People v. Ayala CA2/1 ( 2021 )

Filed 4/8/21 P. v. Ayala CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B304033
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA470114)
v.
JAMAINE MARTELL AYALA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Michael D. Abzug, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Eric E. Reynolds, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Chung L. Mar, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________________
Jamaine Martell Ayala appeals from a judgment entered
after a jury found him guilty of corporal injury upon a spouse,
criminal threats, and felony vandalism. The jury also found true
the special allegation that he personally used a firearm in the
commission of the criminal threats. The trial court sentenced
him to six years in prison. He contends the trial court abused its
discretion in declining to sentence him to probation due to his
posttraumatic stress disorder (PTSD) stemming from his service
in the United States military, as provided in Penal Code section
1170.9.1 He also contends the trial court abused its discretion in
imposing an upper term sentence, without considering his
service-related PTSD as required under section 1170.91. We
reject the first contention. As to the second, we remand the
matter for a new sentencing hearing because the record does not
demonstrate the trial court complied with its statutory
obligations under section 1170.91.
BACKGROUND
I. Prosecution Case
A. Evidence of charged offenses
Ayala and his wife Rose married in February 2016. At the
time of the charged incident in June 2018, they lived in a rented,
two-bedroom apartment in Los Angeles, and Rose was seven
months pregnant with their first and only child. When Rose
testified at trial, she explained that she and Ayala (who was out
of custody on bail), were legally separated.
On June 17, 2018, the date of the charged offenses, Ayala
and Rose argued when she confronted him with evidence of his
infidelity as he lay in bed, using his cell phone. Rose recorded
1 Further statutory references are to the Penal Code.
2
audio of the argument on her cell phone because she believed
Ayala would admit the infidelity and she could play the audio at
their next couple’s counseling session. According to Rose’s
testimony, Ayala did not know Rose was recording the incident.
The prosecution played the audio for the jury during Rose’s
testimony and provided transcripts of the audio for the jury’s
review.2 The audio captured the words spoken during the
argument and the sounds of the altercation (e.g., punches to the
wall, glass breaking, and thuds), as described below.
During the argument, Ayala got out of bed and punched
two holes in a bedroom wall. Using profanity, he yelled at Rose
and told her he hated her multiple times. Ayala, who was six feet
six inches tall and weighed around 240 pounds, lifted Rose off the
ground by placing his arms underneath her shoulders and
“slammed [her] down on the floor,” according to Rose’s
testimony.3 She landed on her buttocks, in a seated position,
hitting a large box containing an unbuilt crib, which pressed into
her ribs. Ayala grabbed her by her hair and dragged her a couple
feet. He let her go and left the room.
As Ayala walked to the other bedroom, he broke items in
the kitchen (e.g., fruit bowls) and some of Rose’s glass bottles of
perfume in the bathroom. Rose followed him, and they continued
2 In his opening appellate brief, Ayala contended the trial
erred in admitting into evidence the audio recording of the
altercation. After reviewing the Attorney General’s respondent’s
brief, and the authorities cited therein, Ayala expressly
abandoned this contention in his appellate reply brief, conceding
there was no error.
Rose was five feet five inches tall and seven months
3
pregnant.
3
to argue, with him repeating multiple times that he hated her.
He told her to “[g]et up out of [his] face,” as reflected on the audio
recording. Then, he threatened to punch her in the face.
Ayala began packing his belongings to leave the apartment.
He grabbed his semiautomatic firearm from a bedroom closet.
Rose testified that Ayala kept the gun loaded with the safety off,
so he was ready to fire at an intruder. As they continued to
argue, and as Ayala was holding the gun, he said, “I’m going to
shoot you in the fucking face,” as reflected on the audio recording.
According to Rose’s testimony, Ayala was standing less than 10
feet away from her, facing her, and pointing the gun toward the
floor at a 45-degree angle. Rose asked him to put down the gun.
He told her multiple times to get out of his face. He placed the
gun on the counter where he was gathering his belongings, as he
packed. Rose asked him why he had the gun, and he replied,
“Shoot you if you don’t get the fuck away from me,” as reflected
on the audio recording. Rose was scared because of Ayala’s
temper and his “experience” in the military.
After she stopped recording the incident, Rose left the
apartment. The same day, she went to a police station and
reported the incident, and an officer took photos of her injuries.
Her injuries included bruises on her arm, swelling around her
ribs, broken capillaries on her chest, and pain all over her body.
She also developed hemorrhoids and sciatica which she
attributed to Ayala slamming her down on her buttocks. The
prosecutor showed the jury photos that Rose took of her bruised
arm and broken capillaries and a photo the officer took of her
bruised arm.4
4 The officer testified at trial.
4
Rose did not have contact with Ayala for the remainder of
her pregnancy. In October 2018, after their son was born, she
met with him so he could meet his child and they could sign
documents to finalize their separation. She was not scared on
that occasion because Ayala “was really sweet” to her.
Thereafter, he asked her to have the charges against him
dropped and move with their son to Miami where he was living.
She considered talking to the detective about dropping the
charges, and she told Ayala she was considering it. But
sometime later, during another phone call, Ayala became angry
and snapped at her, and she decided to participate in this case.
B. Evidence of uncharged domestic violence
Rose testified about an uncharged incident of domestic
violence with Ayala that occurred just after they were married in
2016, when they were living in Florida. She confronted him
about his infidelity. They argued. He threw her onto the ground,
causing bruising on her legs and stomach. The prosecutor
showed the jury photos of bruising on Rose’s legs and stomach
that Rose testified was caused during this incident.
As Rose and Ayala continued to argue after Ayala threw
her to the ground during this uncharged incident, Rose showed
Ayala messages on her iPad evidencing his infidelity. He
grabbed the iPad from her hands and threw it out the window
and over the balcony. According to Rose’s testimony, Ayala gave
her a look, which scared her, so she punched him in the lip,
causing bruising and swelling on his lip. The prosecutor showed
the jury a photo of Ayala’s swollen lip that Rose testified resulted
from her punching him during this uncharged incident.
5
II. Defense Case
Appellant testified in his defense. He stated the June 17,
2018 incident began when Rose came into the bedroom where he
was sleeping and started hitting him and accusing him of
infidelity. He went to the other bedroom, and Rose left the
apartment. When she returned to the apartment, she woke him
up again by slapping him. She continued to accuse him of
infidelity as she sat on the bed where he was lying, pushing him
multiple times with her hand.
Ayala stated he got out of bed and “hit the wall twice out of
frustration,” causing holes in the wall. Rose stood in front of him
and tried to stop him from walking out of the bedroom. He
pushed her to the side and went to the other bedroom to pack his
belongings. When he returned, Rose was sitting on the floor,
crying. He denied he picked her up and slammed her to the
ground. He stated he grabbed her by her arms to help her up to
her feet. He then referenced the audio recording and testified
that when Rose was saying “stop” and “get off me,” it was because
she did not want him to touch her or help her up. He denied he
pulled her hair. He again left the room and went back to packing
his belongings.
Ayala admitted during his testimony that he broke some of
Rose’s perfume bottles “[o]ut of frustration.” He also admitted he
threatened to shoot her in the face, but he stated it was just “an
expression” and “an empty threat” he made because he was
“frustrated” and “angry,” and it was the “[f]irst thing that came to
mind.” He denied he was holding the gun when he threatened to
shoot her; he stated he had already put it on the counter. He also
denied the gun was loaded. He stated he was taught in the
military “to not have a fully loaded automatic weapon in the
6
home off safety. Because if that weapon is to fall, it will fire no
matter what.” He reiterated that he was frustrated, stating that
Rose was following him around the apartment, putting her hands
in his face, and accusing him of infidelity. He also denied that he
wanted to punch Rose in the face at the time he threatened to
punch her in the face, as reflected on the audio recording.
Regarding the 2016 uncharged incident of domestic
violence, Ayala denied he threw Rose down, but he admitted he
threw her iPad out the window and over their fifth floor balcony.
Rose punched him in the face. He stated he never became angry
during that incident, even after she punched him in the face.
During cross-examination, the prosecutor asked Ayala if
Rose was “making it up” when she asked him to put the gun
down, as reflected on the audio recording. Ayala responded:
“Yes. She made up a lot of things.”
III. Verdicts and Sentence
The jury found Ayala guilty of corporal injury upon a
spouse (§ 273.5, subd. (a)), criminal threats (§ 422, subd. (a)), and
felony vandalism with damage over $400 (§ 594, subd. (a)).5 The
jury also found true the special allegation that Ayala personally
used a firearm in the commission of the criminal threats.
(§ 12022.5, subd. (a).) The jury found Ayala not guilty of assault
with a firearm. (§ 245, subd. (b).)
The trial court sentenced Ayala to six years in prison: the
upper term of three years for criminal threats, plus the lower
term of three years for the firearm enhancement. The court
imposed concurrent terms for corporal injury upon a spouse and
5The prosecution presented evidence demonstrating that
the damage (holes in the walls and broken bottles of expensive
perfume) exceeded $400.
7
vandalism. We set forth in more detail below the parties’
arguments and the trial court’s findings and conclusions as to the
sentencing issues raised on appeal.
DISCUSSION
Ayala contends the trial court abused its discretion in
declining to sentence him to probation due to his PTSD stemming
from his service in the United States military, as provided in
section 1170.9. He also contends the trial court abused its
discretion in imposing an upper term sentence, without
considering his service-related PTSD as required under section
1170.91.
Section 1170.9 provides, in pertinent part:
“(a) In the case of any person convicted of a criminal
offense who could otherwise be sentenced to county jail or state
prison and who alleges that he or she committed the offense as a
result of . . . post-traumatic stress disorder . . . stemming from
service in the United States military, the court shall, prior to
sentencing, make a determination as to whether the defendant
was, or currently is, a member of the United States military and
whether the defendant may be suffering from . . . post-traumatic
stress disorder . . . as a result of his or her service. The court may
request, through existing resources, an assessment to aid in that
determination.
“(b)(1) If the court concludes that a defendant convicted of
a criminal offense is a person described in subdivision (a), and if
the defendant is otherwise eligible for probation, the court shall
consider the circumstances described in subdivision (a) as a factor
in favor of granting probation.
“(2) If the court places the defendant on probation, the
court may order the defendant into a local, state, federal, or
8
private nonprofit treatment program for a period not to exceed
that period which the defendant would have served in state
prison or county jail, provided the defendant agrees to participate
in the program and the court determines that an appropriate
treatment program exists.”
Section 1170.91, subdivision (a) provides, in pertinent part:
“If the court concludes that a defendant convicted of a felony
offense is, or was, a member of the United States military who
may be suffering from . . . post-traumatic stress disorder . . . as a
result of his or her military service, the court shall consider the
circumstance as a factor in mitigation when imposing a term
under subdivision (b) of Section 1170.” Under section 1170,
subdivision (b), “When a judgment of imprisonment is to be
imposed and the statute specifies three possible terms, the court
shall order imposition of the middle term, unless there are
circumstances in aggravation or mitigation of the crime.”
I. Proceedings Below
A. Sentencing memoranda
1. Prosecution’s sentencing memorandum
In its sentencing memorandum, filed September 3, 2019,
the prosecution stated that the trial court could impose a
maximum sentence of 14 years and eight months in prison for
Ayala’s offenses: the upper term of three years for the criminal
threats, plus the upper term of 10 years for the firearm
enhancement under section 12022.5, subdivision (a); a
consecutive term of one year (one-third the middle term) for the
corporal injury upon a spouse; and a consecutive term of eight
months (one-third the middle term) for felony vandalism. The
prosecution recommended the trial court instead sentence Ayala
to seven years and eight months in prison: the same sentence
9
outlined above, except the lower term of three years for the
firearm enhancement.
In urging the trial court to impose the upper term for the
criminal threats, the prosecution cited the following
circumstances in aggravation: (1) “The crime involved great
violence, great bodily harm, threat of great bodily harm, or other
acts disclosing a high degree of cruelty, viciousness, or
callousness” (Cal. Rules of Court, rule 4.421(a)(1));6 (2) “The
defendant was armed with or used a weapon at the time of the
commission of the crime” (rule 4.421(a)(2)); (3) “The victim was
particularly vulnerable” (rule 4.421 (a)(3)) in that Rose was seven
months pregnant when Ayala committed the offenses; and
(4) “The defendant has engaged in violent conduct that indicates
a serious danger to society” (rule 4.421(b)(1)). The prosecution
cited one circumstance in mitigation: Ayala’s minimal criminal
record. (Rule 4.423(b)(1).) As set forth in the probation report,
Ayala’s criminal history before the current offenses consisted of
two out-of-state convictions: driving under the influence of
alcohol in 2011 and driving while his license was suspended or
revoked in 2012.7
The prosecution attached to the sentencing memorandum a
letter from Rose, describing the continuing effects of the offenses
6Undesignated rule references are to the California Rules
of Court.
7 The probation officer recommended the trial court impose
an upper term sentence in this case, finding no circumstances in
mitigation and listing two circumstances in aggravation (the first
and third circumstances in aggravation the prosecution included
in its sentencing memorandum, as set forth above).
10
upon her, including anxiety, sciatica, and concerns for her safety
and the safety of her and Ayala’s son due to Ayala’s behavior.
2. Ayala’s sentencing memorandum
At the outset of his sentencing memorandum, filed
September 5, 2019, Ayala explained he suffers from PTSD that is
“70% connected to his [military] service,” as evidenced by service-
related documents he attached to the memorandum. Based
thereon, he requested the trial court place him on probation and
order treatment as provided in section 1170.9 (quoted above, in
pertinent part). He also cited rule 4.410(a)(8), which states that
one of the “[g]eneral objectives of sentencing” is “[i]ncreasing
public safety by reducing recidivism through community-based
corrections programs and evidence-based practices,” such as the
programs and practices offered through Veterans Court.
In listing circumstances in mitigation in his sentencing
memorandum, Ayala argued he is not a threat to society. He
pointed out that “[p]rotecting society” is another general objective
of sentencing, as set forth in rule 4.410(a)(1). He explained he
had not been charged with or convicted of a violent crime prior to
the current offenses. He described the charged incident in this
case as an “isolated incident.” He stated that during the prior
uncharged incident the prosecution presented in this case, Rose
“physically assaulted” him. He also noted he had been out of
custody on bail for over a year without incident, and there were
no new circumstances to indicate he would retaliate against Rose.
Ayala also asserted his military record demonstrates he “is
not a threat to public safety” and “speaks to his upstanding
character.” He described his military record as follows: “He has
been trusted and relied upon by some of the highest-ranking
members of the United States Army during his 5 years of service.
11
He enlisted at age 19, following in his parents’ footsteps as a
protector of the weak and vulnerable. He is a well-decorated
officer, having received the Global War on Terrorism
Expeditionary Medal and Service Medal, Army Good Conduct
Medal, Iraq Campaign Medal with Campaign Star, Driver and
Mechanic Badge w/ Driver-Wheeled Vehicles, National Defense
Service Medal, Army Commendation Medal, Army Achievement
Medal, and two Army Service Ribbons. He was also recognized
for his service in a Designated Imminent Danger Pay Area. He
was honorably discharged for medical reasons in 2012.” He
attached to his sentencing memorandum documents evidencing
his military achievements.
Ayala also listed in his sentencing memorandum other
circumstances in mitigation that he argued demonstrated he was
“on a path of self-improvement.” First, he “acknowledged the
severe impact his PTSD has had on his ability to grapple with
external stressors,” and he stated he was meeting with a
therapist two times per week to address the issue. Second, he
indicated he had “shown remorse for how his actions have
affected, and will affect, his baby boy.” He wanted “to be a
reliable father figure” for his son, and he explained his son was
his “motivation for leading a law-abiding life.” He pointed out
that another general objective of sentencing is “[e]ncouraging the
defendant to lead a law-abiding life in the future and deterring
him or her from future offenses.” (Rule 4.410(a)(3).) Third, he
informed the trial court he had recently enrolled in an online law
school program through Arizona State University. He attached
to his sentencing memorandum evidence of his enrollment.
Ayala also attached to his sentencing memorandum letters
attesting to his good character from a former girlfriend, a
12
military veteran with whom he was stationed in Iraq, two
friends, his cousin, his brother, and his uncle. He also included a
letter he had written to the trial court before the preliminary
hearing, describing his family’s service in the United States
Army (his and that of his mother, stepfather, and younger
brother), and denying he “hurt [Rose] in any way” during the
charged incident.
B. Ayala’s motion under section 1170.9
At a hearing on September 5, 2019, the trial court and the
parties agreed Ayala was statutorily eligible for probation. The
court continued sentencing to allow Ayala to present further
information regarding his PTSD diagnosis and its relation to his
commission of the current offenses. The court also allowed
Ayala’s mother to give a statement on Ayala’s behalf because she
was on active military duty and would be deployed overseas at
the time of the continued sentencing hearing. Ayala’s mother
stated a “federal doctor” had diagnosed Ayala with PTSD and
depression. She emphatically denied Ayala had ever “hit
anyone,” including Rose, but she admitted he would break and
hit “stuff.” She urged the court to grant probation, stating she
knew Ayala would not hurt Rose because he still loved her. She
also stated Ayala cared about his children and wanted to take
care of them.8
On December 16, 2019, after additional continuances of the
sentencing hearing for Ayala to obtain information about his
PTSD, Ayala filed a “Motion to Stay Custody in Lieu of
Treatment,” pursuant to section 1170.9. Therein he asserted he
8In addition to his child with Rose, Ayala had children
from other relationships.
13
committed the offenses in this case “as a result of his PTSD,
and/or other mental health problems, stemming from his service
on the front lines during the Iraq and Afghanistan war.” In
addition to the information he stated in his sentencing
memorandum regarding his military service, as summarized
above, he explained: “He was deployed to Iraq for 15 months as
part of Operation Iraqi Freedom war campaign, where he was in
constant imminent danger of serious harm or death. Mr. Ayala’s
job was to drive vehicles in war zones, carrying cargo and
soldiers. He also provided security for US installations and was
attached to an Army Ranger unit. Rangers are [a] highly trained,
rapid-response special forces combat group. [Citations.] Mr.
Ayala was later stationed at Guantanamo Bay, where he served
as a guard for incarcerated war criminals. [Citations.] He was
medically retired and honorably discharged in 2012 due to
trauma-related medical health and physical injuries, which he
incurred while on active duty in combat theatre. [Citation.]” In
support of these statements, Ayala cited to service-related
documents attached to his motion.
Ayala also described in his motion his history of PTSD,
citing to reports from psychological evaluations attached to the
motion, and explaining: “Mr. Ayala reported to his doctor in 2012
that he began experiencing symptoms [of] insomnia, anxiety,
depression and PTSD three years prior, in 2009, as a result of an
incident in Iraq, during which Mr. Ayala witnessed an enemy
explosive detonate near one of the vehicles in his caravan, badly
injuring his friend and killing other soldiers. [Citation.] Mr.
Ayala recalled having to pick up soldiers’ body parts after this
incident and having to clean the blood of soldiers whom he knew
off the vehicles. [Citation.] He witnessed multiple soldiers,
14
whom he knew, killed in action by IEDs, RPGs [rocket-propelled
grenade] and mortar blasts. [¶] Notably, Mr. Ayala had to be
constantly vigilant while doing his job as the driver of military
vehicles carrying soldiers and cargo in areas of combat.
Consequently, he reported noticing an exaggerated startle
response and increased hypervigilance in his civilian life,
especially while out in public and while driving, due to his
experience with Improvised Explosive Devices (IEDs).
[Citation.]” Ayala explained that his condition was initially
“diagnosed as insomnia,” so he did not receive treatment for
PTSD, and “his symptoms continued to worsen over time.” After
this case was filed, he “began attending PTSD combat vet groups
every two weeks” and “started seeing benefits from such
therapy.” He “now accepts full responsibility for his actions and
shows extreme remorse for breaking the law.” Pursuant to
section 1170.9, he requested the trial court order a specific
treatment program provided by the Department of Veterans
Affairs, as outlined in his motion.
Ayala attached to his motion, among other exhibits, a
report prepared after a December 5, 2019 psychological
evaluation arranged by his trial counsel. In the 11-page report,
the examiner, a clinical psychologist, concluded “it is probable
that [Ayala]’s behavior [in commission of the charged offenses] is
best explained by chronic, combat-related PTSD, rather than to a
[sic] reckless disregard for the welfare of others.” The examiner
also stated in the report: “It is determined based on this forensic,
medical-psychological examination [including a Trauma-Related
Guilt Inventory scale] that Mr. Ayala’s mood is particularly,
negatively affected by the emotional injury to the victim in this
15
case and as such, he experiences emotional guilt and remorse
related to this incident.”
C. Sentencing hearing
At the December 31, 2019 sentencing hearing, the trial
court stated it had “read and considered the entire file,” including
the probation report, the sentencing memoranda, the letter from
Rose, the letters attesting to Ayala’s good character, and the oral
statement from Ayala’s mother. Regarding Ayala’s “Motion to
Stay Custody in Lieu of Treatment,” the trial court stated:
“[W]ith respect to the filing by the defense under Penal Code
section 1170.9, the court makes the following determination as
required by statute. I find that the defendant was serving as a
member of the United States military, and I also find that the
defendant has suffered from a post-traumatic stress disorder as a
result of his service. [¶] The court recognizes its discretion to
request an assessment to aid in this determination. The court
makes a specific factual finding that the information presented
by the defense as well as the appropriate information available to
me at this juncture of the proceedings is adequate and that no
further inquiry is necessary to impose a fair and equitable
sentence.”
Next, Ayala made the following statement to the trial court:
“I’ve thought about this the last four months, Your Honor -- the
clerk and the court reporter, I just want to say that I’m deeply -- I
more than apologize. I’m truly sorry for the audio that we all had
to go through, which terrifying, is not my character -- it was
horrible. It was not of my character at all. I’ve apologized to
myself, and I definitely apologized to my wife -- I -- sorry.
“I did -- I joined the military at a young age, and both of my
parents are military, as you’ve seen, which have come [sic] many
16
times. I’ve never had to show remorse. It was just ‘yes, sir,’ ‘no,
sir.’ And so if, on the stand, [the prosecutor] or my lawyer, if I
didn’t show that remorse, I apologize because I know ‘yes’ or ‘no’
answers. I do apologize for everything that took place between
me and my wife, and it shouldn’t have happened in that setting
or even if public.
“I’m a man of my word. I joined the military. I have
multiple degrees. And I’ve served my community in both cities
very well. I help veterans get off the streets. I help them get
clothing and have a second chance at life. I had a bad day in
judgment, which had a bad turn for my life. I’m 31 years old. I
take care of all my kids financially. And I just want to have a
second chance to get back out there and show what I can do in
the community. I’m nowhere near a flight risk or a threat. I
showed up to your courtroom every time proper, Your Honor.
“I just had -- had bad -- a bad day that day, and I just want
to say I’m truly sorry for everything, Your Honor.”
Defense counsel added that “from the beginning” of his
representation of Ayala, he noticed Ayala “was struggling with
his [PTSD] to the point where he [Ayala] was denying it.”
Counsel stated: “I think it finally dawned on him – or it was
clear to him that he is suffering from [PTSD], and he is not
functioning as a normal person in society, once this was all said
and done and he was taken into custody and started going to
[PTSD] groups.” Counsel urged the trial court to order treatment
in lieu of incarceration, arguing “this is the perfect case for
[application of section] 1170.9.”
The prosecutor briefly summarized the facts of the charged
incident and argued “there is nothing demonstrated by [Ayala’s]
conduct that day that indicates that his actions had anything to
17
do with his [PTSD] or his prior service.” The prosecutor also
stated he believed a sentence of seven years and eight months
was appropriate given the aggravating factors set forth in the
prosecution’s sentencing memorandum and the probation report,
as summarized above.
In ruling on Ayala’s motion under section 1170.9, the trial
court stated it found “two very powerful and probably more
mitigating circumstances” in this case: (1) Ayala’s minimal
criminal record; and (2) the “statutory mandate that his military
service under the circumstances of this case be considered as a
factor against incarceration and favorable to probation.” The
court also commented on Ayala’s family and community support,
which the court characterized as “circumstantial evidence that
encourage[d] the court to feel that he may succeed on probation.”
Next, the trial court commented on factors it believed
weighed against granting probation in this case. The court noted
Rose was “an innocent victim of this crime [sic] who was seven
months pregnant, [and] terrorized and threatened with a
handgun.” The court also expressed concern about the
whereabouts of Ayala’s handgun, stating it was not satisfied with
Ayala’s representation that he sold the gun to a military man in
Florida, who later resold it.
The trial court also commented: “I’ve spent a considerable
amount of time with Mr. Ayala, both in pretrial proceedings,
[and] throughout trial. I’ve listened to his testimony. I’ve
watched how he responded to various conditions of his bail, and
the totality of his behavior is disturbing. He has said, really for
the first time, today[,] that he’s sorry, that he recognizes what he
did was wrong. But his behavior in this case, really almost from
start to finish, belies it, in my view.” The court also stated it did
18
not believe Ayala’s PTSD diagnosis “explain[ed] the totality of his
behavior”: “There’s something going on with him that’s more
than that that’s deeply troubling. That, in my view, has to be
considered along with what we owe him as a result of his military
service.”
The trial court declined to place Ayala on probation, finding
“there would not be a likelihood that [he] would succeed” on
probation. After “[b]alancing” the mitigating and aggravating
facts of the case, including Ayala’s service-related PTSD, the
court explained: “The court finds that the defendant has shown
no credible remorse in any way within the meaning of rule
4.414(b) in this connection [sic]. The court and jury listened
carefully to his explanation at trial as to how the victim’s injuries
occurred. The court finds it unconvincing, and apparently, the
jury did so as well. [¶] Since his conviction, he has not expressed
remorse or sympathy for the victim in any way that the court
finds credible. And as an independent and separate reason to
deny probation, as I mentioned before, the victim was pregnant
and vulnerable at the time of . . . the criminal threat and use of a
gun.”
In selecting the upper term of three years for the criminal
threats (the principal term), the trial court stated, in full: “The
court has considered mitigating facts relating to the defendant
and the crime as set out in rule 4.423(a) and (b) and 4.408. The
court has also considered the following aggravating facts relating
to the crime and the defendant. As set forth in rule 4.421, the
defendant’s convictions are of increasing seriousness, and the
defendant engaged in a violent conduct [sic] that involved a
threat of great bodily harm.”
19
The trial court expressly declined to strike the firearm
enhancement under section 12022.5, subdivision (a) because Rose
was “terrified and intimidated” and Ayala’s “threat to shoot her
in connection with ready access to a weapon which he has been
trained to use effectively is sufficient to justify the enhancement.”
The court imposed the low term of three years for the firearm
enhancement because “this is the first weapons offense that has
been committed by the defendant.”
The trial court rejected the prosecution’s recommendation
that the court impose consecutive terms for the corporal injury
upon a spouse and vandalism offenses. Instead, the court
imposed concurrent terms. Thus, Ayala’s sentence is six years in
state prison.
II. The Trial Court Did Not Abuse Its Discretion in
Declining to Sentence Ayala to Probation
As set forth above, section 1170.9 requires a trial court to
consider a defendant’s PTSD stemming from service in the
United States military as a factor in favor of granting probation.
(§ 1170.9, subds. (a) & (b).) We review a trial court’s sentencing
decision under section 1170.9 for abuse of discretion, “evaluating
whether the court exercised its discretion ‘in a manner that is not
arbitrary and capricious, that is consistent with the letter and
the spirit of the law, and that is based upon an “individualized
consideration of the offense, the offender, and the public
interest.” ’ ” (People v. Panozo (2021) 59 Cal.App.5th 825, ___
[274 Cal.Rptr.3d 59, 68].)
In this case, the trial court expressly found Ayala suffered
from PTSD stemming from his service in the United States
military, and the trial court expressly acknowledged that Ayala’s
service-related PTSD was a factor in favor of granting probation.
20
After weighing mitigating and aggravating circumstances,
including Ayala’s service-related PTSD, the trial court declined to
grant probation for reasons it explained on the record, as
summarized above. The trial court complied with section 1170.9
and did not abuse its discretion in declining to grant probation.
Ayala argues the trial court erroneously relied on lack of
remorse as an aggravating factor and, without this factor, the
circumstances “weighed in favor of probation and treatment
under section 1170.9.” In support of this argument he asserts:
(1) the trial court’s finding that he lacked remorse “is belied by
[his] statement at the sentencing hearing”; and (2) the “trial
court’s focus on [his] lack of remorse during the trial was
misplaced” because he “should not be punished for exercising his
right to testify on his own behalf.” We reject Ayala’s assertions.
The trial court did not find Ayala’s expression of remorse at the
sentencing hearing to be credible, under all the circumstances of
the case, and we have no cause to disturb that credibility
determination. Moreover, in evaluating Ayala’s remorse, the
trial court did not err in considering Ayala’s trial testimony and
his characterization of the charged incident, made while the
prosecution played the audio recording of the incident. We note
that during his testimony, Ayala admitted that he threatened to
shoot Rose in the face and that he vandalized her property.
The trial court weighed the circumstances in mitigation
and aggravation, including Ayala’s service-related PTSD, and
declined to place Ayala on probation. The record shows no abuse
of discretion in that sentencing decision.
21
III. The Trial Court Abused Its Discretion in Imposing
an Upper Term Sentence
As set forth above, section 1170.91 requires a trial court to
consider a defendant’s service-related PTSD as a circumstance in
mitigation when deciding which term—lower, middle, or upper—
to impose for an offense. (§ 1170.91, subd. (a); People v. Panozo,
supra, 59 Cal.App.5th at p. ___ [274 Cal.Rptr.3d at p. 67].)
Section 1170.91, subdivision (a) “provides that a sentencing court
‘shall consider’ the defendant’s qualifying service-related
condition ‘as a factor in mitigation’ when selecting the
appropriate determinate term.” (Panozo, at p. 67.) There is no
indication in the record before us that when the trial court
imposed the upper term sentence for criminal threats, the court
understood its obligation to consider Ayala’s service-related
PTSD as a factor in mitigation.
“ ‘A failure to exercise discretion may also constitute an
abuse of discretion.’ [Citation.] ‘ “A court which is unaware of
the scope of its discretionary powers can no more exercise that
“informed discretion” than one whose sentence is or may have
been based on misinformation regarding a material aspect of a
defendant’s record.” ’ ” (People v. Panozo, supra, 59 Cal.App.5th
at p. ___ [274 Cal.Rptr.3d at p. 68].)
The record demonstrates the trial court understood its
obligation under section 1170.9 to consider Ayala’s service-
related PTSD as a factor in favor of granting probation in this
case. The court repeatedly cited to section 1170.9 and made
express findings of fact related to the question of probation. Once
the court made the determination that it would sentence Ayala to
prison, rather than place him on probation, there was no further
discussion of his service-related PTSD. There was no mention by
22
the court or the parties of section 1170.91, and no mention of the
trial court’s separate obligation under that statute to consider
Ayala’s service-related PTSD as a circumstance in mitigation
when imposing a term.9
In imposing the upper term for the criminal threats, the
trial court stated it had “considered mitigating facts relating to
the defendant and the crime as set out in rule 4.423(a) and (b)
and 4.408,” and had considered “aggravating facts relating to the
crime and the defendant . . . [a]s set forth in rule 4.421.” While
rule 4.423(b)(2) generically lists a defendant’s “mental or physical
condition that significantly reduced culpability for the crime” as a
circumstance in mitigation, it does not specifically require the
court to consider a defendant’s service-related PTSD as a
circumstance in mitigation, as section 1170.91 does.
The trial court’s consideration of Ayala’s service-related
PTSD for purposes of placing him on probation does not
necessarily translate to the consideration of his condition for
purposes of imposing a term. It is clear from the record the court
believed it was not appropriate for Ayala to entirely avoid prison
time for his crimes in favor of probation. It is not clear from the
record, however, that the court would have imposed an upper
term sentence for the criminal threats if it had considered Ayala’s
service-related PTSD in light of section 1170.91. As the court
was aware, 31-year-old Ayala had a minimal criminal record,
consisting entirely of a 2011 out-of-state conviction for driving
9 The Attorney General’s argument that Ayala forfeited this
issue by failing to raise it below is misplaced here where the
record indicates the trial court’s “apparent misapprehension of
statutory sentencing obligations.” (People v. Panozo, supra, 59
Cal.App.5th at p. ___ [274 Cal.Rptr.3d at pp. 70-71].)
23
under the influence and a 2012 out-of-state conviction for driving
with a suspended or revoked license. A clinical psychologist
found it probable that Ayala’s service-related PTSD influenced
his behavior in the charged incident. Based on the record before
us, we conclude remand is necessary for the trial to make a
sentencing determination in light of its obligation under section
1170.91. (People v. Panozo, supra, 59 Cal.App.5th at p. ___ [274
Cal.Rptr.3d at p. 71] [“In short, our record necessitates remand
because it is, at the very least, ambiguous as to whether the trial
court was aware of its statutory obligations under sections 1170.9
and 1170.91”].)
DISPOSITION
The matter is remanded for a new sentencing hearing at
which the trial court shall satisfy its statutory obligations under
section 1170.91. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
FEDERMAN, J.*
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
24