People v. Starling CA1/4 ( 2022 )

Filed 8/29/22 P. v. Starling CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A164375
v.
ROBERT STARLING, (Sonoma County
Super. Ct. No. SCR 5681391)
Defendant and Appellant.
Defendant Robert Starling appeals an order denying his petition for
resentencing under Penal Code section 1170.91.1 We find no error and
accordingly, we shall affirm.
Background
In April 2010, defendant was found guilty of four robberies (§ 211); two
counts of conspiracy to commit robbery (§ 182, subd. (a)(1)); two counts of
making false reports to police (§ 148.5, subd. (a)); one count of unlawfully
wearing a mask (§ 185); and one count of intimidating a witness (§ 136.1,
subd. (a)(1)). The jury also found true the allegation that defendant
personally used a firearm during the commission of the robberies, within the
meaning of section 12022.53, subdivision (b), and that he was armed with a
firearm during the conspiracies, within the meaning of section 12022,
1 All statutory references are to the Penal Code unless otherwise noted.
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subdivision (a)(1). (People v. Starling (A129084, July 7, 2011) [non.pub.
opn.].)
The evidence at trial established that between September 2007 and
May 2009, defendant, who had previously worked for an armored truck
company, robbed four armored truck guards and conspired to rob other
armored truck guards. According to the California Department of Corrections
and Rehabilitations (C.D.C.R.), “During these robberies, Starling approached
the guards as they were transporting bags of cash from the businesses back
to the armored trucks, and ordered them to the ground at gunpoint. Starling
would take the bags of cash and flee the scene. He and his co-defendant
conducted surveillance on other locations with the intent on robbing the
transport guards.” Defendant was sentenced to a total term of 30 years four
months in prison.2
On August 25, 2021, defendant filed a petition for resentencing under
section 1170.91. In conjunction with his section 1170.91 petition, defendant
submitted documentation showing that he had been in the United States
Army for about six years and that he suffers from post traumatic stress
disorder (PTSD), which is “more likely than not . . . related to his reported
trauma event experienced in Korea.” A hearing was scheduled and counsel
was appointed for defendant.
At the hearing, defendant testified that he served in the United States
Army from December 28, 1993 through January 26, 2000. From April 1998
through April 1999, he was stationed in South Korea. In South Korea,
defendant was stationed “up on the border” with North Korea. “[I]t was a
2In February 2019, the court received but declined to act on a letter
from the C.D.C.R. recommending resentencing under section 1170,
subdivision (d).
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very intense hostile place.” He “developed serious difficulty sleeping” which
necessitated “taking a great deal of medication to try to go to sleep.” He also
suffered from “regular depression” and anxiety while in Korea. He testified
that, prior to his service in South Korea, he had not suffered from any
untreated, undiagnosed mental health issues. Since his service, defendant
has continued to struggle with depression and anxiety. He also testified about
his divorces, post-military service employment difficulties, and his
imprisonment and how those problems affected him. Defendant has been
prescribed antidepressants since being in prison. Defendant attributed his
current PTSD symptoms to his military service.
The trial court denied the petition, finding that while defendant had
established eligibility for recall by showing that he may have a current
qualifying condition that may be the result of military service, he was not
suitable for resentencing. The court found that the link between defendant’s
current PTSD symptoms and his military service was tenuous, as was “[a]ny
causal connection between any military related PTSD and the commitment
offenses.” The court noted the following additional factors that weighed
against resentencing: Defendant’s offenses were committed over two years
and showed a high degree of planning and sophistication. They were serious,
violent, and placed numerous innocent persons in danger. Defendant tried to
convince others to join his criminal enterprise and then threatened those
individuals to stay quiet. Defendant did not take responsibility for his
conduct at trial and falsely testified under oath. Defendant is a dangerous
person capable of inflicting great bodily injury or death on individuals.
Defendant exhibited no credible remorse. He took advantage of his former
police training and took advantage of his training in armored car deliveries to
commit the offenses. Defendant breached the trust of his former coworkers.
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Defendant timely filed a notice of appeal.
Discussion
In 2014, the Legislature enacted former section 1170.91 (now identified
as section 1170.91, subdivision (a)) (Stats. 2014, ch. 163, § 2), “which
mandate[s] consideration of trauma resulting from military service as a
mitigating factor when a court exercises determinate sentencing triad
discretion. ” (People v. Brooks (2020) 58 Cal.App.5th 1099, 1103–1104.)
In 2018, the Legislature amended section 1170.91 (Stats. 2018, ch. 523,
§ 1) “to add a retroactivity clause and a procedure for resentencing.” (Brooks,
supra, 58 Cal.App.5th at p. 1104.) As relevant here, section 1170.91,
subdivision (b) “allows a person currently serving a prison sentence for a
felony conviction, ‘whether by trial or plea,’ to petition for a recall of his
sentence provided he meets the following initial requirements: (1) he is or
was a member of the United States military, and (2) he ‘may be suffering
from . . . post-traumatic stress disorder, . . . as a result of [such] military
service.’ ” (Brooks, supra, at p. 1104.)
“A section 1170.91, subdivision (b) petitioner must allege: ‘(A) [t]he
circumstance of suffering from . . . post-traumatic stress disorder . . . as a
result of the person's military service was not considered as a factor in
mitigation at the time of sentencing,’ and ‘(B) [t]he person was sentenced
prior to January 1, 2015.’ [Citation.] Provided that the petition so alleges, the
sentencing judge or in his or her absence an assigned judge of the sentencing
court ‘shall determine, at a public hearing’ held upon proper notice, whether
the petitioner satisfies the requisite criteria.” (Brooks, supra, 58 Cal.App.5th
at p. 1104, citing § 1170.91, subd. (b).) If those criteria are met, the petitioner
may be resentenced, in the court’s discretion, with trauma resulting from
military service taken into account as a mitigating factor. (Ibid.)
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A. Judicial Bias
At defendant’s 2010 sentencing hearing on his robbery convictions, the
trial court stated that it found defendant’s trial testimony “incredulous,”
described defendant as “manipulative and narcissistic” and noted that
defendant’s credibility “has been totally destroyed with the court.” Eleven
years later, the same judge presided over defendant’s section 1170.91 hearing
and ultimately denied the petition, finding that the aggravating factors
pertaining to the offenses justified the sentence imposed.
Defendant contends the order denying his petition must be reversed
because the trial court improperly prejudged his credibility. The Attorney
General contends that defendant forfeited his judicial bias claim by failing to
raise it in the trial court and that, in any event, his claim lacks merit.
We agree that the claim has been forfeited. Defendant concedes that he
failed to allege judicial bias in the superior court. (People v. Seumanu (2015)
61 Cal.4th 1293, 1320 [“As a general rule, a specific and timely objection to
judicial misconduct is required to preserve the claim for appellate review.”].)
Defendant was aware of the court’s prior credibility findings, having
addressed them directly in a letter to the court in 2019.3 He had an obligation
to raise any concerns he had regarding bias at the “earliest practicable
opportunity.” (People v. Guerra (2006) 37 Cal.4th 1067, 1111, overruled on
another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.) Defendant’s
allegation that the bias in this case was so grossly unfair as to amount to a
violation of due process does not relieve him of the obligation to raise the
claim in the superior court. (People v. Samuels (2005) 36 Cal.4th 96, 114
3In the 2019 letter, defendant acknowledges, “I lied during my
testimony” and states, “I understand that I destroyed my credibility with you
and the court. The memory of you calling my testimony ‘incredulous’ at my
sentencing hearing has always stayed with me.”
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[“Failure to raise the issue of judicial conduct at trial waives claims of
statutory or constitutional error.”].)
In any event, as the Attorney General notes, there is no evidence of
likely bias, let alone “extreme” bias as defendant suggests. A defendant who
alleges his due process rights were violated by alleged judicial bias does not
need to prove actual bias, but must prove (under an objective standard) that
the probability of bias on the part of the judge is so great that it is
“constitutionally intolerable.” (People v. Freeman (2010) 47 Cal.4th 993,
1001.) “Mere expressions of opinion, based on observation of the witnesses
and evidence, do not demonstrate judicial bias.” (Schmidt v. Superior Court
(2020) 44 Cal.App.5th 570, 589, 591 [“The trial court’s credibility
determinations did not show bias.”].) The trial court’s statement regarding
defendant’s lack of credibility was a reasonable assessment of defendant’s
testimony at trial and was confirmed by defendant’s subsequent admission
that he lied during his trial testimony. Moreover, as is typical at most
resentencing hearings, section 1170.91, subdivision (b)(2) expressly directs
that the sentencing judge determine the petition if available. (See Peracchi v.
Superior Court. (2003) 30 Cal.4th 1245, 1254 [“Because of the significance of
the trial record and the court's observations at trial, the usual procedure is
for the person who served as the trial judge to preside at the sentencing
hearing, and this procedure generally is followed in the situation where
resentencing is to occur following remand.”].) “The trial court is considered to
be in the best position to conduct the resentencing hearing. The preference
for a judge who is well informed about the case serves the interests of both
parties, and an alternative practice would impose heavy burdens on scarce
judicial resources.” (Ibid.) Nothing in the record suggests the court was
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unwilling or unable to properly weigh defendant’s credibility at the time of
the hearing on his resentencing petition.
B. Abuse of Discretion
Defendant contends the trial court abused its discretion in denying his
petition for resentencing. He argues that (1) the trial court’s finding that the
links between defendant’s PTSD and his military service is tenuous is not
supported by the evidence; (2) the court improperly required that there be a
“causal connection” between the PTSD and the commitment offenses; (3) the
court improperly relied on the fact that he did not mention his PTSD or his
mental health to the probation officer in connection with the original
sentencing; (4) the trial court’s finding that he exhibited no credible remorse
for his conduct is not supported by the record; (5) the trial court failed to
consider post-sentencing mitigating factors demonstrating his rehabilitation;
and (6) the sentence imposed remains excessive given the above mitigating
factors. We disagree.
Contrary to defendant’s argument, the court did not require that
defendant establish a causal connection between defendant’s PTSD and the
commitment offenses. To the contrary, the court’s order expressly
acknowledges that section 1170.91 “does not require a showing that
petitioner actually had a qualifying condition at the time the commitment
offense was committed or that the qualifying condition had any causal
connection to the commitment offense. Instead, petitioner’s only burden is to
demonstrate that he may currently have a qualifying condition and that the
qualifying condition may be the result of petitioner’s military service.”
Consistent with the above, the court acknowledged that defendant’s PTSD
may be military related. The court concluded, however, that “the role that
[defendant’s] military service plays in his current PTSD (and his PTSD
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symptoms) is minor compared to other stressors that petitioner has
experienced after leaving the military, such as failed marriages, employment
difficulties, financial difficulties, and adapting to prison life (particularly as a
former law enforcement officer).” We understand the court to have reasoned
that to the extent that defendant was currently suffering from military-
related PTSD, that factor in mitigation was not particularly significant as
compared to his anxiety and depression caused by other stressors. The court’s
characterization of the connection between defendant’s current PTSD
symptoms and his military service as tenuous is consistent with the results of
the clinical examination performed by the Department of Veterans Affairs
which reads, “Based on review of records, results from the CAPS-5, and
clinical interview, veteran meets full criteria for a diagnosis of PTSD that
more likely than not is related to his reported trauma event experienced in
Korea. It appears that prior to his last failed marriage and financial
hardship, there were stressors related to his work environment that may
have likely aggravated his pre-existing avoidant behaviors that following
military services was minimal as evidenced by his ability to perform at his
job tasks and continue to maintain and/or increase rank.”
The court’s consideration of the absence of a “causal connection”
between defendant’s PTSD and the commitment offenses and his failure to
raise his mental health issues at his sentencing hearing in 2010 was not an
abuse of discretion. “The trial court's sentencing discretion must be exercised
in a manner that is not arbitrary and capricious, that is consistent with the
letter and spirit of the law, and that is based upon an ‘individualized
consideration of the offense, the offender, and the public interest.’ ” (People v.
Sandoval (2007) 41 Cal.4th 825, 847.) How defendant’s PTSD impacted his
commission of the offenses, if at all, is a relevant factor and properly
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considered by the court. To the extent the court considered defendant’s
failure to raise “any mental health issue to the probation officer during the
2010 presentence interview,” it did so in support of its conclusion that
defendant “did not believe that mental health issues played any significant
role in the reason petitioner committed the offenses between 2007 and 2009.”
The court did not, as defendant suggests, independently rely on “on the fact
that appellant did not mention his PTSD or his mental health to the
probation officer in connection with the original sentencing as a reason for
denying the petition.” (Italics added.)
Contrary to defendant’s argument, the court did not fail to consider
defendant’s post-sentencing statement of contrition and his purported “great
strides in rehabilitation and in becoming a productive member of society.” In
support of his argument, defendant cites the letter and evaluation report
submitted in 2019 by the C.D.C.R. recommending resentencing under section
1170, subdivision (d). The report indicates that defendant has had no
disciplinary actions filed against him while in custody and lists his
participation in several self-help activities. The report also includes
defendant’s letter to the court, in which he states that he is “ashamed” of his
past actions and his failure to take responsibility for the crimes he
committed. The court directly addressed the C.D.C.R.’s letter and related
evidence in the order denying the section 1170.91 petition: “The court notes
that the C.D.C.R. previously recommended a . . . section 1170(d) recall.
However, this court does not believe that recommendation necessarily weighs
in favor of a . . . section 1170.91 recall since the C.D.C.R. has its own
motivations and reasons for recommending a . . . section 1170(d) recall.
Furthermore, this court declined to recall the sentence upon the C.D.C.R.’s
recall recommendation.” Although the court did not expressly so state, the
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reasonable conclusion drawn from the court’s order is that the court
determined that defendant’s post-sentence progress did not outweigh the
aggravating factors identified by the court.
Finally, in reviewing the denial of a section 1170.91 petition, this court
has no occasion to consider whether the previously imposed sentence is
excessive.
Disposition
The order denying the petition for resentencing under Penal Code
section 1170.91 is affirmed.
POLLAK, P. J.
WE CONCUR:
BROWN, J.
GOLDMAN, J.
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