Opinion
D072984
11-28-2018
THE PEOPLE, Plaintiff and Respondent, v. RONALD REESE, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD271805) APPEAL from a judgment of the Superior Court of San Diego County, Leo Valentine, Jr., Judge. Affirmed. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Ronald Reese guilty of one count of robbery with a deadly and dangerous weapon (Pen. Code, §§ 211 & 12022, subd. (b)(1), count 1), and two counts of making criminal threats with a deadly and dangerous weapon (§§ 422 & 12022, subd. (b)(1), counts 2 and 3). The trial court subsequently found Reese suffered a prior felony conviction that qualified as both a serious felony (§§ 667, subd. (a)(1), 668 & 1192.7, subd. (c)) and a strike prior (§§ 667, subds. (b)-(i), 668 & 1170.2). The court sentenced Reese to nine years in prison and imposed without objection a $10,000 restitution fine.
Statutory references are to the Penal Code unless otherwise stated.
Reese now appeals, asserting his trial counsel was ineffective for failing to request a voluntary intoxication jury instruction and for failing to object to the imposition of the restitution fine. He also asserts the court erred in failing sua sponte to instruct the jury with the voluntary intoxication instruction.
Finally, by way of supplemental briefing, Reese asserts the matter should be remanded for resentencing pursuant to Senate Bill No. 1393 (2017-2018 Reg. Sess.), which amends sections 667, subdivision (a)(1) and 1385, subdivision (b), effective January 1, 2019, to give courts discretion to dismiss or strike a prior serious felony conviction for sentencing purposes. As we explain, we agree the matter should be remanded for resentencing based on Senate Bill No. 1393. In all other respects, we affirm the judgment of conviction based on this particular record (see fn. 4, post).
FACTUAL AND PROCEDURAL BACKGROUND
We view the evidence in the light most favorable to the judgment of conviction. (See People v. Osband (1996) 13 Cal.4th 622, 690.)
Reese entered a drugstore at 7:13 a.m., shortly after the store opened. Once inside, Reese unpackaged a pair of scissors. He then left the drugstore with the scissors, threatening to stab store employees if they tried to stop him.
At trial, Reese's defense theory was that his mental illness negated the specific intent requirement for all charges. In a motion in limine, defense counsel moved to admit testimony of an expert with a Ph.D. in psychology to speak of Reese's current diagnosis of unspecified schizophrenia and to show how such a diagnosis could prevent an individual from forming specific intent. Over the prosecutor's objection, the court granted the motion.
Reese testified on his own behalf at trial. He told jurors that he had not slept for two days prior to entering the drugstore. Reese stated that at 5:00 a.m. on the morning in question, he smoked "like a 10-dollar blunt" of marijuana. Reese also testified he had consumed "maybe four or five beers," but did not specify when they were consumed. Store employees, however, testified that Reese did not appear intoxicated when he committed the alleged crimes.
Reese also told jurors he was first diagnosed with the mental illness of schizophrenic paranoia "maybe 13, 14 years ago." He told the jury that on the day of the incident, he started "tripping" and hearing the voices of "demons" that were taunting him, so he entered the drugstore with the intention of hiding from the demons. Reese testified he was then "trapped" inside of the drugstore because the demons were coming inside to get him. He stated that, because of the demons, he took the scissors out of the packaging to protect himself. Reese told the jury that the demons he saw seemed as real as anything he could see at that moment.
As noted, Reese proffered an expert who testified to the results of a psychological evaluation completed on him. Based on the evaluation and a review of Reese's psychiatric records, the expert diagnosed Reese with "unspecific or schizophrenia spectrum and other psychotic disorder[s]" as well as "an alcohol use disorder." The expert testified that it was very possible that Reese was exhibiting symptomatology of unspecified schizophrenia on the date of the incident.
After the conclusion of the evidence, the trial court instructed the jury on mental impairment as a defense to specific intent or mental state. Using CALCRIM No. 3428, as modified accordingly, the trial court instructed: "You have heard evidence that the defendant may have suffered from a mental disorder. You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted with the intent or mental state required for that crime. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state, specifically: When a defendant used force or fear to take the property, he intended to deprive the owner of the property permanently. If the People have not met this burden, you must find the defendant not guilty of Robbery. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state, specifically: defendant intended that his statements be understood as a threat and intended that it be communicated to [the victims]. If the People have not met this burden, you must find the defendant not guilty of Count 2, Criminal Threat, Penal Code Section 422. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state, specifically: defendant intended that his statements be understood as a threat and intended that it be communicated to [the victims]. If the People have not met this burden, you must find the defendant not guilty of Count 3, Criminal Threat, Penal Code Section 422." The jury rejected this defense and convicted Reese of robbery and making criminal threats, as noted.
DISCUSSION
I
Reese argues his trial counsel was ineffective for failing to request a jury instruction on voluntary intoxication. The instruction Reese now asserts was required, CALCRIM No. 3426, states: "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted [or failed to do an act] with [specific intent]. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assume the risk of that effect. In connection with the charge[s] of [robbery and making criminal threats] the People have the burden of proving beyond a reasonable doubt that the defendant acted . . . with specific intent. [¶] You may not consider evidence of voluntary intoxication for any other purpose."
A
"Reviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel's omissions." (People v. Lucas (1995) 12 Cal.4th 415, 442 (Lucas); see also People v. Anderson (2001) 25 Cal.4th 543, 569 ["When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation."].) Further, to succeed on a claim of ineffective assistance, the defendant must show not only that "counsel's representation fell below an objective standard of reasonableness," but that "the deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland).) To prove prejudice, the defendant bears the burden to show a reasonable probability that, but for his or her trial counsel's errors, the result would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217.)
B
Here, we conclude defense counsel's decision not to pursue voluntary intoxication as a defense was tactical and candidly, quite rational. (See Lucas, supra, 12 Cal.4th at p. 442.) As noted above, this defense may be considered "only in a limited way" (CALCRIM No. 3426). As further noted, the evidence of defendant's intoxication was very limited; he testified he had consumed "maybe four or five beers" but did not specify when he had consumed them, and mentioned it could have been over a two-day period before the incident. Although he testified he smoked some marijuana before he entered the drugstore shortly after 7:00 a.m., he was ambiguous as to how much he had smoked or exactly when he had smoked it. In addition, drugstore employees stated defendant did not appear intoxicated during the incident.
Conversely, there was substantial evidence proffered by the defense to support the court's CALCRIM No. 3428 instruction on the issue of mental impairment. Defense counsel in connection with motions in limine argued for admittance of expert testimony regarding Reese's then-current diagnosis of unspecified schizophrenia, and how such a diagnosis could prevent an individual from forming the specific intent required to commit counts 1-3. At trial, Reese and the expert testified to Reese's history of mental illness, as well as the potential effect of his illness on his mental state on the day of the incident, when he claimed to be hearing "demons," which is suggestive of a mental health issue, as opposed to being intoxicated. Additionally, during closing argument, defense counsel argued Reese lacked the specific intent necessary to be convicted of all crimes charged because of Reese's history of mental illness.
Moreover, we agree with respondent that, as a tactical matter, Reese's defense counsel could have reasonably concluded at trial that jurors would be more sympathetic to Reese if they believed he was suffering from mental illness on the morning of the incident in contrast to being merely intoxicated. Because this strategy of avoiding reference to voluntary intoxication was rational, we reject defendant's assertion that defense counsel's decision not to request CALCRIM No. 3426 fell below an objective standard of reasonableness. (See Lucas, supra, 12 Cal.4th at p. 442.)
However, even if defense counsel's tactical choice fell below the objective standard of reasonableness, we conclude Reese is unable to show prejudice. (See Strickland, supra, 466 U.S. at pp. 687-688.) The jury heard evidence of Reese's mental illness, was properly instructed with CALCRIM No. 3428, and defense counsel aggressively argued in closing that Reese's illness negated his ability to form the requisite intent on the date of the incident. In addition, the jury heard evidence that Reese had consumed drugs and alcohol at some point prior to the incident, and how drugs and alcohol could potentially worsen the symptoms of mental illness. There was nothing in the jury instruction that limited the jury's consideration of Reese's drug and alcohol use, if any, nor how the use of drugs and alcohol could have exacerbated his mental illness in the drugstore.
Clearly, in convicting Reese the jury rejected the defense theory that he lacked the specific intent to commit the offenses on the date of the incident, as was its right in its role as trier of fact. Given that the evidence of mental illness was substantially greater than the evidence, if any, of voluntary intoxication, we conclude even if CALCRIM No. 3426 had been given the result would have been the same. For this separate reason, we reject defendant's ineffective assistance of counsel claim.
Alternatively, Reese argues the court had a sua sponte duty to give CALCRIM No. 3426. We disagree. A voluntary intoxication instruction must be requested by a defendant. (People v. Verdugo (2010) 50 Cal.4th 263, 295; see also People v. Saille (1991) 54 Cal.3d 1103, 1118-1121 [noting "under the law relating to mental capacity as it exists today, it makes more sense to place on the defendant the duty to request an instruction which relates the evidence of his [or her] intoxication to an element of the crime," and further noting this is the rule "because the defendant's evidence of intoxication can no longer be proffered as a defense to a crime but rather is proffered in an attempt to raise a doubt on an element of a crime which the prosecution must prove beyond a reasonable doubt."].) As such, we reject this assertion of error.
II
Reese next asserts he received ineffective assistance of counsel because his attorney failed to object to the imposition of the restitution fine or its amount. Additionally, he asserts that the trial court abused its discretion when it imposed the maximum $10,000 restitution fine. On this particular record, we disagree.
To properly assert these claims on the merits, trial counsel was required to object in the trial court. (Evid. Code, § 353; People v. Scott (1994) 9 Cal.4th 331, 354.) Reese recognizes no such objection was made, but argues that, because he is asserting an ineffective assistance of counsel claim, we should consider the imposition of the fine on its merits.
We say on "this particular record" because if, on remand, defendant's sentence is reduced, the court may exercise its discretion and also reduce the restitution award accordingly.
A trial court's determination that a restitution order is warranted is entitled to substantial deference and must be upheld unless the court's determination was "arbitrary or capricious" and exceeds the " ' " 'bounds of reason.' " ' " (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) Section 1202.4 subsection (b)(1), applicable at the time of Reese's offenses, provided, in relevant part, "if the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000)."
Our Legislature amended section 1202.4 effective January 1, 2018. (See Stats. 2017, ch. 101 (S.B.756), § 1.) This amendment did not make any substantive changes with respect to the provisions at issue in this case.
Former section 1202.4 subsection (b)(2) further provided that the amount of restitution may be determined by multiplying the minimum fine of three hundred dollars by the number of years of the sentence by the number of felony counts of which the defendant was convicted. Additionally, former section 1202.4 subdivision (d) provided the court shall consider relevant factors such as the defendant's inability to pay, the seriousness of the offense, and the psychological harm caused by the crime, when setting the amount of restitution in excess of the amount recommended in former section 1202.4 subdivision (b). However, the court need not state the express reasons for its decision to impose the restitution award. (Former § 1202.4, subd. (d)).
Here, even if we were to find trial counsel erred in not objecting to the imposition of the fine, we conclude there was no resulting prejudice because the fine the trial court imposed was not an abuse of its broad discretion under former section 1202.4. (See Strickland, supra, 466 U.S. at pp. 687-688; Apprendi v. New Jersey (2000) 530 U.S. 466, 481 ["We have often noted that judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case."].)
The record clearly shows the court read and considered the probation and supplemental probation reports, the latter of which recommended a sentence of 12 years, or three years longer than the sentence actually imposed by the court. Although the recommended fine under section 1202.4 subdivision (b)(2) for a total sentence of nine years was $8,100, the court set forth sufficient reasons in exercising its discretion for imposing the greater amount of $10,000, within the statutory limits. The court noted the serious nature of the offenses and their impact on the victims, which left them shaken. In sum, Reese's counsel's failure to object to the fine was not prejudicial.
The $300 minimum restitution fine, multiplied by the nine-year sentence, multiplied by the three felony counts. --------
III
While defendant's appeal was pending in this court, he made a request to file a supplemental brief, which this court granted by order dated October 11, 2018. Respondent in response also filed a supplemental brief, as allowed under the October 11 order.
Defendant claims Senate Bill No. 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 when Senate Bill No. 1393 becomes effective on January 1, 2019.
The case of People v. Garcia (2018) ___ Cal.App.5th___, 2018 WL 5668807 (Garcia) informs our decision on this issue. After the court filed its original opinion in early October 2018, the defendant in Garcia petitioned for rehearing claiming that under Senate Bill No. 1393, the matter should be remanded for resentencing, so the trial court could exercise its discretion to dismiss or strike the five-year consecutive term that was imposed based on his prior serious felony. (§ 667, subd. (a)(1).) The court in Garcia granted the petition and modified its opinion to "remand the matter for resentencing pursuant to S.B. 1393 after January 1, 2019, the date S.B. 1393 becomes effective." (Garcia, at p. *6.)
The Garcia court noted that "[w]hen an amendatory statute either lessens the punishment for a crime or, as S.B. 1393 does, ' "vests in the trial court discretion to impose either the same penalty as under the former law or a lesser penalty," ' it is reasonable for courts to infer, absent evidence to the contrary and as a matter of statutory construction, that the Legislature intended the amendatory statute to retroactively apply to the fullest extent constitutionally permissible—that is, to all cases not final when the statute becomes effective. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307-308 & fn. 5; People v. Francis (1969) 71 Cal.2d. 66, 76 [(Francis)] ['[T]here is such an inference because the Legislature has determined that the former penalty provisions may have been too severe in some cases and that the sentencing judge should be given wider latitude in tailoring the sentence to fit the particular circumstances.']; In re Estrada (1965) 63 Cal.2d 740, 744-745 [absent evidence of contrary legislative intent, 'it is an inevitable inference' that the Legislature intends ameliorative criminal statutes to apply to all cases not final when the statutes become effective]; People v. Arredondo (2018) 21 Cal.App.5th 493, 506-507 ['Retrospective application of a new penal statute is an exception to the general rule set forth in section 3, which bars retroactive application of new Penal Code statutes unless the Legislature has expressly provided for such application.'].)
"In enacting S.B. 1393, the Legislature did not expressly declare that S.B. 1393, or the amendments it makes to sections 667(a) and 1385(b), will apply retroactively to all judgments of conviction which are not final on January 1, 2019, when S.B. 1393's amendments to sections 667 and 1385 go into effect. (People v. Arredondo, supra, 21 Cal.App.5th at pp. 509-512 (conc. opn. of Benke, J.) ['When . . . a criminal defendant argues he or she is entitled to the benefit of new legislation, we must begin with the . . . presumption, expressly set forth in section 3, that unless there is express language to the contrary, statutes are prospective only.'].) But the Legislature also did not expressly declare or in any way indicate that it did not intend S.B. 1393 to apply retroactively, and S.B. 1393 is ameliorative legislation which vests trial courts with discretion, which they formerly did not have, to dismiss or strike a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.)
"Thus, under the Estrada rule, as applied in Lara and Francis, it is appropriate to infer, as a matter of statutory construction, that the Legislature intended S.B. 1393 to apply to all cases to which it could constitutionally be applied, that is, to all cases not yet final when S.B. 1393 becomes effective on January 1, 2019. (People v. Superior Court (Lara), supra, 4 Cal.5th at pp. 307-308 & fn. 5; In re Estrada, supra, 63 Cal.2d at pp. 744-745 ['If the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then, in our opinion, it, and not the old statute in effect when the prohibited act was committed, applies.']; People v. Conley (2016) 63 Cal.4th 646, 657 ['The Estrada rule rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.'].)
"The People concede that if defendant's judgment of conviction is not final on January 1, 2019, then S.B. 1393 will apply retroactively to defendant's judgment. They argue, however, that defendant's judgment 'should be final' by January 1, 2019, and in any event, defendant's S.B. 1393 claim is not 'ripe for adjudication' or justiciable, and should be left for a future forum, because his judgment 'should' be final by January 1, 2019. (People v. Ybarra (1988) 206 Cal.App.3d 546, 550 [matters not ripe for adjudication should ordinarily be left to a future forum].)
"We believe it is highly unlikely that defendant's judgment will be final by January 1, 2019, because he would have to exhaust all of his appeal rights by that date, even if we did not remand the matter for resentencing after January 1, 2019, pursuant to S.B. 1393. ' "[F]or the purpose of determining the retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed." ' (People v. Vieira (2005) 35 Cal.4th 264, 305-306.) Because it is highly unlikely that defendant's judgment will in any event be final by January 1, 2019, we remand the matter to the trial court for resentencing pursuant to S.B. 1393, after January 1, 2019." (Garcia, supra, ___ Cal.App.5th at p. ___, 2018 WL 5668807, at pp. *6-7, fn. omitted.)
We agree with the reasoning and conclusion of the Garcia court. Because in our view the resentencing of defendant will not be "futile" (Garcia, supra, ___ Cal.App.5th at p. ___, 2018 WL 5668807, at p. *7, fn. 3), particularly because at the time of sentencing defendant was 63 years old, we remand the matter for resentencing of defendant pursuant to Senate Bill No. 1393, which resentencing shall take place after January 1, 2019, in order to ensure the matter is ripe.
DISPOSITION
The matter is remanded with directions to resentence defendant after January 1, 2019, pursuant to sections 667, subdivision (a) and 1385, subdivision (b), as amended by Senate Bill No. 1393, effective January 1, 2019. If the court reduces defendant's sentence, the court in its discretion may also exercise its discretion and reduce the restitution defendant must pay pursuant to former section 1202.4. (See fn. 4, ante.) In all other respects, the judgment is affirmed.
BENKE, Acting P. J. WE CONCUR: DATO, J. GUERRERO, J.