People v. Bergstrom CA3 ( 2023 )

Filed 1/31/23 P. v. Bergstrom CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, C094353
Plaintiff and Respondent, (Super. Ct. No. 20F929)
v.
HAWK BLAZE BERGSTROM,
Defendant and Appellant.
Defendant Hawk Blaze Bergstrom was driving under the influence of alcohol
when he collided with the victim’s car and killed her. A jury found defendant guilty of
second degree murder. The trial court denied probation and sentenced defendant to 15
years to life in state prison.
On appeal, defendant argues the trial court erred in failing to consider his service-
related alcoholism as a factor in favor of granting probation. Recognizing this issue was
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not raised at sentencing, defendant alternatively contends he received ineffective
assistance of counsel.
We conclude the trial court’s obligations to consider defendant’s military service
were not triggered, and reject defendant’s ineffective assistance of counsel claim. The
judgment is affirmed.
I. BACKGROUND
Defendant drove under the influence of alcohol, veered into the oncoming lane of
traffic, and collided head-on with the victim’s car. The victim died due to her injuries. A
jury found defendant guilty of second degree murder. (Pen. Code, § 187, subd. (a).)1
The probation report noted defendant joined the United States Navy in 1995 and
was honorably discharged in 1999. According to the report, defendant was a
“ ‘functional alcoholic’ beginning when he was in the U.S. Navy.” Although defendant’s
drinking problem worsened after his father’s passing in 2018, he denied it impacted his
life until the instant case. The probation report also listed two prior convictions of
defendant: misdemeanor petty theft (§ 488) in 1999; and misdemeanor driving under the
influence (DUI) (Veh. Code, § 23152, subd. (a)) in 2015. Defendant was granted
probation in his DUI conviction.
Defense counsel submitted letters from defendant’s friends and family requesting
leniency. These letters referred to defendant’s service and his alcoholism, and several
echoed that defendant’s drinking worsened following his father’s passing. However,
none attributed defendant’s alcoholism to his time in the Navy.
At sentencing, the trial court commented the case was “straightforward,” and the
sentence was “predictable” based on the totality of the circumstances. Although the trial
court concluded defendant was statutorily ineligible for probation, it agreed with the
1 Undesignated statutory references are to the Penal Code.
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probation report that this conclusion was “essentially academic,” because it “would not
grant probation in a case of this nature anyway.” Applying the factors affecting
probation, the trial court observed the crime was serious and involved egregious
behavior, criticized defendant for learning nothing from his previous probation for DUI,
and expressed concerns that defendant could not control his alcohol addiction. Thus, the
trial court denied probation, concluding the public would be best protected if defendant
was incarcerated.
The trial court sentenced defendant to an indeterminate term of 15 years to life in
state prison. It acknowledged defendant expressed remorse and accepted responsibility
after the incident. But it also deemed this case “the poster child” for a second degree
murder under People v. Watson (1981) 30 Cal.3d 290, where an intoxicated killer drove
while aware of the risk to life and consciously disregarded that risk. Thus, the trial court
concluded the sentence imposed was a harsh but fair penalty. Defendant timely appealed.
II. DISCUSSION
Defendant argues the trial court erred because it failed to consider his service-
related alcohol abuse problem in denying probation, and such failure necessitates remand.
Alternatively, defendant claims he received ineffective assistance of counsel. We are not
persuaded.
A. Section 1170.9
Section 1170.9 requires a sentencing court to consider, upon allegation by a
criminal defendant, service-related substance abuse as a factor in favor of granting
probation. The statute “speak[s] in terms that are mandatory rather than permissive.”
(People v. Panozo (2021) 59 Cal.App.5th 825, 836.) By its plain language, section
1170.9 “unambiguously obligate[s] a sentencing court to consider a defendant’s service-
related . . . substance abuse . . . in making discretionary sentencing choices.” (Ibid.) In
order to trigger the trial court’s obligations under section 1170.9, the defendant must
allege that he committed the offense as a result of substance abuse stemming from service
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in the United States military. (§ 1170.9, subd. (a); People v. Bruhn (1989)
210 Cal.App.3d 1195, 1199.)
“We review a trial court’s sentencing decisions for an abuse of discretion.”
(People v. Panozo, supra, 59 Cal.App.5th at p. 837.) “[A] trial court does not abuse its
discretion unless its decision is so irrational or arbitrary that no reasonable person could
agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
Here, defendant did not allege that he committed the offense as a result of
alcoholism that stemmed from his service in the Navy. The probation report stated
defendant’s alcoholism started when he served in the Navy, but provided no details as to
whether defendant’s service contributed to his alcoholism. Both the probation report and
letters from defendant’s friends and family stated defendant’s drinking problem worsened
after his father’s passing in 2018, long after he was discharged from the Navy. None of
defendant’s friends and family attributed his alcoholism to his time in the Navy in their
letters to the trial court. Based on the record, the trial court’s obligations under section
1170.9 were not triggered. (See People v. Bruhn, supra, 210 Cal.App.3d at p. 1199; cf.
People v. Panozo, supra, 59 Cal.App.5th at pp. 830-831, 838-839 [remand necessary
where the defendant provided ample uncontested evidence showing his service-related
condition contributed to his criminal behavior].)
Because the trial court considered the factors affecting probation in detail, we find
it unnecessary to decide whether the trial court erred in concluding defendant was
statutorily ineligible for probation.
B. Ineffective Assistance of Counsel
Defendant alternatively argues he received ineffective assistance of counsel
because his trial counsel failed to request the trial court consider his service-related
alcoholism as a factor favoring probation. We disagree.
The burden of proving ineffective assistance of counsel is on the defendant.
(Strickland v. Washington (1984) 466 U.S. 668, 687.) To establish constitutionally
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inadequate representation, the defendant must show that (1) counsel’s performance was
deficient, and (2) the deficient performance prejudiced the defense. (Ibid.)
We defer to trial counsel’s reasonable tactical decisions in examining a claim of
ineffective assistance of counsel. (People v. Weaver (2001) 26 Cal.4th 876, 925.) On
direct appeal, “competency is presumed unless the record affirmatively excludes a
rational basis for the trial attorney’s choice.” (People v. Musselwhite (1998) 17 Cal.4th
1216, 1260.) “If the record on appeal sheds no light on why counsel acted or failed to act
in the manner challenged, an appellate claim of ineffective assistance of counsel must be
rejected unless counsel was asked for an explanation and failed to provide one, or there
simply could be no satisfactory explanation.” (People v. Gray (2005) 37 Cal.4th 168,
207.) Failure to assert a meritless position does not demonstrate ineffective assistance of
counsel. (People v. Kipp (1998) 18 Cal.4th 349, 377.)
Here, the record sheds no light on why trial counsel chose not to raise section
1170.9 at sentencing. But there are possible satisfactory explanations. None of
defendant’s friends and family attributed his alcoholism to his time in the Navy in their
letters to the trial court. Instead, several acknowledged, consistent with the probation
report, that defendant’s drinking worsened after his father’s passing. It is therefore
possible that defense counsel, after speaking to defendant and his friends and family,
concluded defendant’s drinking problem was unrelated to his service and a section
1170.9 claim lacked merit. Because the record does not exclude a rational basis for trial
counsel’s failure to make a section 1170.9 claim, we find no ineffective assistance of
counsel.
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III. DISPOSITION
The judgment is affirmed.
/S/
RENNER, J.
We concur:
/S/
HULL, Acting P. J.
/S/
McADAM, J.*
* Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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