People v. Williams CA2/1 ( 2023 )

Filed 6/29/23 P. v. Williams 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B317101
Plaintiff and Respondent, (Los Angeles County
Super. Ct. Nos. BA479730,
v. BA490996 and BA494451)
RICHARD WILLIAMS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Karla D. Kerlin, Judge. Sentence vacated and
remanded with directions.
Sharon Fleming, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Rene Judkiewicz, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________
INTRODUCTION
In three separate cases, defendant Richard Williams was
collectively charged with resisting an executive officer (Pen.
Code,1 § 69), felony vandalism (§ 594, subd. (a)) and second
degree robbery (§ 211). In each case, Williams pleaded no contest
and the court placed him on probation. The court later revoked
and terminated Williams’s probation, and sentenced him to
prison for the middle term of three years for the second degree
robbery, to run concurrently with a 16-month prison term for the
felony vandalism.2
On appeal, Williams contends the court should resentence
him on the robbery conviction based on amendments to section
1170, subdivision (b)(6)(A) (section 1170(b)(6)(A)) which became
effective after he was sentenced. As amended, section
1170(b)(6)(A) creates a presumption that the court should impose
the lower term where it finds the defendant “has experienced
psychological, physical, or childhood trauma, including, but not
limited to, abuse, neglect, exploitation, or sexual violence,” which
“was a contributing factor in the commission of the offense.”
(§ 1170(b)(6)(A).) Based on evidence of his history of mental
illness and substance abuse, Williams contends he should be
given the opportunity to demonstrate to the trial court that he
suffered psychological trauma, which could result in the trial
1All further unspecified statutory references are to the
Penal Code.
2 The court also sentenced Williams to three years for
resisting an executive officer, but he did not have to serve any
time for that offense because of credit he was awarded for time
served.
2
court imposing the lower term of two years for the robbery
instead of his current three-year term.
The People concede, and we agree, that the amendments to
section 1170(b)(6)(A) apply retroactively to Williams’s sentence
on the robbery conviction as it is not yet final. The People also
concede, and we agree, that we should remand this case for
resentencing so Williams can seek to show that he is entitled to
the lower term presumption under section 1170(b)(6)(A).
Accordingly, we conditionally vacate Williams’s sentence on the
robbery conviction and remand so that, applying amended section
1170(b)(6)(A), the court can determine whether Williams
experienced psychological trauma which contributed to his
commission of the crime and, if so, impose an appropriate
sentence. Otherwise, we affirm the judgment.
BACKGROUND
A. Williams Resists Arrest, Pleads No Contest, and Is
Placed on Probation
On July 22, 2019, two police officers attempted to arrest
Williams, who matched the description of a person reported to
have been breaking the windows of cars parked at a strip mall.
Williams did not respond to the officers’ verbal commands and
started to walk away. When the officers grabbed Williams’s
hands and attempted to handcuff him, he became rigid and
ripped his hand out of one officer’s grip, elbowing the officer in
the chest in the process. After Williams yelled and made a fist,
the officers forced him to the ground, but he continued to struggle
and the officers were unable to handcuff him until additional
officers arrived to assist. After being handcuffed, Williams
thrashed about and spat at the officers. One officer tried to put a
spit mask over Williams’s face; Williams bit that officer’s finger
3
and bit through the mask. Later, while other officers were
booking him into jail, Williams screamed, threw pens and other
items, physically resisted the officers’ attempts to control him,
and spat on an officer.
In an information filed on August 22, 2019 (case
No. BA479730), the People charged Williams with five counts of
resisting an executive officer. (§ 69.) The People also charged
Williams with having suffered a prior conviction which was a
“serious and/or violent felon[y]” within the meaning of sections
667, subdivision (d) and 1170.12, subdivision (b). The People
further charged Williams with having served three prior prison
terms so as to trigger enhancements under section 667.5,
subdivision (b).3 The People alleged that the offense was a
“serious felony” or a “violent felony” mandating that any sentence
be served in state prison. (§ 1170, subd. (h)(3).) Williams
pleaded not guilty.
On November 13, 2019, the court determined that Williams
“may be suitable for placement in” the Office of Diversion and
Reentry (ODR) housing program and transferred his case to
Department 44 to decide whether he should be placed into the
program. The judge in Department 44 referred to that courtroom
as “the O.D.R. court” and described the ODR housing program as
being “for people who are homeless and have severe mental
health disorders.”
On January 15, 2020, Williams appeared in Department 44
and pleaded no contest to one count of resisting an executive
3Subdivision (b) of section 667.5 has since been amended to
eliminate the one-year enhancement for non-sexual prior prison
terms. (Stats. 2019, ch. 590, § 1.)
4
officer pursuant to a plea agreement. The court sentenced
Williams to the upper term of three years in state prison, but
suspended execution of the sentence and placed him on formal
felony probation for a term of three years; the court dismissed the
remaining counts and allegations pursuant to section 1385. As a
condition of his probation, Williams was placed in the ODR
housing program and was ordered to participate in the program’s
classes and follow its rules and regulations.
On February 21, 2020, Williams was arrested for being
drunk in public. On April 8, 2020, at a probation revocation
hearing, Williams admitted to violating the terms of his
probation by leaving the ODR housing program without
permission and being arrested, and the court reinstated
probation on the same terms and conditions, including that
Williams participate in the ODR housing program.
On June 23, 2020, the court revoked Williams’s probation
based on a report that he had left the ODR housing program
without permission, and it issued a bench warrant for his arrest.
Williams was arrested on July 5, 2020, after an incident on
a public bus in which he kicked a basket belonging to another
passenger and then punched the other passenger in the
shoulder.4
At a probation revocation hearing on August 5, 2020,
Williams admitted to violating his probation and the court
reinstated his probation on the same terms and conditions, again
placing him in the ODR housing program.
4Williams was not charged in connection with this
incident.
5
B. Williams Vandalizes a Convenience Store, Pleads No
Contest, and Is Placed on Probation
On October 22, 2020, Williams entered a convenience store,
grabbed some items, and demanded a bag from an employee.
After the employee told him he would need to buy the bag,
Williams attempted to leave the store without paying for the
items. Another employee locked the doors and called the police.
Williams then attempted to break the doors with a metal hand-
sanitizer stand; one of the employees attempted to grab the stand
and suffered an injury to her hand in the process. Williams then
went behind the counter and began throwing items around,
damaging an electronic scanning device. Williams knocked over
a merchandise stand and threw a yellow “wet floor” sign at an
employee. He threatened the employees by saying, “If you don’t
let me out, I’m going to come back with a gun.” Officers arrived
at the store and arrested Williams.
In an information filed on October 26, 2020 (case
No. BA490996), the People charged Williams with felony
vandalism. (§ 594, subd. (a).) The People also charged Williams
with having suffered a prior conviction which was a “serious
and/or violent felony” within the meaning of sections 667,
subdivision (d) and 1170.12, subdivision (b). The People alleged
that the offense was a “serious felony” or a “violent felony”
mandating that any sentence be served in state prison. (§ 1170,
subd. (h)(3).) Williams pleaded not guilty.
Also on October 26, 2020, the court revoked Williams’s
probation on his conviction for resisting an executive officer (case
No. BA479730) as a result of his arrest for the convenience store
incident.
6
On December 18, 2020, Williams pleaded no contest to the
vandalism charge pursuant to a plea agreement; the court
accepted the plea and transferred the case to Department 44 for
sentencing.
On January 8, 2021, Williams appeared in Department 44
on the felony vandalism charge and the court conditionally
released him to the ODR housing program. At the hearing,
Williams admitted to a probation violation based on the resisting
an executive officer conviction, and the court reinstated probation
on the same terms and conditions.5
On February 25, 2021, the court revoked Williams’s
probation on his conviction for resisting an executive officer based
on a report that he had left the ODR housing program without
permission, and it issued a bench warrant for his arrest.
C. Williams Commits a Robbery, Pleads No Contest, and
Is Placed on Probation
On March 30, 2021, Williams tried to run out of a store
with makeup without paying. An employee grabbed the back of
Williams’s shirt and, in the process, was dragged and fell down,
hitting her head. Williams then fought with officers who
attempted to restrain him.
In an information filed on April 1, 2021 (case
No. BA494451), the People charged Williams with second degree
robbery. (§ 211; see § 212.5 [degrees of robbery].) The People
5 The court revised the term of probation to end on
January 15, 2022, two years after it was initially imposed, to
conform to a change in the law. As of January 1, 2021, section
1203.1, subdivision (a) limited suspension of the imposition or
execution of a sentence to two years. (Stats 2020, ch. 328, § 2.)
7
also charged Williams with having suffered a prior conviction
which was a “serious and/or violent felony” within the meaning of
sections 667, subdivision (d) and 1170.12, subdivision (b). The
People alleged that Williams had been convicted of five prior
felonies and was thus presumptively ineligible for probation
pursuant to section 1203, subdivision (e)(4). Williams pleaded
not guilty.
On June 2, 2021, Williams appeared in Department 44 and
pleaded no contest to one count of second degree robbery
pursuant to a plea agreement; the court dismissed the remaining
allegations. The court suspended imposition of the sentence and
placed Williams on three years of formal felony probation with
terms and conditions including placement in the ODR housing
program.
At the same hearing, the court suspended the imposition of
sentence on Williams’s vandalism conviction and placed him on
formal felony probation for a term of two years; the court
dismissed the remaining allegations. As a condition of probation,
the court placed Williams in the ODR housing program.
Also at this hearing, Williams admitted to violating his
probation on his conviction for resisting an executive officer, and
the court reinstated probation on the same terms and conditions.
D. The Court Revokes and Terminates Williams’s
Probation and Imposes Sentence in All Three Cases
On July 9, 2021, after receiving a report that Williams had
left his ODR housing program without permission, the court
revoked his probation in all three cases (Nos. BA479730,
BA490996 and BA494451) and issued a bench warrant.
8
On November 3, 2021, at a probation violation hearing,
Williams admitted violating probation, and the court revoked and
terminated his probation and sentenced him on all three cases.
For the conviction for resisting an executive officer (case
No. BA479730), the court imposed the previously suspended
sentence of three years in prison. Williams was given credit of
1,197 days for time served (587 actual days plus 586
work/conduct, plus an additional 24 days of “Davenport”6 credit),
with the result that he had no additional time to serve on this
conviction.
For the conviction for felony vandalism (case
No. BA490996), the court sentenced Williams to the lower term of
16 months, to be served concurrently with the sentence for
resisting an executive officer. Williams was given credit for 457
days of time served (221 actual days plus 220 work/conduct
credits, plus 16 days of Davenport credit).
For the conviction for second degree robbery (case
No. BA494451), the court sentenced Williams to the middle term
of three years in state prison. The court gave Williams 254 days
of credit for time served (121 actual days and 120 work/conduct
credit, plus 13 days of Davenport credit). The court ordered that
the sentence run concurrently with the sentences for the other
two offenses.
6 In People v. Davenport (2007) 148 Cal.App.4th 240, 246-
247 (Davenport), the court held the defendant was entitled to
custody credits under section 2900.5 for the time he spent in a
residential drug treatment program as a condition of probation.
9
E. Williams Appeals
On December 13, 2021, Williams filed a document he titled
“Emergency Retraction of Plea Bargain and Appeal Pro Bono,”
which was deemed a notice of appeal.
DISCUSSION
A. Scope of Appeal and Standard of Review
Williams did not file the written statement required by
section 1237.5 for issuance of a certificate of probable cause.
Accordingly, on January 31, 2022, this court issued an order
limiting the issues on appeal to those which do not require a
certificate of probable cause under section 1237.5. As applicable
here, a defendant who appeals following a plea of no contest or
guilty without a certificate of probable cause may only raise
grounds arising after the entry of the plea that do not affect the
plea’s validity. (§ 1237.5; Cal. Rules of Court, rule 8.304(b);
People v. Johnson (2009) 47 Cal.4th 668, 676-677 & fn. 3.)
We review a trial court’s sentencing decisions 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 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.) “A failure to exercise discretion also may constitute an
abuse of discretion.” (Id. at pp. 847-848.)
B. Section 1170(b)(6)(A) Applies Retroactively to
Williams’s Robbery Conviction and Warrants
Resentencing
Williams’s appeal challenges only his sentence on the
robbery offense, namely the trial court’s imposition of the middle
10
term of three years. Williams contends he is entitled to
resentencing as the result of amendments to the determinate
sentence law enacted by Assembly Bill No. 124 (Reg. Sess. 2021-
2022) (Assembly Bill 124), which took effect on January 1, 2022.
(Stats. 2021, ch. 695, § 5.) At the time Williams was sentenced on
the robbery offense, section 1170, subdivision (b) provided that
when a penal statute specified three possible imprisonment
terms (lower, middle, and upper), “the choice of the appropriate
term shall rest within the sound discretion of the court.” (Former
§ 1170, subd. (b); Stats. 2020, ch. 29, § 14.) As of January 1,
2022, section 1170(b)(6)(A) now creates a presumption that the
trial court should impose the lower term where certain
circumstances are present, including where the defendant “has
experienced psychological . . . trauma” which “was a contributing
factor in the commission of the offense.” (Stats. 2021, ch. 695,
§ 5, adding § 1170, subd. (b)(6).7)
7 “During the 2021-2022 legislative term, the Legislature
introduced three bills proposing changes to section 1170 in a
variety of ways. (Assem. Bill 124 (Stats. 2021, ch. 695, § 5),
Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Stats. 2021,
ch. 719, § 2), and Senate Bill No. 567 (2021-2022 Reg. Sess.)
(Stats. 2021, ch. 731, § 1.3).) The three bills were approved by
the Governor and filed with the Secretary of State on October 8,
2021. Senate Bill No. 567 . . . bears the highest chapter number
and is presumed to be the last of the three approved by the
Governor. (Gov. Code, § 9510.) To the extent there are conflicts
between the three bills, Senate Bill No. 567 . . . takes precedence.
(In re Thierry S. (1977) 19 Cal.3d 727, 738-739 . . . .) Because the
bills are not in conflict and the changes at issue in this appeal
were introduced by Assembly Bill 124, for ease of discussion, we
refer to Assembly Bill 124 rather than Senate Bill No. 567 . . . .
11
These amendments to section 1170 apply retroactively to
nonfinal judgments as they operate to reduce punishment, and
there is no evidence to rebut the presumption of retroactivity.
(People v. Gerson, supra, 80 Cal.App.5th at p. 1095; People v.
Banner (2022) 77 Cal.App.5th 226, 240; Banner, at pp. 243-244
(conc. & dis. opn. of Detjen, Acting P. J.).) The amendments
became effective before Williams’s sentence became final. (See
People v. Lopez (2019) 42 Cal.App.5th 337, 341-342 [“For the
purpose of determining the retroactive application of an
amendment to a criminal statute, the finality of a judgment is
extended until the time has passed for petitioning for a writ of
certiorari in the United States Supreme Court”].) Therefore, as
conceded by the People, the amendments to section 1170(b)(6)(A)
apply retroactively to Williams’s sentence on his robbery
conviction.
“ ‘Defendants are entitled to sentencing decisions made in
the exercise of the “informed discretion” of the sentencing court.
[Citations.] 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.’ [Citation.] In such circumstances, we have held that the
appropriate remedy is to remand for resentencing unless the
record ‘clearly indicate[s]’ that the trial court would have reached
the same conclusion ‘even if it had been aware that it had such
discretion.’ [Citations.]” (People v. Gutierrez (2014) 58 Cal.4th
1354, 1391.) Accordingly, to determine whether resentencing is
[Citation.]” (People v. Gerson (2022) 80 Cal.App.5th 1067, 1074,
fn. 2.)
12
required, we consider whether the record clearly indicates the
trial court would have imposed the same sentence had the
amendments to section 1170(b)(6)(A) been in place; if not, then
remand for resentencing is appropriate. (People v. Gerson, supra,
80 Cal.App.5th at p. 1096; People v. Banner, supra, 77
Cal.App.5th at p. 242.)8
There is no evidence in the record before us that Williams
suffered any particular “psychological . . . trauma” within the
meaning of section 1170(b)(6)(A), or that any such trauma was a
“contributing factor” in his commission of the robbery. However,
as Williams points out, prior to the amendments to section
1170(b)(6)(A) he did not have the same incentive to develop or
present evidence he suffered psychological trauma which
contributed to his commission of the robbery. (See People v.
Gerson, supra, 80 Cal.App.5th at p. 1096 [remanding for
resentencing to retroactively apply amendments to
§ 1170(b)(6)(A) where the trial court had no reason to make, and
the defendant had no reason to seek, “a finding that past
psychological or physical trauma was a contributing factor to his
commission of any of his offenses”]; see also People v. Frahs
8 We note that our colleagues in Division Six have held that
section 1170, subdivision (b)(6) applies when a court exercises
sentencing discretion, and not to defendants who enter into plea
agreements with a stipulated sentence and are sentenced in
accord with that plea agreement. (People v. Kelly (2022) 87
Cal.App.5th 1, review granted Mar. 22, 2023, S278503.) We need
not address this question here. Although Williams pleaded guilty
pursuant to a plea agreement in case No. BA494451, the sentence
at issue was imposed after a probation revocation and involved
the court’s exercise of discretion.
13
(2020) 9 Cal.5th 618, 637-638 [rejecting argument that the
defendant had to demonstrate on appeal he was eligible for
retroactively available pretrial diversion program as “unduly
onerous and impractical” where “the record on appeal is unlikely
to include information pertaining to several eligibility factors”].)
Williams contends that we should remand this case for
resentencing because “[t]he record . . . (although not yet fully
developed) indicates that, at a minimum, he has a history of
mental illness and substance abuse.” The People concede that
remand is appropriate, stating that references in the record
regarding Williams’s mental health problems “are enough to
warrant remand to give [Williams] an opportunity to develop the
record in that regard.”
We agree.9 The record suggests that Williams suffers from
a mental illness. He exhibited irrational behavior during his
various offenses. He was placed in the ODR housing program,
which the court described as being for individuals with “severe
mental health disorders.” Williams received mental health
9 Williams also contends that remand is required because
“if the trial court finds insufficient evidence of the [section 1170,
subdivision] (b)(6) factors, it nevertheless has discretion to
impose the low term pursuant to section 1170, subd[ivision]
(b)(7).” We disagree. Section 1170, subdivision (b)(7) provides,
“Paragraph (6) does not preclude the court from imposing the
lower term even if there is no evidence of those circumstances
listed in paragraph (6) present.” (§ 1170, subd. (b)(7).) This new
provision does not alter the trial court’s sentencing discretion
beyond the change effected by section 1170, subdivision (b)(6);
thus, if resentencing is not justified under subdivision (b)(6) of
section 1170, it cannot be justified under subdivision (b)(7).
14
treatment and medication through the ODR program. At a
hearing on January 8, 2021, Williams acknowledged that he
needed to take his medication, and stated, “It feels like the walls
are closing in on me, and I wanted to be outside all the time. I
can’t be outside all the time due to being on probation and being
under certain requirements and stipulation.” In light of this
evidence, we cannot conclude that the record “clearly indicates”
the trial court would have rendered the same sentence had
Assembly Bill 124 been in effect at the time it sentenced Williams
on the robbery charge.
Remand is therefore appropriate to allow Williams the
opportunity to demonstrate to the trial court that he is entitled to
the lower term presumption under section 1170(b)(6)(A). We
express no opinion on whether Williams experienced
“psychological . . . trauma” which “was a contributing factor in
the commission of the offense” (§ 1170(b)(6)(A)), and, if so,
whether “the aggravating circumstances outweigh the mitigating
circumstances” such “that imposition of the [presumptive] lower
term would be contrary to the interests of justice” (id., subd.
(b)(6)).
15
DISPOSITION
We conditionally vacate Williams’s sentence on the robbery
conviction and remand so that, applying amended section
1170(b)(6)(A), the court can determine whether Williams
experienced psychological trauma which contributed to his
commission of the crime and, if so, impose an appropriate
sentence. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
CHANEY, J.
BENDIX, Acting P. J.
16