People v. Sawyer CA4/2 ( 2023 )

Filed 2/27/23 P. v. Sawyer CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E078293
v. (Super.Ct.No. RIF72880)
LINDEN ROY URIAH SAWYER, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Kevin Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, James M.
Toohey and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
1
INTRODUCTION
Defendant and appellant Linden Roy Uriah Sawyer appeals the denial of a petition
seeking recall of his sentence under Penal Code1 section 1170.91. That section allows a
current or former member of the military who may be suffering from sexual trauma, post
-traumatic stress disorder (PTSD), or substance abuse (among other conditions) as a
result of his service to obtain a resentencing hearing. Defendant contends the trial court
abused its discretion in summarily denying his petition without adequately considering
his military trauma as a mitigating circumstance. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
Beginning in 1995, defendant sexually abused four minor victims, who were his
girlfriend’s daughters and nieces.
On September 5, 1997, a second amended information was filed charging
defendant with one count of rape of an intoxicated person (§ 261, subd. (a)(3), count 1),
rape of an unconscious person (§ 261, subd. (a)(4), count 2), annoying or molesting a
minor (§ 647.6, count 3), misdemeanor providing alcohol to a minor (§ 272, counts 4 &
1 All further statutory references will be to the Penal Code unless otherwise
indicated.
2 Because defendant pled guilty, the brief factual summary is taken from the
probation officer’s sentencing memorandum.
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5), and 28 counts of committing a lewd or lascivious act on a child under the age of 14
(§ 288, subd. (a), counts 6-33).3
On June 29, 1998, defendant entered a plea agreement and pled guilty to counts 1-
33. The plea agreement stated the maximum possible custody term was 66 years and the
indicated sentence was 14 years. At the plea hearing held that day, the court indicated it
would sentence defendant to 14 years in prison. It also noted that defendant was asking
to come back to court on July 24, 1998, for sentencing, and it would hear from one or
more of the victims or their parents at that hearing. Defendant promised to return and
agreed that if he failed to do so, the court would revoke the indicated sentence of 14 years
and be free to sentence him to a greater term. Defendant then pled guilty to counts 1
through 33 as alleged.4
Defendant failed to appear at the sentencing hearing on July 24, 1998, and the
court issued a bench warrant for his arrest. He was not apprehended and arrested until
November 5, 2003.
3 We note appellant’s opening brief and respondent’s brief state that defendant
was charged with and/or pled guilty to 29 counts of committing a lewd or lascivious act
on a child under 14 years old (§ 288, subd. (a)), apparently including count 1 with counts
6-33. However, the second amended information lists count 1 as charging defendant with
rape of an intoxicated person. (§ 261, subd. (a)(3).) Furthermore, the plea agreement
indicates count 1 was a violation of section 261, and the reporter’s transcript from the
June 29, 1998 plea hearing shows that defendant pled guilty to a violation of section 261,
subdivision (a)(3).
4 Defendant’s plea appears to have been an open plea to the court rather than a
plea agreement since defendant pled guilty to all charges and sentencing was left to the
discretion of the court. The court, however, had given an indicated sentence of 14 years.
3
On March 12, 2004, defendant filed a motion to withdraw his plea based on
ineffective assistance of counsel.
The court held a sentencing hearing on May 28, 2004, and denied defendant’s
motion to withdraw the plea. It then proceeded to sentencing and heard testimony from
the victims. The prosecutor argued the factors in aggravation were overwhelming,
specifically citing that defendant chose victims who were particularly vulnerable, and he
took advantage of a position of trust. Defendant befriended the victims’ mother, “worked
his way into a family,” and “systematically proceeded to take sexual advantage of young
girls who looked up to him and who trusted him.” He also showed sophistication and
separated the victims from their mother, provided them with alcohol, and molested them.
The prosecutor further pointed out that defendant showed a lack of remorse and
callousness toward his victims, noting that when the victims came to court to give their
statements at the original sentencing hearing, he failed to show up and instead went into
hiding. Defense counsel disagreed that defendant did not have remorse and asserted that
he needed therapy. Defense counsel then asserted, in mitigation, that defendant had no
criminal record, and he was a Marine who was honorably discharged.
After hearing argument from counsel, the court noted that by pleading guilty,
defendant spared his victims from having to testify, and the court was originally willing
to give him a sentence that would reward him for that. However, the court declared that,
since defendant failed to show up for sentencing, he forfeited that reward, and it would
now simply consider the factors in aggravation and mitigation under California Rules of
Court, rule 4.425. The court specifically noted that defendant’s criminal acts occurred at
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different times with different people, which was “particularly aggravating.” The court
then sentenced defendant to 30 years in prison and 180 days in any penal institution,
comprised of the following: six years on count 2; a concurrent six years on count 1; two
concurrent 180-day terms on counts 3 and 4; a consecutive 180 days on count 5; 12
consecutive two-year terms on counts 6 through 14 and 31 through 33; and 16 concurrent
six-year terms on counts 15 through 30.
On January 24, 2019, defendant filed, in propria persona, a petition for
resentencing pursuant to section 1170.91, alleging he was a Marine who suffered from
sexual trauma, post-traumatic stress disorder (PTSD), and substance abuse.5 In support,
he attached his military and mental health records, letters of support, and certificates of
completion from various programs.
On March 8, 2019, the People filed an opposition to the petition, arguing
defendant was not eligible for mitigation of his sentence since he failed to provide
sufficient documentation to establish he was in the military or that his military service
resulted in trauma or mental health issues.
On March 15, 2019, the court appointed counsel to represent defendant.
Appointed counsel subsequently filed a motion in support of his petition for resentencing
that included additional exhibits. The motion alleged that one of defendant’s instructors
in the Marines sexually abused him, and he suffered from PTSD as a result of this
5 Defendant used a form petition entitled “Petition for Writ of Habeas Corpus”;
however, his petition actually concerned a request for resentencing under section
1170.91.
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incident, as well as an incident where he aided a fellow Marine, who fell 50 feet to his
death.
The matter was continued several times. On July 8, 2021, defense counsel filed a
supplemental brief in support of resentencing, attaching more documentation in support
of his claims. On July 22, 2021, the trial court found that defendant had made a prima
facie showing under section 1170.91.
On August 25, 2021, defense counsel filed another resentencing brief, which
argued that the court must consider as mitigating factors the sexual trauma and PTSD
defendant suffered from his military service. He also contended the court could consider
defendant’s postconviction behavior, including his participation in rehabilitation
programs.
The probation department filed a report on November 18, 2021, recommending
that the court sentence defendant to the maximum sentence of 66 years in state prison.
The report noted defendant had provided his military records, and his mental health
records indicated he was diagnosed with PTSD, bipolar disorder, and depression. The
probation officer listed the following aggravating circumstances: (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”; (2) “The victim was
particularly vulnerable”; (3) “The manner in which the crime was carried out indicates
planning, sophistication, or professionalism”; and (4) defendant “took advantage of a
position of trust or confidence to commit the offense.” The only mitigating factor listed
was that defendant had no prior criminal record. The probation officer stated he
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considered defendant’s military history, personal traumas, and sexual abuse, amongst
other factors, including that defendant absconded for five years during these proceedings;
he ultimately concluded that the number of aggravating factors and their gravity
outweighed the mitigating factors.
On December 16, 2021, the court held a hearing on defendant’s petition. At the
outset, the court stated it read defendant’s resentencing brief, including the attached
documents containing his military record. The court specifically mentioned defendant’s
claim that described his PTSD and sexual assault, mental health documentation, and
numerous certificates from various programs. It also mentioned the family support letters
received, naming each person who submitted one. The court further stated it read the
probation officer’s report. The court then permitted one of the victims to make a
statement in court, and allowed defendant to respond. Defendant addressed the victim at
length and apologized for the trauma he had caused. The court then asked if either
counsel had anything to say, and both said no.
The court stated it was “obliged to consider what the law tells me I’m obliged to
consider, which is military history as a factor in mitigation.” The court observed that the
earliest reports were from 2016, “after the conviction in this matter,” when defendant
reported to the military about the traumatic events of being victimized by a superior and
his fellow Marine falling off a cliff. The court then stated that if it was the original
sentencing judge, it would have “found that the case was still an aggravated case,” even
considering what happened to defendant in the military as a mitigating factor. The court
said, had this case been tried before it and the crimes found true, it “very likely” would
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have given defendant the maximum sentence of 66 years in state prison. The court
specified: “The victim was incredibly vulnerable. You were in a position of trust. It did
involve planning. It did involve a level of sophistication. She couldn’t have been much
more vulnerable unless she’d been younger. And so I would have found that to be an
aggravated—Count 2 to be aggravated. And I would have sentenced you to eight years
on that one. [¶] And all the rest of them, because there were so many different events
and they were independent events, I would have run consecutive at one-third the
midterm, which would have resulted in a 66-year sentence.”
The court lauded defendant’s accomplishments in state prison; however, it also
observed that defendant absconded for five years after he pled guilty. The court
concluded that “[o]n balance, I think under the circumstances, the disposition, even given
your postconviction conduct, is an appropriate disposition. It is less than half of your
complete exposure. I—I do not find that your military record is mitigating enough, nor
your postconviction record is mitigating enough, that I would do anything else with these.
[¶] . . . [¶] I see no reason to upset the original disposition of 30 years. I cannot make it
more. It would still be hard for me not to sentence you to more than 30 years because the
crime across four victims is so aggravated that it would be appropriate. [¶] That being
the case, to the extent that I am sentencing you, I adopt all of the original sentencing
decisions of the sentencing judge.” Then, the parties agreed, and the court ordered, that
defendant be awarded 6,412 actual days of postjudgment credits.
8
DISCUSSION
The Court Did Not Abuse its Discretion in Imposing the Same Term at the Resentencing
Hearing
Defendant argues the court abused its discretion by failing to adequately consider
the evidence of his military trauma as a mitigating factor within the meaning of sections
1170.9 and 1170.91, and it gave a “perfunctory rubber-stamping of the original 30-year
sentence imposed by the trial court in 2004.” He claims the court disregarded the
evidence of his trauma and “simply stated that it adopted the 30-year sentence and
reasoning of the original judge . . . without conducting any evidentiary hearing or even
having benefit of the transcript of the original sentencing hearing.” He further asserts he
was not given the opportunity to introduce any additional evidence at the hearing, and the
court “summarily and arbitrarily concluded” that his military trauma did not justify a
reduced sentence. We conclude there was no abuse of discretion.
A. Relevant Law
“Under section 1170, subdivision (b), ‘[w]hen a judgment of imprisonment is to be
imposed and the statute specifies three possible terms, the choice of the appropriate term
shall rest within the sound discretion of the court.’ [Citation.] In 2014, the Legislature
enacted former section 1170.91 [now identified as § 1170.91, subd. (a)] (Stats. 2014, ch.
163, § 2), which mandated 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 (Brooks).)
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“In 2018, the Legislature amended section 1170.91 to add a retroactivity clause
and a procedure for resentencing. [Citations.] Subdivision (b) of section 1170.91 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 sexual trauma, traumatic brain injury, post-traumatic stress disorder,
substance abuse, or mental health problems as a result of [such] military service . . . .’ ”
(Brooks, supra, 58 Cal.App.5th at p. 1104; see § 1170.91, subd. (b).)
“A section 1170.91, subdivision (b) petitioner must allege: ‘(A) [t]he circumstance
of suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder,
substance abuse, or mental health problems 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.’ (§ 1170.91, subd. (b).) 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. [Citation.] 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.” (Brooks, supra, 58
Cal.App.5th at p. 1104.)
We review a trial court’s sentencing decision for an abuse of discretion, evaluating
whether the court exercised its discretion in an arbitrary and capricious manner. (People
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v. Panozo (2021) 59 Cal.App.5th 825, 837; People v. Sandoval (2007) 41 Cal.4th 825,
847.)
B. The Court Properly Considered Defendant’s Military Service and Trauma
Defendant makes repeated and similar claims that the court only gave
“perfunctory consideration” to his military trauma, that it disregarded his evidence of
trauma, that it only held “a perfunctory hearing,” and that it gave a “perfunctory rubber-
stamping of” and “summarily upheld” the original 30-year sentence. The record plainly
belies these claims.
The court here first found that defendant established eligibility for recall by
showing that he may have a current qualifying condition that may be the result of military
service. It then held a resentencing hearing at which it described in great detail that it had
reviewed defendant’s resentencing brief, family support letters, a letter from one of the
victims, and the probation officer’s report, which addressed defendant’s military trauma.6
The court permitted a victim to testify in court and allowed defendant to respond to her.
The court also gave the prosecutor and defense counsel an opportunity to speak.
Contrary to defendant’s claim that the court “at no point” addressed his service-
related mental health issues, the court stated it had reviewed the claim that described
defendant’s PTSD and sexual assault, as well as the mental health documentation. The
court later acknowledged that it was “obliged” by law to consider defendant’s military
6Although, as defendant points out, the probation report lists only one mitigating
factor—that defendant had no prior criminal record—the probation officer stated he
considered defendant’s military history, personal traumas, and sexual abuse in making its
sentencing recommendation.
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history as a factor in mitigation. The court stated that it reviewed defendant’s medical
records and specifically noted that the traumatic events he suffered in the military—
namely, witnessing a fellow Marine fall off a cliff and being victimized by his superior—
were not reported until 2016, after the convictions in this case. The court then thoroughly
explained why, if it was the original sentencing court, it would have sentenced defendant
to the maximum 66 years, even considering his military trauma as a mitigating factor.
The court cited in detail the numerous aggravating factors applicable here.
The court proceeded to recognize that defendant made laudable efforts at
rehabilitation while in prison, but also that he absconded for five years after he pled
guilty. Notably, the court stated, “I do not find that your military record is mitigating
enough” to warrant a different sentence. The court concluded that under the
circumstances, there was no reason to upset the original sentence of 30 years.
“If, after a hearing, the trial court finds that the petitioner may be suffering from a
qualifying condition as a result of his or her military service, it ‘may, in its discretion,
resentence the person following a resentencing hearing.’ It does not necessarily have to
resentence the petitioner. And if it does, it need only consider the fact that the petitioner
may be suffering from a qualifying condition as a result of his or her military service as
one mitigating factor, along with all of the other mitigating and aggravating factors in
the case.” (People v. Coleman (2021) 65 Cal.App.5th 817, 823, emphasis added.) The
record clearly demonstrates the court properly considered the trauma defendant suffered
while in the military as a mitigating factor, along with all the other mitigating and
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aggravating factors. Therefore, it did not abuse its discretion in imposing the 30-year
sentence.
Defendant complains he was not given the opportunity to introduce any additional
evidence at the resentencing hearing and claims the court should have conducted an
evidentiary hearing to “explore the effect of [his] past trauma on his misconduct that led
to” his convictions. However, defendant himself acknowledges that “[i]t remains an open
question as to whether the lower court must actually conduct an evidentiary hearing to
satisfy the requirements of [section 1170.91, subdivision] (b)(3).” Nothing in section
1170.91 requires the court to allow a defendant to present additional evidence beyond
what is submitted in support of the petition. In fact, the statute provides that, at the
hearing, “the prosecution shall have an opportunity to be heard on the petitioner’s
eligibility and suitability for resentencing.” (§ 1170.91, subd. (b)(3), italic added.) In
other words, the statute explains the showing which defendant must make and provides
that the prosecution must have the opportunity to be heard at the hearing. Most
importantly, defendant never sought an evidentiary hearing and did not seek to introduce
any other evidence. The court did not deny defendant the opportunity to have an
evidentiary hearing.
Ultimately, upon finding defendant made a prima facie case that he suffered PTSD
as a result of his military service, the court was required to consider such circumstance as
a factor in mitigation, and it did so. (§ 1170.91, subds. (a), (b).) The court considered
defendant’s military service and trauma, along with other aggravating and mitigating
factors, and thoroughly explained its reasons for deciding to reimpose the 30-year
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sentence. Thus, the record demonstrates the court’s decision was not arbitrary or
capricious.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
MILLER
Acting P. J.
MENETREZ
J.
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