Error and/or relief
The judgment is affirmed as to all verdicts and findings made at trial, but the sentence is vacated and the cause is remanded for a new sentencing hearing. The defendant’s attorney’s assistance was ineffective by counsel’s failure to argue a statutory mitigatory factor at the sentencing hearing.
First Holding:
When an enhancement is pleaded and proven, the sentencing court is ordinarily presented with a binary choice: impose the additional punishment or strike/dismiss the enhancement.
Section 1385(c) provides, in pertinent part, that notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.
In exercising that discretion, section 1385 lays out nine factors in mitigation for the court to consider and afford great weight to. Proof of one or more of the listed circumstances weighs greatly in favor of dismissing the enhancement, in the absence of a finding that dismissal would endanger public safety.
One of the listed circumstances (1385(c)(2)(B)) is “Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed.” Rules of Court, rule 4.423(b)(1) mirrors that mitigation factor.
Authority:
PEN 1385(c)
People v. Lopez (2004) 119 Cal.App.4th 355, 364
Second Holding:
If the sentencing court does not conclude that dismissal would endanger public safety, then mitigating circumstances strongly favor dismissing the enhancement. This means that, absent a danger to public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.
Authority:
People v. Walker (2024) 16 Cal.5th 1024, 1036
Third Holding:
A defense attorney who fails to adequately understand the available sentencing alternatives, promote their proper application, or pursue the most advantageous disposition for his client may be found incompetent.
Authority:
People v. Scott (1994) 9 Cal.4th 331, 350
Fourth Holding:
To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient performance was prejudicial.
Reviewing courts must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight.
Because the presumption of counsel’s competence can typically be rebutted only with evidence outside the record, ineffective assistance claims are normally raised in habeas corpus proceedings where such evidence can be presented. Defendants who present IAC claims on direct appeal bear a heavy burden. If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, the claim must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation.
Put differently, where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.
Authority:
People v. Scott (1997) 15 Cal.4th 1188, 1211
Strickland v. Washington (1984) 466 U.S. 668, 687–688, 691–692
In re Scott (2003) 29 Cal.4th 783, 811–812
People v. Arce (2014) 226 Cal.App.4th 924, 930
People v. Garcia (2022) 76 Cal.App.5th 887, 900
People v. Carter (2005) 36 Cal.4th 1114, 1189
People v. Weaver (2001) 26 Cal.4th 876, 926
Fifth Holding:
Defendant’s trial counsel did not file any sentencing memoranda. Assuming counsel was aware of the relevant sentencing laws concerning multiple enhancements, counsel nevertheless failed to promote their proper application and pursue the most advantageous disposition for his client. Counsel also failed to object to the erroneous contention in the probation report, and in the prosecutor’s argument at sentencing, that there were no mitigating circumstances. There is no conceivable strategic or tactical explanation for counsel’s omissions.
Authority:
People v. Scott (1994) 9 Cal.4th 331, 351
Sixth Holding:
When a stay of punishment is required under section 654, a trial court has discretion to choose which count will serve as the principal term without regard to the longest potential term of imprisonment. Here, the court stated its intention to use count 1 as the principal term before defense counsel presented his arguments at the sentencing hearing. The attorney was thus aware defendant’s prison term would be based on the offense that included two enhancement findings.
We are unable to conceive of a rational, tactical reason for counsel’s failure to request the dismissal of at least one enhancement pursuant to section 1385(c)(2)(B).
Authority:
People v. Caparaz (2022) 80 Cal.App.5th 669, 688, citing sec. 654(a), as amended by AB 518 (2021–2022 Reg. Sess.)
Seventh Holding:
Counsel alluded to the defendant’s childhood trauma, but only in a passing reference to the diagnosis mentioned in the probation report. He made no effort to link that potential mitigating circumstance to the offense. As made plain by the statutory text, the mere fact a defendant has suffered past trauma is insufficient—such trauma must be a contributing factor in the commission of the offense for the low term presumption to apply.
Authority:
People v. Knowles (2024) 105 Cal.App.5th 757, 765
Eighth Holding:
In the context of appellate representation, where appellate counsel fails to raise a significant and obvious issue, the failure will generally be considered deficient performance under Strickland if the missed issue is clearly stronger than those presented. Similar reasoning can be applied to the performance of defendant’s trial counsel at sentencing. Advocating for dismissal of an enhancement under section 1385(c)(2)(B) would have been an objectively stronger argument, by a wide margin, than the generalized request for leniency based on defendant’s educational achievements.
Authority:
In re Hampton (2020) 48 Cal.App.5th 463, 477
Ninth Holding:
Objections can be made during and even after the formal pronouncement of judgment. Once it became clear the court was imposing the middle term, defense counsel had nothing to lose by pointing out the applicability of section 1385(c)(2)(B). At the very least, doing so would have preserved the issue for appellate review.
Failure to present any objections or argument regarding section 1385 fell below the minimum standards of performance required of a defense attorney.
Authority:
People v. Gonzalez (2003) 31 Cal.4th 745, 755
People v. Steele (2000) 83 Cal.App.4th 212, 226 [finding forfeiture where defendant did not object either before or after pronouncement of sentence, despite the opportunity to do so]
Tenth Holding:
Prejudice flowing from ineffective assistance is established by showing there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The burden requires more than speculation as to the effect of the errors or omissions of counsel. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
Authority:
Strickland v. Washington (1984) 466 U.S. 668, 694
People v. Williams (1988) 44 Cal.3d 883, 937