People v. Moseley CA4/3 ( 2024 )

Filed 10/8/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G062697
v. (Super. Ct. No. 17NF0208)
FRANK MOSELEY, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Kimberly Menninger, Judge. Affirmed in part. Reversed in part. Remanded
with directions.
Paul R. Kraus, 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,
Christopher Beesley and Daniel Rogers, Deputy Attorneys General, for
Plaintiff and Respondent.
* * *
A trial court “shall consider” a criminal defendant’s service-
related posttraumatic stress disorder (PTSD) as a factor in mitigation when
deciding whether to grant probation and when deciding on the appropriate
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sentence. (Pen. Code, §§ 1170.9, subd. (b)(1), 1170.91, subd. (a).)
Here, the People charged Frank Moseley with murder. Moseley
testified at trial that he killed his fiancé after she told him she was pregnant
with another man’s child. Moseley further testified he was a combat veteran
with PTSD. The jury found Moseley guilty of the lesser included offense of
voluntary manslaughter (heat of passion).
Prior to sentencing, the probation department submitted a report
without citing the relevant service-related statutes (§§ 1170.9 and 1170.91).
The prosecution and the defense both filed sentencing briefs, but neither
party’s brief cited the relevant statutes. At the sentencing hearing, Moseley’s
counsel mentioned sections 1170.9 and 1170.91, but he inexplicably said they
were not “directly applicable.” When imposing a sentence, the trial court
referred to Moseley’s PTSD as a factor in mitigation, but the court did not
refer to that factor when denying probation.
In sum, it does not appear that the trial court expressly
considered sections 1170.9 and 1170.91 at sentencing. Therefore, given this
ambiguity, we are reversing Moseley’s sentence and remanding the matter
for resentencing. In all other respects, the judgment is affirmed.
We are certifying this opinion for publication to emphasize that
trial courts have mandatory statutory obligations when sentencing qualifying
veteran defendants, or current members of the United States military. (See
§§ 1170.9, 1170.91; see also Cal. Rules of Court, rule 8.1105(c)(6).)
1
Further undesignated references are to the Penal Code.
2
I.
FACTS AND PROCEDURAL BACKGROUND
Moseley killed his fiancé in their apartment by stabbing her with
a knife. Moseley fled the scene in a truck and eventually cut off a police
vehicle. Moseley approached the police vehicle and attempted to get the
officer to shoot him (suicide by cop). In an interview at the police station,
Moseley told a detective that he had stabbed his fiancé after she told him
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that she might be pregnant with another man’s baby.
The People charged Moseley with murder and a weapon
enhancement. During the trial, Moseley testified that he had been previously
deployed to Iraq. Moseley was subjected to enemy attacks by improvised
explosive devices and rocket fire. Moseley was later diagnosed with PTSD. A
psychologist opined Moseley’s PTSD was a contributing factor to the crime.
The jury found Moseley not guilty of murder, but guilty of
voluntary manslaughter (heat of passion) as a lesser included offense. The
jury found true the weapon allegation.
The trial court sentenced Moseley to the upper term of 11 years
in state prison, and struck the additional punishment for the personal use of
a weapon (the sentencing proceedings will be covered in greater detail in the
discussion section of this opinion).
Moseley filed a notice of appeal. Moseley’s appointed counsel filed
an opening brief raising no arguable issues. (See People v. Wende (1979) 25
Cal.3d 436.) After independently reviewing the record, this court requested
further briefing as to sections 1170.9 and 1170.91.
2
Only Moseley’s sentence is being challenged in this appeal, so
we need not fully explain in detail the underlying facts.
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II.
DISCUSSION
Moseley argues the trial court did not expressly consider his
service related health condition (PTSD) when denying probation (§ 1170.9)
and/or when imposing the upper term sentence (§ 1170.91).
We consider a trial court’s sentencing decisions under an abuse of
discretion standard of review. (People v. Fredrickson (2023) 90 Cal.App.5th
984, 988.) “When a court is unaware of its discretion, the remedy is to
remand for resentencing unless the record clearly indicates that the trial
court would have reached the same conclusion if it had been aware of its
discretion.” (People v. Barber (2020) 55 Cal.App.5th 787, 814.)
In the remainder of this discussion, we shall: A) state relevant
principles of law; B) summarize what occurred at the sentencing proceedings
in this case; and C) analyze the law as applied to the relevant facts.
A. Relevant Legal Principles
Section 1170.9, subdivision (a), provides: “In the case of any
person convicted of a criminal offense who . . . alleges that the person
committed the offense as a result of sexual trauma, traumatic brain injury,
[PTSD], substance abuse, or mental health problems 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
sexual trauma, traumatic brain injury, [PTSD], substance abuse, or mental
health problems as a result of the person’s service. The court may request,
through existing resources, an assessment to aid in that determination.”
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Section 1170.9, subdivision (b)(1), further provides: “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.”
Section 1170.91, subdivision (a) provides: “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 sexual trauma, traumatic
brain injury, [PTSD], substance abuse, or mental health problems as a result
of the defendant’s military service, the court shall consider the circumstance
as a factor in mitigation when imposing a sentence.”
Sections 1170.9 and 1170.91 “speak in terms that are mandatory
rather than permissive.” (People v. Panozo (2021) 59 Cal.App.5th 825, 836
(Panozo).) “By their plain language, sections 1170.9 and 1170.91
unambiguously obligate a sentencing court to consider a defendant’s service-
related PTSD, substance abuse, or other qualifying conditions in making
discretionary sentencing choices.” (Ibid.)
“Sections 1170.9 and 1170.91 obligate a court to consider a
defendant’s service-related mental health issues, including PTSD, as a
mitigating factor in evaluating whether to grant probation and in selecting
the appropriate determinate term.” (Panozo, supra, 59 Cal.App.5th at p. 828.)
A remand is required when the record is ambiguous as to
whether a trial court was aware of its mandatory obligations under sections
1170.9 and 1170.91. (Panozo, supra, 59 Cal.App.5th at pp. 837–841; see also
People v. Ochoa (2020) 53 Cal.App.5th 841, 853 [remand required where
record is ambiguous concerning court’s compliance with statutory obligation
to consider youth-related mitigating factors at sentencing].)
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B. Sentencing Proceedings
Prior to the sentencing hearing, the People filed a sentencing
brief. The People noted Moseley was presumptively ineligible for probation,
but acknowledged probation could be granted if the court found a grant of
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probation would be in the interests of justice. The People urged the court to
impose the upper term (11 years), arguing the aggravating sentencing factors
outweighed the mitigating factors.
The People’s sentencing brief did not mention Moseley’s service-
related PTSD as a factor in mitigation, nor did it cite sections 1170.9 or
1170.91 anywhere in the brief.
Moseley also filed a sentencing brief. Moseley went through the
criteria affecting the grant of probation. (See Cal. Rules of Court, rule 4.414
[“Criteria affecting the decision to grant or deny probation”].) Moseley’s brief
also went through the criteria affecting the appropriate prison sentence. (See
Cal. Rules of Court, rules 4.421 [Circumstances in aggravation], 4.423
[Circumstances in mitigation].)
Moseley’s sentencing brief did not mention his service-related
PTSD as a factor in mitigation, nor did it cite sections 1170.9 or 1170.91
anywhere in the brief.
The probation department filed a sentencing report, noting
Moseley was a veteran with PTSD. The report stated Moseley’s criminal
3
There appears to be no dispute that the trial court could have
granted Moseley probation if the court made a finding that it would be in the
interests of justice: “Except in unusual cases in which the interests of justice
would best be served if the person is granted probation, probation shall not be
granted to . . . : [¶] Any person who used, or attempted to use, a deadly
weapon upon a human being in connection with the perpetration of the crime
of which that person has been convicted.” (§ 1203, subd. (e)(2), italics added.)
.
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record, which was only three traffic cases and one case involving narcotics
(Moseley had successfully completed formal probation with no violations).
The department listed the circumstances in aggravation and mitigation as to
the selection of the appropriate prison term, but did not list any criteria as to
the granting of probation. The report stated Moseley “is only eligible for a
grant of probation if the Court finds this is an unusual case and the interests
of justice would best be served by granting probation. A review of the unusual
circumstances does not reveal any such circumstances.”
The probation department’s sentencing report did not mention
Moseley’s service-related PTSD as a factor in mitigation, nor did it cite
sections 1170.9 or 1170.91 anywhere in the report.4
At the sentencing hearing, the prosecution submitted on its brief.
Moseley’s counsel said, “Your Honor, the defense will also submit on it’s brief,
but I would like to augment it citing to Penal Code sections 1170.9 and
1170.91. [¶] While I don’t think that those code sections are directly
applicable, I do think that they provide some guidance with regard to
additional factors in mitigation.” (Italics added.)
After hearing testimony from Moseley and further arguments,
and considering several victim impact statements, the trial court said: “Okay.
Well, this is an interesting case. We heard lots of evidence about the violence,
and this was one of the most violent murders I’ve ever seen. [¶] And then we
heard a whole lot about [PTSD], particularly when you were a veteran and
what the defendant has gone through.”
4
The probation department prepares sentencing reports at the
direction of the court. (§ 1203.10, subd. (a).)
7
The trial court went through the aggravating and mitigating
factors related to the imposition of sentence. As to mitigating factors, the
court said, “Defendant was suffering from a mental condition that
significantly reduced culpability for the crime. And in this case that would be
PTSD. There was significant evidence that was presented on that topic.”
However, the court found that the aggravating factors outweighed the
mitigating factors and imposed the upper term sentence (11 years). “As for
probation, the court is aware the court has the right and ability to choose
probation. The court finds this is not an appropriate case for probation.”
The trial court did not mention sections 1170.9 or 1170.91 at any
point during the sentencing hearing.
C. Application and Analysis
In Panozo, a jury convicted defendant Panozo of domestic violence
crimes. (Panozo, supra, 59 Cal.App.5th at p. 828.) Prior to sentencing, Panozo
filed a brief which included a letter from a psychiatrist indicating a diagnosis
of service-related PTSD. (Id. at p. 829.) The People also filed a sentencing
brief, indicating “Panozo was presumptively ineligible for probation.” (Id. at
p. 830.) The probation department separately filed a report recommending
this was not an unusual case warranting probation. (Ibid.) The written
documents “nor the argument referenced sections 1170.9 or 1170.91.” (Id. at
p. 838.) The trial court sentenced Panozo to the midterm. (Id. at p. 831.) On
appeal, Panozo maintained “the trial court was unaware of its statutory
obligation to consider his service-related” PTSD and remand was required to
address the error. (Id. at p. 828.) The Court of Appeal agreed. The court
reversed the sentence, and remanded the matter for resentencing. (Ibid.)
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“A careful review of the sentencing record demonstrates that
despite ample references to Panozo’s service-related PTSD, there is no
indication the court understood its obligation to consider that fact as a
circumstance in mitigation when making discretionary sentencing choices.”
(Panozo, supra, 59 Cal.App.5th at p. 837.) “Apart from the written
submissions and arguments, the trial court’s oral pronouncements reveal no
awareness of its obligations under sections 1170.9 and 1170.91.” (Id. at p.
838.) “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.” (Id. at p. 840, italics added.)
The instant case is strikingly similar to the facts presented in
Panozo, supra, 59 Cal.App.5th 825. Our review of the record does not indicate
that the trial court understood its statutory obligations to affirmatively
consider Moseley’s service-related PTSD when imposing its choice of sentence
and/or denying probation. Sections 1170.9 and 1170.91 were not cited by
either party in their sentencing briefs. Neither were sections 1170.9 and
1170.91 cited by the probation department in its sentencing report submitted
to the court. Indeed, Moseley’s counsel inexplicably argued: “I don’t think
that those code sections are directly applicable.”
The trial court mentioned Moseley’s service-related PTSD as a
factor in mitigation (a mental condition) when making its decision between
the lower, middle, or upper term sentence. (See Cal. Rules of Court, rule
4.423(b)(2) [“The defendant was suffering from a mental or physical condition
that significantly reduced culpability for the crime”].) However, there was no
explicit mention of section 1170.91. Further, the court also did not explicitly
mention section 1170.9 at any point during the sentencing hearing. And
perhaps most importantly, the court did not mention—nor did it apparently
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consider—Moseley’s service-related PTSD as a factor in favor of granting
probation when the court ultimately made its decision to deny probation. (See
§ 1170.9, subd. (b)(1) [“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”], italics added.)
In sum, the record on appeal in this case similarly “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.” (Panozo, supra, 59 Cal.App.5th at p. 840, italics added.)
The Attorney General argues, “the record here affirmatively
demonstrates that the trial court was aware of its statutory obligations under
section 1170.9 and 1170.91 and did, in fact, consider appellant’s service-
related PTSD as a mitigating factor both in its decision as to whether to
grant probation and at sentencing.” We disagree.
The Attorney General’s argument is belied by the record. The
trial court did not mention sections 1170.9 and/or 1170.91 at any point during
the sentencing hearing. And while the court did mention Moseley’s PTSD
before choosing the upper term sentence, that cannot be said of the court’s
decision to deny probation.
As in Panozo, we find it is appropriate to remand the matter to
the trial court so it can exercise its informed discretion under sections 1170.9
and 1170.91. (See Panozo, supra, 59 Cal.App.5th 837–841 [a remand is
required when the record is ambiguous as to whether a court was aware of its
mandatory “obligations under sections 1170.9 and 1170.91”]; see also
§ 1260 [an appellate court may “remand the cause to the trial court for such
further proceedings as may be just under the circumstances”].)
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III.
DISPOSITION
The sentence is reversed. The trial court is directed to resentence
Moseley consistent with its statutory obligations. (See §§ 1170.9, 1170.91.) In
all other respects, the judgment is affirmed.
MOORE, ACTING P. J.
WE CONCUR:
GOETHALS, J.
SANCHEZ, J.
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