 230 Cal.App.3d at p. 1274.)
While we agree petitioner should be accorded the relief he seeks, we express no opinion as to whether his current sentence should be further reduced at his new resentencing hearing. We note only that the sentence imposed on resentencing may not exceed the aggregate prison term imposed under the current sentence: “[A] defendant should not be required to risk being given greater punishment on a retrial for the privilege of exercising his right to appeal.” (People v. Ali (1967) 66 Cal.2d 277, 281; see also People v. Hanson (2000) 23 Cal.4th 355, 358-360.)
III. DISPOSITION
The sentence is vacated. This matter is remanded to the trial court for resentencing following the submission to the court of an updated presentence report.
WE CONCUR: Margulies, Acting P. J., Banke, J.