Opinion
F086583
04-04-2024
THE PEOPLE, Plaintiff and Respondent, v. STEVEN OSCAR BLACKWELL AUSTIN, Defendant and Appellant.
William I. Parks, 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, Louis M. Vasquez, Lewis A. Martinez, and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County. No. 1465879 Dawna F. Reeves, Judge.
William I. Parks, 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, Louis M. Vasquez, Lewis A. Martinez, and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
This appeal concerns a resentencing hearing after we previously vacated the sentence in a prior appeal. Steven Oscar Blackwell Austin stands convicted of carjacking and robbery, among other crimes.
This is the fourth appeal in this case.
On appeal, Austin claims the trial court erred in declining to apply Penal Codesection 654 to the carjacking and robbery convictions. He also contends the court erred in failing to apply the low-term presumption in section 1170, subdivision (b)(6) for youthful offenders. We affirm the judgment because there is no error.
Undesignated statutory references are to the Penal Code.
Our summary is limited to the issues presented on appeal.
Austin and an accomplice entered a woman's garage, accosted her, escorted her into the home, and "put her into [a] hall closet." (People v. Austin (Dec. 3, 2018, F073937A) [nonpub. opn.] (Austin I).) Austin ransacked the home and he and his accomplice drove off in the victim's vehicle. He was convicted of carjacking, robbery, and related crimes.
At the latest sentencing hearing, the trial court pronounced judgment, selected carjacking as the principal term, and selected the middle-term of five years in prison. Austin was sentenced to a consecutive term for the robbery conviction.
In pronouncing judgment, the trial court explained it considered several filings, including a "brief" in which Austin's court-appointed counsel had argued youthfulness relative to section 1170, subdivision (b). The court concluded "[a]ll the circumstances in aggravation significantly outweigh the factors in mitigation." In sum, the court recited Austin's criminal history, believed he was "a serious danger to society," and acted with criminal "sophistication."
Austin represented himself at the sentencing hearing, but asked the judge to consider his prior counsel's brief.
DISCUSSION
Two questions are presented. One, did the court abuse its discretion by failing to apply section 654? Two, did the court fail to consider Austin's youth when pronouncing judgment? We conclude the answer to both questions is "no."
I. No Abuse of Discretion
Austin argues "section 654 precludes multiple punishment for a single act or omission or an indivisible course of conduct," i.e., the carjacking and robbery in this case. The People contend the section 654 issue is "barred by the law of the case doctrine." We agree with the People.
In the reply brief, Austin "recognizes the well established rule of the law of the case," but "submitted that this procedural doctrine should not control the outcome of the present resentencing." We disagree.
A. Additional Background
In Austin I, Austin "argued the carjacking and robbery were committed pursuant to one primary objective and intent, namely to find, take, and profit from" the victim's property. (Austin I, supra.) We held "[s]ection 654 did not preclude separate punishments." (Id.)
In Austin III, we held then-newly amended section 654 applied retroactively, and vacated the sentence to afford the trial court the opportunity to apply the new law which no longer mandated "the longest sentence possible whe[n] section 654 applied." (People v. Austin (Sept. 20, 2022, F083888) [nonpub. opn.] (Austin III).) As noted, after remand the trial court again sentenced Austin to serve consecutive sentences on the carjacking and robbery convictions.
B. Analysis
" '[W]here an appellate court states a rule of law necessary to its decision, such rule" 'must be adhered to'" in any" 'subsequent appeal'" in the same case, even where the former decision appears to be" 'erroneous'"' [Citation.] Thus, the law-of-the-case doctrine 'prevents the parties from seeking appellate reconsideration of an already decided issue in the same case absent some significant change in circumstances.'" (People v. Boyer (2006) 38 Cal.4th 412, 441.)
There is no reason the doctrine should not apply in this case. Whether section 654 mandated a stayed sentence was already fairly litigated. Because we previously held consecutive sentences on carjacking and robbery were appropriate, we adhere to that conclusion: section 654 did not preclude separate punishments in this case.
II. No Failure Relative to Youth
Taken together, section 1170, subdivisions (b) and (b)(6)(B) provide that "the court shall order imposition of the lower term if" the defendant was under 26 years of age "at the time of the commission of the offense" and youthfulness contributed to the crime, "unless 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 …." Here, Austin heralded the statute, suggesting the lower term presumption applied because he committed similar crimes as a juvenile which indicated his "behavior … was precisely the behavior he had exhibited in his youth."
On appeal, Austin contends the trial court "gave no consideration at all as to whether [his] youth was a contributing factor to the criminal conduct." The People argue the court "explicitly considered … youth as required …." The People have the better argument.
The trial court left no doubt it considered the argument section 1170 required a lower term sentence due to Austin's age-it stated it read and considered the brief which contained the argument. Admittedly, it is true the court did not further specifically rule the presumption in section 1170 was overcome by aggravating factors outweighing mitigating factors on an "interests of justice" scale.
"On appeal, [however,] we presume that the trial court followed established law and thus properly exercised its discretion in sentencing a criminal defendant." (People v. Weddington (2016) 246 Cal.App.4th 468, 492; People v. Stowell (2003) 31 Cal.4th 1107, 1114 [" 'a trial court is presumed to have been aware of and followed the applicable law.' "].) "[A] defendant forfeits on appeal any 'claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' in the absence of objection below." (People v. Wall (2017) 3 Cal.5th 1048, 1075.)" '[C]laims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' are subject to forfeiture, including '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 to give a sufficient number of valid reasons.'" (People v. Boyce (2014) 59 Cal.4th 672, 730-731.)
The forfeiture rule applies well in this case. Austin had the opportunity to request an explicit ruling on the section 1170, subdivision (b) issue, but did not. (See People v. Gonzalez (2003) 31 Cal.4th 745, 752 [forfeiture applicable where party has "opportunity to seek … clarification or changes"].) His failure to do so forfeits the claim on appeal.
In any event, the record is clear the trial court considered the section 1170, subdivision (b) presumption, believed the factors in aggravation outweighed the factors in mitigation, and sentenced Austin to serve the middle term on carjacking. There is no reason to believe the court failed to follow the law.
The record discloses no factors in mitigation.
DISPOSITION
The judgment is affirmed.
[*] Before Smith, Acting P. J., Meehan, J. and Snauffer, J.