Error and/or relief
A remand for resentencing is required because the defendant received ineffective assistance of counsel by reason of defense counsel’s failure to raise his mental health issues as a mitigating factor at the time of sentencing, despite there having been considerable evidence introduced during pretrial proceedings that the defendant had mental health issues, including a finding under section 1372 that he was incompetent to stand trial, whereupon he was committed to a state hospital until his competency was deemed restored three months later.
First Holding:
Defense counsel should have pointed out that there was evidence suggesting that, at least at the time of the offense, he was struggling with mental health issues. Under rule 4.423, mental illness is a mitigating factor at sentencing. Section 1385(c)(5) defines mental illness as a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders.
That subdivision further provides that a court may conclude that a defendant’s mental illness was connected to the offense if, after reviewing any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense, the court concludes that the defendant’s mental illness substantially contributed to the defendant’s involvement in the commission of the offense.
The Diagnostic and Statistical Manual of Mental Disorders (5th ed. text rev. 2022) defines an overarching new category of substance use disorders—with the specific substance used defining the specific disorders. It states that the essential feature of a substance use disorder is a cluster of cognitive, behavioral, and physiological symptoms indicating that the individual continues using the substance despite significant substance-related problems.
Authority:
Rules of Court, rule 4.423
PEN 1385(c)(5)
Second Holding:
Despite considerable evidence, defense counsel remained silent at the sentencing hearing when the trial court remarked that no mitigating circumstances had been presented.
To demonstrate ineffective assistance of counsel, the defendant must show counsel’s performance was deficient and resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.
We can conceive of no reasonable tactical purpose for defense counsel’s failure to argue rule 4.423(b)(2) and (b)(4) applied in this case. We further conclude defense counsel’s omission was prejudicial. For the trial court to impose the upper term the court was required to find that there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term.
Had defense counsel raised the applicability of rule 4.423(b)(2) and (b)(4), there is a reasonable probability the court would have balanced the mitigating factors against those in aggravation and would not have imposed the upper term.
Authority:
People v. Mai (2013) 57 Cal.4th 986, 1009
People v. Centeno (2014) 60 Cal.4th 659, 675–676 [where there was no conceivable reasonable tactical purpose for defense counsel’s omission, defense counsel’s failure to object to prosecutorial misconduct was ineffective]
Third Holding:
Defense counsel inexplicably made no arguments regarding any mitigating factors” when arguing the Romero motion to strike his prior convictions. On remand, the defendant is free to make the arguments he believes counsel should have made.
Authority:
People v. Superior Court (Romero) (1996) 13 Cal.4th 497
People v. Dryden (2021) 60 Cal.App.5th 1007, 1029 [both aggravating and mitigating circumstances are relevant considerations in determining whether to strike a prior strike conviction]
People v. Jones (2022) 79 Cal.App.5th 37, 46 [on remand for resentencing, full resentencing is appropriate]
People v. Ramirez (2019) 35 Cal.App.5th 55, 64 [When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme]