People v. Blessett

1

THE PEOPLE, Plaintiff and Respondent, v. ANTOINE LAMAR BLESSETT, Defendant and Appellant.

C098092

California Court of Appeals, Third District, Sacramento

September 9, 2024

NOT TO BE PUBLISHED

(Super. Ct. No. 12F01121)

DUARTE, J.

Defendant Antoine Lamar Blessett appeals from his resentencing following remand from his prior appeal. He contends the court improperly limited his resentencing to the issues specifically identified in our remand instructions. He also claims his trial counsel was ineffective at arguing for a lower sentence. Finding no merit to these contentions, we affirm the judgment. The trial court is directed to prepare new abstracts of judgment as detailed in the Disposition.

FACTS AND PROCEEDINGS

The procedural history of defendant's first appeal is fully set forth in our prior opinion, People v. Blessett (Jan. 26, 2022, C074267) (nonpub. opn.). We summarize only the facts and history relevant to the present matter.

In 2013, a jury found defendant guilty of first degree murder (Pen. Code, § 187, subd. (a))^[1] and possession of a firearm by a felon (§ 29800, subd. (a)). As to the murder, the jury found defendant: (1) personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)); (2) personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)); and (3) committed the murder for the benefit of a street gang (§ 186.22, subd (b)(1)).

At sentencing, the trial court denied defendant's Romero motion. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The court sentenced defendant to 25 years to life in prison for the murder (doubled to 50 years to life due to the prior strike), 25 years to life for the section 12022.53, subdivision (d) firearm enhancement, and 10 years for the gang enhancement. The court imposed the middle term of two years for the firearm possession conviction and stayed execution of that sentence.^[2] The court also stayed imposition of sentence for the remaining firearm enhancements.

Defendant appealed, and another panel of this court concluded that certain gang expert testimony should not have been admitted at trial. (People v. Blessett, supra C074267.) Though this error was harmless beyond a reasonable doubt as to the first degree murder verdict, the firearm possession verdict, and the firearm enhancement findings, the error compelled reversal of the gang enhancement finding. (Ibid.) We further concluded that: (1) the trial court erred in staying imposition of the sentence on the section 12022.5, subdivision (a) and 12022.53, subdivision (b) firearm enhancements; and (2) Senate Bill No. 620 (2017-2018 Reg. Sess.) applied retroactively and permitted the trial court to strike the firearm enhancements in this case. (People v. Blessett, supra, C074267.) We instructed that on remand "[t]he trial court will resentence defendant, where it is further directed to (1) consider whether to exercise its discretion to strike the section 12022.5, subdivision (a) and 12022.53, subdivision (b) firearm enhancements, and, in the event that the court declines to exercise its discretion to strike them (2) impose sentences on these enhancements and then stay execution of those sentences." (Ibid.)

One justice dissented in part, disagreeing that the inadmissible gang expert testimony was harmless beyond a reasonable doubt as to the murder conviction and firearm enhancements. (People v. Blessett, supra, C074267 (conc. &dis. opn. of Blease, J.).) Our Supreme Court denied defendant's petition for review. Justice Groban issued a dissenting statement saying he would grant review because there were significant questions as to whether the erroneous admission of gang evidence was harmless as to the murder conviction. (People v. Blessett, supra, C074267, review den. May 25, 2022, S273349 (dis. statement of Groban, J.).)

On remand, the trial court invited argument on whether it should strike the firearm enhancements "including the one that [it] pronounced sentence on, [section] 12022.53[, subdivision ](d)." Defense counsel argued that the court should "strike all the enhancements because [they] are essentially duplicative of the charges." He also pointed out "the new provisions under Penal Code [section] 1385," which "list[] the various reasons why it is in the interest of justice to strike enhancements."

The trial court ultimately declined to strike the firearm enhancements. After the court issued its decision, defendant said he believed "the information" the court had was "invalid," noting how he "wasn't given the right to speak at [his] trial." The court responded: "Your appellate attorney raised a lot of issues. The one that was meritorious was the gang [sic] because, frankly, the law changed.... [¶] So that Penal Code Section 186.2[, subdivision ](b)(1) is going to be struck....The only other issue before me is whether I should exercise my discretion to strike the firearm enhancement. That's it." "So the only issue for me is not the merits of your case. That was already litigated at trial. That was already litigated in your appeal. And as I said, your appellate lawyer raised a lot of issues. 93 pages worth of discussions by the appellate court. So they made their findings and their rulings. [¶] The only ones essentially that have merit was the gang [sic], and it is because the law changed. So if you need further clarification then your attorney would contact you after this hearing, but there is no need to delay this because that's the only issue before me."

The trial court sentenced defendant to 50 years to life in prison for murder and 25 years to life for the section 12022.53, subdivision (d) firearm enhancement. The court imposed the middle term of four years for the section 12022.5, subdivision (a) firearm enhancement and 10 years for the section 12022.53, subdivision (b) firearm enhancement, but stayed execution of both of those sentences. Lastly, the court sentenced defendant to four years (double the middle term due to the prior strike) for the firearm possession conviction and stayed that term under section 654. In doing so, the court remarked that it was imposing the four-year sentence at resentencing due to the prior strike.

Defendant timely appealed. In his notice of appeal, defendant indicated the appeal was from the denial of a section 1172.6 petition. Defendant subsequently petitioned for leave to file an amended notice of appeal to include his resentencing hearing. We treated this petition as a motion to construe the appeal as encompassing the resentencing proceedings and granted the motion.

DISCUSSION

I Full Resentencing

Defendant argues the trial court improperly confined the resentencing hearing "to the matters identified in this Court's remand orders" even though he was entitled to a full resentencing hearing.

It is well established that "when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.'" (People v. Buycks (2018) 5 Cal.5th 857, 893.) The People do not dispute that the full resentencing rule applied here but submit that defendant has forfeited his claim by not raising it below. We agree. "[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott (1994) 9 Cal.4th 331 356.) Defendant never objected that the court improperly limited the resentencing hearing to only the issues identified in our remand order. Nor did defendant request that other aspects of his prior sentence be reexamined at the resentencing. Defendant maintains that doing so would have been futile. We are not convinced. Alerting the court to the perceived problem would have permitted the court to address the scope of its discretion and more precisely describe the issues it was considering.

In any event, the record indicates the trial court was aware of its sentencing discretion. Absent evidence to the contrary, we presume the trial court knew and followed the law. (People v. Ramirez (2021) 10 Cal.5th 983, 1042.) Defendant insists this presumption is rebutted here because the court indicated that the "only issue" to be addressed was whether to strike the firearm enhancements. We reject this reading of the record. As we set forth above, from the conversation between the court and defendant, it is clear that the court was responding to defendant's claim that his underlying trial had been unfair. Considered in context, the court's comments conveyed that the purpose of the hear was not to relitigate defendant's guilt but to resentence him. The court made this clear by saying, "the only issue for me is not the merits of your case. That was already litigated at trial."

Moreover, contrary to defendant's contention, the trial court did not limit the hearing to the matters identified in our remand order. In inviting argument, the court asked the parties to address whether it should strike the section 12022.53, subdivision (d) enhancement--an enhancement that our remand order did not specifically direct the trial court to consider. The court also imposed a stayed sentence of four years (as opposed to the original stayed term of two years) on the firearm possession conviction, taking into account defendant's prior strike.^[3] The court thus understood it had the discretion to consider all aspects of defendant's sentence. Defendant's (forfeited) claim to the contrary lacks merit.

II Ineffective Assistance of Counsel

Defendant next claims his counsel was ineffective for failing to raise other issues at resentencing. More specifically, defendant argues his trial co...