People v. Tilley

Filed 6/20/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, C096411
Plaintiff and Respondent, (Super. Ct. No. 20CF05106)
v.
ERNEST SAMUEL TILLEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Butte County, Kristen A.
Lucena, Judge. Affirmed.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Dina
Petrushenko, Deputy Attorneys General, for Plaintiff and Respondent.
1
After defendant Ernest Samuel Tilley pled no contest to robbery (Pen. Code,
§ 211)1 and admitted a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d)), the trial court sentenced him to the middle term, doubled pursuant to the
strike. On appeal defendant contends: (1) the trial court abused its discretion in
imposing the middle term, because the court did not consider defendant’s mental health
problems in accordance with section 1170, subdivision (b)(6); (2) if that claim is
forfeited, he received ineffective assistance of counsel; and (3) the judgment must be
modified, as the trial court improperly advised defendant as to the parole consequences of
his plea. We will affirm the judgment.
BACKGROUND
Defendant went to a Tractor Supply store and walked out with several items of
merchandise without paying for them. An employee confronted defendant as he left the
store and told him to return the merchandise. Defendant did not comply. Instead, he
grabbed the employee, pushed her against the wall, and again tried to leave. The
employee tried to retrieve the merchandise from defendant, and he threatened to kill her
if she did not stop. She stopped and let him leave the store. Law enforcement officers
later found defendant with approximately $200 of property stolen from the store in his
backpack, as well as property stolen from another store on a different date. Defendant
also was convicted in 2019 of assault with a deadly weapon. (§ 245, subd. (a)(1).)
The People charged defendant with second degree robbery (§ 211; count 1),
criminal threats (§ 422, subd. (a); count 2), and misdemeanor possession of stolen
property (§ 496, subd. (a); count 3). They further alleged that defendant had two prior
strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and two prior serious
felony convictions (§ 667, subd. (a)).
1 Undesignated statutory references are to the Penal Code.
2
Following a competency evaluation and hearing, the trial court declared defendant
incompetent, placed him in a state hospital, and suspended criminal proceedings.
Approximately six months later, the trial court ordered defendant restored to competence
and reinstated criminal proceedings.
Defendant pled no contest to second degree robbery and admitted the 2019 prior
strike conviction in exchange for a maximum sentence of 10 years and dismissal of the
remaining charges. Pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th
497 and section 1385, defendant made a motion for the court to exercise its discretion to
dismiss the prior strike for purposes of sentencing. In making this argument, in both the
motion and at the sentencing hearing, counsel argued defendant suffered from mental
health problems at the time the crime was committed, and both the employee and police
officer believed defendant “was acting strange and not making any sense.” Counsel also
noted defendant’s history of mental health problems had contributed to his criminal
behavior, and asserted defendant’s current crime was due to his “mental health and
financial situation.” Defense counsel also asked the court to consider imposing the lower
term given the minor injuries to the employee and that the value of the property taken
was not substantial. The People acknowledged defendant’s mental health problems and
agreed that, in light of those problems, an upper term sentence was not warranted, but
argued those problems did not mitigate the term to the lower term in view of the
“troubling experience” of the employees of the store.
The probation report reflected defendant was diagnosed with paranoid
schizophrenia approximately 37 years before the current offense, had participated in
mental health services, and had been prescribed medication but had not taken it for
several years. Defendant admitted to the probation department investigator that he was
under the influence of methamphetamine at the time of the offense. The probation report
concluded there were no mitigating factors, but as aggravating factors had not been pled
3
and proven “Senate Bill [No.] 567 would appear to constrain the Court to the middle
term.”
The trial court denied the motion to strike finding, based on his lengthy and
serious prior criminal history, that defendant came within the spirit of the three strikes
law. The trial court then considered striking the strike under section 1385, subdivision
(c).2 Although the court acknowledged defendant had some mental health conditions, it
concluded the current offense was not directly related to mental illness, and declined to
strike the prior strike conviction under section 1385, subdivision (c).
In determining the appropriate term to impose, the trial court noted that none of
the aggravating factors had been found in compliance with section 1170, subdivision
(b)(2), so it could not impose a sentence greater than the middle term. The court also
expressly considered defendant’s mental illness and found his mental health condition
was a mitigating factor. After balancing the factors, the court sentenced defendant to the
middle term of three years, doubled pursuant to the strike. The court imposed various
fines and fees, and awarded defendant 706 days of presentence custody credit. The trial
court also advised defendant, pursuant to section 3000, subdivision (b), that he would be
on parole for three years following his release from custody.
2 We recently held under the statute’s plain language, section 1385, subdivision (c)
applies to enhancements. A prior strike conviction is not an enhancement but part of an
alternative sentencing scheme. Accordingly, section 1385, subdivision (c) does not apply
to prior strike convictions. (People v. Burke (2023) 89 Cal.App.5th 237, 242-244.)
4
DISCUSSION
I
Defendant contends the trial court abused its discretion by imposing the middle
term, as it did not make any “apparent allusion to the mandate of Assembly Bill
[No.] 124,”3 which required the court to impose the lesser term if the person has
experienced psychological, physical, or childhood trauma. (§ 1170, subd. (b)(6)(A).) He
claims the court made no “meaningful analysis of [defendant’s] mental condition, nor
whether the imposition of the lower term would be contrary to the interests of justice.”
Anticipating our conclusion that this argument was forfeited, defendant alternatively
argues his trial counsel rendered ineffective assistance by failing to object to the middle
term sentence.
Senate Bill No. 567 became effective, January 1, 2022, approximately four months
prior to defendant’s sentencing. As relevant here, Senate Bill No. 567, codified in section
1170, subdivision (b)(6), created a presumption in favor of the lower term if a
defendant’s psychological, physical, or childhood trauma contributed to the commission
of the offense. (§ 1170, subd. (b)(6).) Section 1170, subdivision (b)(6) does not require
the court to impose the lower term because of defendant’s mental illness, but for
3 The parties cite Assembly Bill No. 124 (2021-2022 Reg. Sess.) as having amended
section 1170 to add subdivision (b)(6). Section 1170, subdivision (b)(6) was added by
Senate Bill No. 567, not Assembly Bill No. 124. (Stats. 2021, ch. 731, §§ 1.3, 3, subd.
(c).) Senate Bill No. 567, Assembly Bill No. 124, and Assembly Bill No. 1540 (2021-
2022 Reg. Sess.) were all passed by the Legislature in September 2021 and approved by
the Governor on October 8, 2021. (See Stats. 2021, ch. 695, § 5 [Assembly Bill No.
124], eff. Jan. 1, 2022; Stats. 2021, ch. 719, § 2 [Assembly Bill No. 1540], eff. Jan. 1,
2022; Stats. 2021, ch. 731, § 1.3 [Senate Bill No. 567], eff. Jan. 1, 2022.) Because Senate
Bill No. 567 was the last bill signed by the Governor and bears the highest chapter
number, its amendments to section 1170 prevail over the amendments to that code section
specified in the other two bills. (Gov. Code, § 9605, subd. (b); In re Thierry S. (1977)
19 Cal.3d 727, 738-739; People v. Jones (2022) 79 Cal.App.5th 37, 45.) We will refer to
the operative bill, Senate Bill No. 567.
5
psychological trauma. While at least one court has concluded “psychological trauma
based on mental illness may be a circumstance qualifying for the lower term presumption
in section 1170, subdivision (b)(6),” that court also emphasized that mental illness alone
did not qualify for the lower term presumption. (People v. Banner (2022) 77 Cal.App.5th
226, 241 [“Psychological trauma must attend the illness, and that trauma must contribute
to the crime under section 1170, subdivision (b)(6)”].)
Generally, if a party does not object to the sentence in the trial court, they may not
claim on appeal the trial court failed to properly make or articulate its discretionary
sentencing choices. (People v. Scott (1994) 9 Cal.4th 331, 351.) Defendant did not seek
the lower term based on section 1170, subdivision (b)(6); object to the imposition of the
middle term; or argue that defendant suffered any psychological trauma as a result of
mental illness. Accordingly, this claim is forfeited.
Anticipating this conclusion, defendant contends counsel was ineffective in failing
to object to the middle term sentence. To establish ineffective assistance of counsel, a
defendant must show: (1) counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms, and (2) the deficient performance
prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-
692.) “If it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice . . . that course should be followed.” (Id. at p. 697.) It is not enough
to establish prejudice for defendant to propose that counsel’s performance had some
“conceivable effect” on the outcome; rather, defendant must show a reasonable
probability of a different result but for counsel’s errors. (Id. at pp. 693-694.) Prejudice
must be a demonstrable reality established based on facts in the record, not simply
speculation as to the effect of the errors or omissions of counsel. (People v. Williams
(1988) 44 Cal.3d 883, 933; People v. Montoya (2007) 149 Cal.App.4th 1139, 1151.)
The entirety of defendant’s argument as to the prejudice prong of Strickland is:
“[H]ad counsel objected to the middle term sentence, it is reasonably probable that the
6
trial court would have reconsidered its sentencing decision.” The claim that it is
reasonably probable the trial court would have “reconsidered its sentencing decision” had
counsel objected to the middle term is not an assertion, nor a demonstration, that there is
a reasonable probability of a different result. Nor does this speculative statement, with no
analysis, demonstrate prejudice. Defendant makes no argument on appeal that he
experienced trauma; that there was evidence of trauma the trial court failed to consider;
or that his mental illness resulted in psychological trauma. Accordingly, defendant has
failed to establish it is reasonably probable the court would have sentenced him to the
lower term if counsel had objected to the imposition of the middle term.
II
Defendant next contends the judgment must be modified to reduce the period of
parole supervision from three years to two years. The People contend there is no need to
modify the judgment, as the trial court did not set the parole term, but merely advised
defendant of the parole term. We agree with the People.
When the trial court imposes a determinate term under section 1170, it is required
to inform the defendant at sentencing that, after the expiration of their prison term, they
may be on parole for a period as provided by section 3000 or 3000.08.4 (§ 1170, subd.
(c); Cal. Rules of Court, rule 4.433(e)(1).) The trial court is also required to advise a
defendant pleading guilty to a felony that a period of parole is a direct consequence of
such a plea. (In re Moser (1993) 6 Cal.4th 342, 352-353; People v. Nuckles (2013)
56 Cal.4th 601, 609.) Although the trial court is required to advise the defendant of the
4 Section 3000.08 provides for parole supervision by the Department of Corrections and
Rehabilitation and jurisdiction of the court for defendants convicted of certain offenses or
sentenced pursuant to the three strikes law. Although section 3000.08 applies to
defendant (§ 3000.08, subd. (a)(3)), section 3000.08 does not specify a parole term
applicable to this defendant.
7
parole period, the duration and conditions of parole are established by the Legislature and
the parole authority or Department of Corrections and Rehabilitation. (People v.
Jefferson (1999) 21 Cal.4th 86, 95-96; In re Lira (2014) 58 Cal.4th 573, 584; § 3000,
subd. (b)(7); Cal. Code Regs., tit. 15, §§ 2510, 2515, subd. (a), 2525.) The sentencing
court does not have authority to set or alter the applicable term of parole so established.
(In re Moser, at p. 357; Berman v. Cate (2010) 187 Cal.App.4th 885, 898.)
In 2020, the Legislature added section 3000.01 governing the periods of parole for
individuals subject to supervision under section 3000.08, who are released from state
prison on or after July 1, 2020. (§ 3000.01, subd. (a), added by Stats. 2020, ch. 29, § 18.)
Prior to the enactment of section 3000.01, for most offenses, the maximum parole period
following a determinate sentence was three years. (People v. Jefferson, supra, 21 Cal.4th
at p. 96, citing § 3000, subd. (b).) Section 3000.01 now limits, with exceptions not
applicable here, the period of parole for an inmate serving a determinate term to two
years. (§ 3000.01, subd. (b)(1).)
We note that despite adding section 3000.01 limiting the parole term for those
released from prison on or after July 1, 2020, the Legislature did not amend the relevant
provisions of sections 3000 and 3000.08, which still provide the inmate shall be released
on parole for a period of three years. (§ 3000, subd. (b)(2)(B).) Section 1170 and
California Rules of Court, rule 4.433 still require the court to advise as to the period
delineated in section 3000, and section 3000 makes no reference to section 3000.01. The
Judicial Council forms similarly indicate the parole term is three years under section
3000, subdivision (b). These statutory inconsistencies put trial courts in a bit of a
conundrum when advising of the parole term, but as noted above, it is up to the
Legislature to amend all the relevant statutes to reflect the correct parole terms.
Relatedly, we note there may be other statutes and regulations, like California Code of
Regulations, which still indicates the relevant parole term is three years (Cal. Code Regs.,
8
tit. 15, § 2515, subd. (b)), that may need to be harmonized to reflect the new provisions of
section 3000.01.
As a general rule “ ‘a trial court is presumed to have been aware of and followed
the applicable law.’ ” (People v. Stowell (2003) 31 Cal.4th 1107, 1114.) Nothing in our
record or in the parties’ arguments suggests this ordinary presumption should not apply.
Accordingly, we presume the trial court knew it lacked authority to set the term of parole
and that it had an obligation to advise defendant he was subject to a term of parole
following the expiration of his term of imprisonment. Based on this presumption of the
trial court’s knowledge of both its obligations and the limits of its authority, we construe
the court’s statement about the parole term as an advisement of the length of the parole
term, rather than an attempt to impose a specific parole term. Since the length of the
parole term was merely an advisement, we need not modify the judgment.5
DISPOSITION
The judgment is affirmed.
/s/
BOULWARE EURIE, J.
We concur:
/s/
HULL, Acting P. J.
/s/
KRAUSE, J.
5 We also note, in the context of a plea, the remedy for a prejudicial misadvisement of
mandatory parole consequences is to allow defendant to withdraw their plea. (In re
Moser, supra, 6 Cal.4th at p. 352.) Defendant makes no claim that the misadvisement
was prejudicial. Moreover, the misadvisement here inures to defendant’s benefit, as the
parole term he is actually subject to is shorter than the advisement he was given.
9