People v. Socha CA2/2 ( 2021 )

Filed 12/16/21 P. v. Socha CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO
THE PEOPLE, B308652
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA004920)
v.
JOSEPH BRIAN SOCHA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Gary J. Ferrari, Judge. Affirmed.
Andrea S. Bitar, 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, Steven D. Matthews and Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Joseph Brian Socha (defendant)
appeals from the order summarily denying his petition for
resentencing, filed pursuant to Penal Code section 1170.91.1 He
contends that upon receipt of the petition, the trial court was
required to schedule a hearing with notice to him and the
prosecution. We agree but find the error harmless. Accordingly,
we affirm the order.
BACKGROUND
In 1991, defendant was convicted of 20 felony counts
arising from violent sexual attacks on five different women.2 He
was convicted of 13 counts of forcible oral copulation, one count of
forcible sexual penetration with a foreign object, three counts of
forcible sodomy, two counts of second degree robbery, and one
count of kidnapping to commit a felony sexual offense.
Allegations of deadly weapons use were found true as to 19 of the
20 counts, and defendant was sentenced to a total determinate
prison term of 117 years. Defendant had presented an
unsuccessful insanity defense. The judgment was affirmed on
appeal in Socha I, supra, B061637.
In 2020, defendant petitioned in propria persona for
resentencing pursuant to section 1170.91, subdivision (b). On
August 4, 2020, the trial court summarily denied the petition
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
2 The record before us includes the information, the abstract
of judgment, a minute order regarding defendant’s sentencing,
and the nonpublished opinion affirming the 1991 judgment in
People v. Socha (July 23, 1992, B061637) (Socha I). We derive
the procedural and evidentiary facts from these documents.
2
without a hearing, issued a memorandum of decision, giving
notice to defendant and the district attorney.
Defendant filed a timely notice of appeal from the order.
We affirm the order.
DISCUSSION
Since 2015 California courts when imposing a determinate
term of imprisonment are required to consider as a factor in
mitigation any sexual trauma, traumatic brain injury (TBI),
posttraumatic stress disorder (PTSD), substance abuse, or mental
health problems from which a defendant may be suffering as a
result of military service in the United States. (§ 1170.91,
subdivision (a); see Stats. 2014, ch. 163, § 2.) Effective
January 1, 2019, section 1170.91 was amended by adding
subdivision (b), which permits any defendant currently serving a
sentence for a felony conviction and who was sentenced prior to
2015, to petition for a resentencing hearing in which the court
retroactively takes into account the identified mitigating factors,
if the court failed to do so at the time of the original sentencing.
(§ 1170.91, subd. (b)(1); see People v. Bonilla-Bray (2020) 49
Cal.App.5th 234, 238 (Bonilla-Bray).)
“To be eligible for resentencing, a petitioner must meet the
following criteria: [¶] –He or she is currently serving a sentence
for a felony conviction—whether by trial or plea (§ 1170.91, subd.
(b)(1)); [¶] –He or she served in a branch of the United States
military (ibid.); [¶] –As a result of his or her service, he or she
suffers from sexual trauma, traumatic brain injury,
posttraumatic stress disorder, substance abuse, or mental health
problems (ibid.); [¶] –The court did not consider those
circumstances as a factor in mitigation at the time of sentencing
3
(id., subd. (b)(1)(A)); and [¶] –He or she was sentenced before
January 1, 2015 (id., subd. (b)(1)(B)).” (Bonilla-Bray, supra, 49
Cal.App.5th at p. 238.)
Defendant submitted his petition on Judicial Council Form,
form CR-412/MIL-412 (new Jan. 1, 2020), alleging that he was
currently in jail or prison for multiple felony convictions, had
been a member of the United States Marine Corps from October
1981 to February 1984, and that as a result of his military service
he may be suffering TBI, PTSD, substance abuse, and mental
health problems with a diagnosis of schizoaffective disorder,
bipolar disorder, and major depressive disorder. In addition the
petition alleged that defendant was sentenced prior to 2015, and
that the sentencing court did not consider such health conditions
in deciding the sentence.3 The petition contained all the required
allegations.
Section 1170.91, subdivision (b)(3) sets forth the required
procedure for the trial court: “Upon receiving a petition under
this subdivision, the court shall determine, at a public hearing
held after not less than 15 days’ notice to the prosecution, the
defense, and any victim of the offense, whether the person
satisfies the criteria in this subdivision. At that hearing, the
prosecution shall have an opportunity to be heard on the
petitioner’s eligibility and suitability for resentencing. If the
3 Exhibits attached to the petition included the abstract of
judgment, which showed that defendant was sentenced to
consecutive determinate terms, as well as defendant’s
declaration, his military discharge documents, records from the
Veterans’ Administration (VA), including psychiatric and other
medical records, and a military disability benefits determination.
4
person satisfies the criteria, the court may, in its discretion,
resentence the person following a resentencing hearing.”
The trial court here held no hearing and did not provide
notice until after the petition was denied. Without claiming that
the petition failed to contain the required averments, the People
contend that the court did not err because defendant failed to
demonstrate that he was eligible under the statute. The People
argue that before the court was obligated to hold a hearing
defendant was required to make a prima facie showing of
eligibility and to do so with evidence or by addressing evidence in
his trial record.4 The People also suggest that the trial court
correctly conducted its own unaided review of evidence in the
record to determine the truth of allegations of the petition and to
exercise the discretion granted by section 1170.91, subdivision
(b)(3).
The authority cited for these arguments does not appear to
support them. The People rely on a habeas corpus case, People v.
Duvall (1995) 9 Cal.4th 464, citing page 475, where the
California Supreme Court held that a court “receiving such a
petition evaluates it by asking whether, assuming the petition’s
factual allegations are true, the petitioner would be entitled to
relief. [Citations.] If no prima facie case for relief is stated, the
4 The People have asked that we take judicial notice of 13
pages of the reporter’s transcript in the Socha I record, as well as
the statement of facts in the People’s brief filed in that appeal.
That record was destroyed long ago, and the People have not
attached copies of the 13 pages of reporter’s transcript or the
referenced brief. As the People have not complied with either
subdivision (a) or (b) of Evidence Code section 453, we deny this
request.
5
court will summarily deny the petition. If, however, the court
finds the factual allegations, taken as true, establish a prima facie
case for relief, the court will issue an [order to show cause].” (Id.
at pp. 474-475, italics added.) Neither the cited case nor section
1170.91, subdivision (b), supports an argument that taking the
allegations of the petition as true requires a review of the record
without notice or a hearing to determine the truth of allegations
already found to be true.
A petitioner is not required to allege evidentiary facts.
(People v. Coleman (2021) 65 Cal.App.5th 817, 823 (Coleman).)
The plain language of section 1170.91, subdivision (b)(3) requires
the trial court on receipt of defendant’s petition to hold a public
hearing upon notice to the prosecution, the defense, and any
victim of the offense. The initial hearing is not the resentencing
hearing at which the court would exercise discretion over
whether to resentence defendant; rather a resentencing hearing
will be scheduled if defendant satisfies the statutory criteria after
the initial hearing. (§ 1170.91, subd. (b)(3); see Coleman, supra,
at pp. 823-824.) There is nothing in the statute that would
impose an evidentiary burden on the petitioner prior to the initial
hearing.
Here, after the trial court reviewed its file, “including
minutes, transcripts,[5] probation report, Court of Appeal
Decision,” and it made findings. The court noted that evidence
presented during the sanity phase of the trial showed that while
in the Marine Corps defendant was diagnosed with personality
5 In its memorandum of decision dated August 4, 2020, the
court cited pages 1038 and 1039 of the reporter’s transcript of
defendant’s trial though later the court was unable to find the
transcript.
6
disorder. After his discharge the VA diagnosed him with
paranoid schizophrenia, panic disorder, and borderline
personality disorder. The trial court noted that the sentencing
court considered the probation report, which mentioned
defendant’s diagnoses. The trial court concluded that defendant’s
mental or psychiatric condition was “well known to the
sentencing judge,” and defendant’s diagnoses were considered as
a mitigating factor by the sentencing court as demonstrated by
the sentencing court’s following statement:
“‘There are circumstance (sic) in MITIGATION which
the court is considering: [¶] He has no prior record.
[¶] He was in fact suffering from a mental or
physical condition that would reduce his culpabilities
for the acts. However. the court agreed whole
heartedly with the decision of the jury that it did not
in any way impede his ability to form the specific
intent for those crimes, nor was this any degree of
insanity which effected his ability or culpability for
these crimes.’”6
There is no requirement that the petition allege that
defendant’s qualifying conditions have been diagnosed, as the
statute requires only that he “may have” suffered a qualifying
condition as a result of military service. (See § 1170.91.)
Defendant’s petition adequately alleged not only his diagnosed
conditions, but also that he may be suffering from TBI and PTSD
as a result of his military service. Furthermore, even if
defendant had been afforded a hearing his burden still would
have been to show only that he “may have” suffered from such
6 “The statute does not require the petitioner to allege that
the qualifying condition actually contributed to the commission of
the crime.” (Coleman, supra, 65 Cal.App.5th at p. 824.)
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qualifying conditions. (See Coleman, supra, 65 Cal.App.5th at
p. 823.)7
In sum, the trial court should not have weighed evidence,
found facts, or determined whether sufficient evidence supported
the allegations in the petition before holding a hearing upon the
required notice. That being said, a failure to comply with the
procedural requirements of section 1170.91 is reviewed for
prejudice under the standard of People v. Watson (1956) 46 Cal.2d
818, 836 (Watson), which requires the appellant to demonstrate a
reasonable probability that a result more favorable would have
been reached in the absence of the error. (People v. King (2020)
52 Cal.App.5th 783, 790; see Cal. Const., art. VI, § 13.)8
7 “The structure of the statute makes it clear why it uses
‘may’ rather than ‘does.’ 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. The People are
free to challenge the credibility of the petitioner’s claim.”
(Coleman, supra, 65 Cal.App.5th at p. 823.)
8 Defendant proffers no argument that he was prejudiced,
but asserts that any procedural error resulting in a denial of a
meaningful opportunity to be heard is a denial of due process
under both the federal and state constitutions. The procedure
the trial court was required to follow here was purely statutory,
and the applicable standard for state procedural error is the
Watson standard. (See People v. Golston (1986) 188 Cal.App.3d
346, 354, citing Chapman v. California (1967) 386 U.S. 18, 21.)
8
Defendant does not claim that a different result would be
reasonably probable if a hearing had been held. Instead he
claims that he is prejudiced by his counsel’s inability to counter
the People’s argument and the trial court’s finding that
defendant was ineligible for relief under section 1170.91,
subdivision (b)(1)(A) because the sentencing court considered the
alleged military circumstances as a factor in mitigation.
Defendant explains that although his motion to augment was
granted by this court, the superior court reported that it could not
locate a copy of the reporter’s transcript of the sentencing hearing
and the reporter’s notes had been destroyed. He complains that
both the People and the trial court have cited portions of the
sentencing transcript that was not provided to his appellate
counsel. Defendant thus requests that the People be ordered to
provide copies of all cited documents. Defendant also asks that
the trial court’s order be reversed and remanded with directions
to the superior court to appoint counsel for defendant, to hold a
public hearing on defendant’s petition, and to provide copies of
the transcripts it relied upon to all parties.
“Defendant is entitled to a record ‘adequate to permit
meaningful appellate review.’” (People v. Osband (1996) 13
Cal.4th 622, 663.) However, “‘“reversal is indicated only where
critical evidence or a substantial part of a [record] is irretrievably
lost or destroyed, and there is no alternative way to provide an
adequate record so that the appellate court may pass upon the
question sought to be raised.”’” (People v. Galland (2008) 45
Cal.4th 354, 370.)
Defendant has failed to demonstrate that the destroyed
record is irretrievably lost opining that the People must have a
copy of the original reporter’s transcript. Defendant has also
9
failed to demonstrate that there is no alternate way to provide a
record that is adequate for this appeal. The entry in the public
docket for appeal No. B061637, shows that a letter was sent to
defendant on February 11, 2014, informing him that the
appellate record in that case was destroyed.9 The court reporter’s
declaration regarding the destruction of notes and her inability to
provide the sentencing transcript was filed March 12, 2021.
Defendant’s opening brief was filed two months later. Defendant
does not claim to have attempted to obtain a settled statement or
otherwise sought to reconstruct the record, or even to have
contacted the People after the filing of the respondent’s brief in
this appeal, which contains quotes from the reporter’s transcript.
Moreover it is defendant’s “burden . . . to show that the
deficiencies in the record are prejudicial to him.” (People v.
Osband, supra, 13 Cal.4th at p. 663.) Defendant’s only claim of
prejudice is that the missing record was necessary to counter the
People’s argument and the trial court’s finding that the
sentencing court considered the alleged military circumstances as
a factor in mitigation, thus making defendant ineligible for under
section 1170.91, subdivision (b)(1)(A). We have denied the
People’s request for judicial notice of the record in Socha I10 and
have held that the trial court erred in making findings based on
its review of the record. We have also held above that defendant
was not required to allege evidentiary facts in his section 1170.91
9 See docket for Socha I, supra, B061637 at [as
of Dec. 3, 2021], archived at .)
10 See footnote 4, ante.
10
petition. (See Coleman, supra, 65 Cal.App.5th at p. 823.) Thus
we disregard the People’s argument and the trial court’s finding,
and for purposes of this discussion we assume that the
sentencing court did not consider the alleged conditions resulting
from defendant’s military service.
The trial court reviewed the appellate opinion in Socha I,
which has been preserved, and quoted part of the opinion’s
discussion of the aggravating factors that justified consecutive
sentences in this case. We find the opinion adequate to permit
meaningful appellate review, as it demonstrates that the
erroneous summary denial of defendant’s petition was harmless.
The trial court summed up its ruling with the following quote
from the opinion in Socha I, supra, B061637:
“[Defendant’s] crimes evidenced a viciousness
and callousness going far beyond the cruelty involved
in cutting his victims’ skin and hair, or carving
crosses on their backs, arms and legs; he additionally
humiliated and degraded his victims by forcing them
to play ‘games’ and engage in painful sexual acts, and
by abandoning them, naked, in public streets and
alleys.”
“[Defendant’s] 117-year sentence was, without
question, well deserved. Under the circumstances,
remand for resentencing would amount to nothing
more than a ‘ritualistic exercise.’”
Although the trial court seemingly misunderstood the scope
of its discretion the quote from Socha I made clear that there is
no reasonable probability that the trial court would exercise its
discretion to resentence defendant or even to convene a
resentencing hearing if it had granted the petition. Under such
circumstances reversal and remand are unwarranted. (See
People v. Bell (2020) 47 Cal.App.5th 153, 198-199; People v.
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McVey (2018) 24 Cal.App.5th 405, 418; People v. McDaniels
(2018) 22 Cal.App.5th 420, 425.)
We conclude that defendant has not met his burden to show
prejudice under the standard of Watson, supra, 46 Cal.2d at page
836.
DISPOSITION
The order denying the section 1170.91 petition is affirmed.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
ASHMANN-GERST, J.
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