Opinion
D081579
10-16-2023
THE PEOPLE, Plaintiff and Respondent, v. KEVIN BURGESS, Defendant and Appellant.
Sally Patrone, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCE392962 Steven E. Stone, Judge. Affirmed and remanded with instructions.
Sally Patrone, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
DATO, Acting P. J.
Defendant Kevin Burgess appeals the judgment upon resentencing after remand from a prior appeal. He asserts the trial court erred by failing to give proper weight to his childhood trauma and failing to consider evidence of mitigating mental health issues. He also argues, and the People concede, that the abstract of judgment fails to accurately reflect Burgess's custody credits. We affirm the judgment and remand for recalculation of custody credits.
FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted Burgess of assault, corporal injury to a spouse, false imprisonment by violence or menace, making a criminal threat, and misdemeanor willful cruelty to a child. Evidence at trial supported a conclusion that, over the course of two days, Burgess strangled his estranged wife to unconsciousness two times, prevented her from leaving the house, and told her young children (who were present throughout) that he would kill her if they tried to leave to get help. The trial court sentenced Burgess to a total prison term of 13 years, imposing an upper-term sentence on the principal count.
The evidence and procedural history of this case are summarized in detail in our prior opinion, People v. Burgess (June 10, 2022, D078156, [nonpub. opn.]).
Burgess appealed, but while that appeal was pending the Legislature enacted Senate Bill No. 567, which made significant amendments to Penal Code section 1170, subdivision (b)(2), narrowing the permissible grounds on which a court can impose an upper-term sentence. (Stats. 2021, ch. 731, § 1.3.) This court affirmed Burgess's conviction, but remanded for resentencing based on the postjudgment statutory amendments.
Further undesignated statutory references are to the Penal Code.
On remand, Burgess argued that his "experiences of childhood trauma and neglect" warranted the imposition of a lower-term sentence under section 1170, subdivision (b)(6). He pointed to the "Family Relationships" section in his probation report, which recounted:
"The defendant's parents were never married and he never met his father .... His mother resides in San Diego and he has a good relationship with her. He stated his mother did marry when he was a kid, but that relationship has since ended.... He was raised mainly by his grandparents and stated his mother was 'here and there.' He denied any history of being abused, but did witness his mother and step-father fighting."
He argued, "These experiences of childhood trauma and neglect were contributing factors to the offenses at hand because it is common knowledge that a child who grows up witnessing or experiencing domestic violence is more likely to become either a perpetrator or a victim." At the resentencing hearing, Burgess also argued that his offenses were connected to his history of mental health problems and substance abuse, which he claimed also merited a presumptive lower-term sentence. The People argued for an upperterm sentence, contending that Burgess "has a very significant and lengthy criminal history" and that the facts of this case "were extremely egregious."
The court agreed "this is a very serious case" and Burgess "has a very serious criminal history." It found "that the aggravating factors greatly outweigh the mitigating factors, and the lower term would be contrary to the interests of justice." Instead, the court imposed a middle-term sentence of three years for count 1, which was doubled to six years based on a "strike" prior offense (robbery) (§ 667, subds. (b)-(i)), plus an additional five years based on a "serious or violent felony" prior offense (the same robbery conviction) (§ 667, subd. (a)(1)). The court ordered sentences on other counts to be served concurrently, resulting in an aggregate term of 11 years instead of the 13 years previously imposed.
After the court announced the sentence, Burgess's wife (the victim) made a statement asking for leniency and contending that Burgess's "issues were more drug-induced mental health issues." Burgess then renewed his request for the court to consider that his offenses were "mental health and substance induced." The court noted that it "would want more evidence from mental health professionals on that issue in terms of [sic] to be sufficient evidence," but went on to state:
"[E]ven if I take everything as true without that evidence, as I said before, my ruling would still be the same; that based on a finding I made that striking the strike or striking the nickel would not be in the furtherance of justice and would endanger public safety. So that doesn't change my sentence at all. I did take into consideration everything you've said in this matter.
". . . I'm looking at his criminal history and the facts of this case. When I put all of that together, I believe that this sentence is more than warranted here."
DISCUSSION
A. Mitigating Factors
We review the court's discretionary sentencing decisions under the "deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).)"' "[T]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." '" (Id. at pp. 376-377, quoting People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) "Sentencing courts have wide discretion in weighing aggravating and mitigating factors." (People v. Lai (2006) 138 Cal.App.4th 1227, 1258.) Reviewing courts can neither "reweigh valid factors bearing on the decision below" (People v. Scott (1994) 9 Cal.4th 331, 355) nor" '" 'substitut[e] [their] judgment for the judgment of the trial judge'" '" (Carmony, at p. 377). "Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Ibid.)
Burgess argues he was entitled to a presumptive lower-term sentence under section 1170, subdivision (b)(6)(A), which provides:
"[U]nless 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, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense:
"(A) The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence."
Burgess argues that the trial court abused its discretion by "refus[ing] to consider evidence of [his] mental illness which, along with evidence of childhood neglect, justified the imposition of the presumed low term." We disagree.
Burgess argues that the trial court improperly "concluded there was no substantial evidence of appellant's mental health issues." But although it expressed some misgivings about the weight of the evidence presented, the court did consider Burgess's arguments regarding mental health, finding that "even if I take everything [regarding mental illness] as true without [additional] evidence, as I said before, my ruling would still be the same." The court expressly noted that it "did take into consideration everything [Burgess] said in this matter," and that the evidence of mental health issues did not affect its sentencing decision.
Moreover, although Burgess also argues that his struggles with mental illness and substance abuse should have supported a presumptive lower-term sentence under section 1170, subdivision (b)(6)(A), that provision concerns whether the person being sentenced "has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence," that "was a contributing factor in the commission of the offense." Burgess does not argue that his substance abuse and mental illness caused "psychological, physical, or childhood trauma" that contributed to the crimes and, thus, fails to show that the court erred by failing to adequately weigh them for purposes of section 1170, subdivision (b)(6)(A).
Nor does Burgess establish that the sentencing court's assessment of relevant circumstances otherwise constituted an abuse of discretion. Burgess argued that he suffered childhood trauma that was connected to this offense because he "witness[ed] his mother and step-father fighting" and was principally raised by his grandparents. The court found, however, that "the aggravating factors greatly outweigh the mitigating factors, and the lower term would be contrary to the interests of justice." It specifically referenced Burgess's "criminal history and the facts of this case" as factors justifying its sentencing decision.
Burgess concedes that his 20-year criminal record includes convictions for: (1) battery on a spouse; (2) burglary; (3) grand theft; (4) taking or using a vehicle; (5) driving with a suspended license; (6) forgery; (7) using a vehicle without consent; (8) misdemeanor passing a bad check; (9) misdemeanor driving without a license; (10) robbery; (11) misdemeanor influence of a controlled substance; and (12) using a car without permission. Although he does not dispute his lengthy criminal history, he contends that the prior offenses were not serious and "involved mostly property crimes." But robbery and battery are violent offenses, and half of Burgess's prior convictions resulted in prison sentences. The trial court's assessment of the criminal history was not arbitrary or irrational.
Burgess does not dispute that the circumstances of this offense are serious, but argues that "mental illness contributed significantly to the incident." Again, the sentencing court was aware of Burgess's evidence of mental illness and found that it did not merit a different sentence.
In sum, although the court apparently credited that Burgess suffered from childhood trauma, mental illness, and a substance abuse disorder, it concluded that these circumstances did not outweigh the serious nature of Burgess's offense and his long-term recidivism. That determination is not "so irrational or arbitrary that no reasonable person could agree with it." (Carmony, supra, 33 Cal.4th at p. 377.) Accordingly, the court did not abuse its broad discretion in selecting the appropriate sentence.
B. Custody Credits
The parties agree that the abstract of judgment fails to accurately reflect Burgess's custody credits. Specifically, the original abstract of judgment, prepared in October 2020, credited Burgess with a total of 904 days of presentence custody. Although a revised abstract was prepared nearly two years later following resentencing, it lists no additional custody credits. This was error; the trial court should have calculated the actual number of days Burgess spent in custody following the original sentencing and credited that time against his modified sentence. (People v. Buckhalter (2001) 26 Cal.4th 20, 23 ["When, as here, an appellate remand results in modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the 'subsequent sentence.' (§ 2900.1.)"].) Accordingly, we remand for the sentencing court to recalculate the Burgess's custody credits and revise the abstract of judgment.
DISPOSITION
The judgment is affirmed. On remand, the trial court shall recalculate Burgess's custody credits, prepare an amended abstract of judgment that includes the credits, and forward a certified copy of the abstract to the Department of Corrections and Rehabilitation.
WE CONCUR: DO, J., BUCHANAN, J.