People v. Hickman

1

THE PEOPLE, Plaintiff and Respondent, v. JOE DENNIS HICKMAN, Defendant and Appellant.

B326553

California Court of Appeals, Second District, Third Division

September 9, 2024

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Los Angeles County No. MA054466 Daviann L. Mitchell, Judge. Affirmed with directions.

Richard Lennon and Alice Newman, under appointments by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General Idan Ivri and Jonathan J. Kline, Deputy Attorneys General for Plaintiff and Respondent.

BERSHON, J. ^[*]

In 2014, Joe Dennis Hickman pleaded no contest to one count of voluntary manslaughter and five counts of felony child abuse resulting in great bodily injury. He successfully petitioned for resentencing under former Penal Code section 1170.95.^[1]Hickman now appeals from the trial court judgment entered after he was resentenced. We conclude Hickman has not established the trial court abused its discretion or committed reversible error. However, we agree with the parties that the abstract of judgment is inconsistent with the court's oral pronouncement of sentence. We therefore affirm with directions to amend the abstract of judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying proceedings

In March 2012, the People filed an information alleging Hickman and Jennifer Zolorzano murdered Zolorzano's son Deshawn Z., assaulted Deshawn resulting in his death, and committed child abuse likely to produce great bodily injury and death.

In May 2014, Hickman accepted a plea offer. The People amended the information to add allegations that Hickman committed voluntary manslaughter on or about October 29, 2011 (§ 192, subd. (a); count 4) and five counts of felony child abuse (§ 273, subd. (a); counts 5-9). The court suggested clarifying separate date ranges for the five counts of child abuse, and the parties agreed. Hickman pleaded no contest to the six new counts, and the People dismissed the three initial charges against him. Hickman also admitted allegations that each felony child abuse count caused great bodily injury to a child under five (§ 12022.7, subd. (d)).

In August 2014, the trial court sentenced Hickman to an aggregate term of 26 years, consisting of 11 years for the manslaughter conviction and five consecutive sentences of three years for each felony child abuse conviction and their respective enhancements.

In February 2021, the court held a Franklin^[2] hearing, allowing Hickman to preserve youth-related evidence for future parole hearings. According to the testimony of Hickman's relatives, Hickman was neglected, abused, and kicked out of his home in his youth. His stepfather punished, beat, and spanked him, and destroyed his clothes. Hickman's mother prioritized his stepfather such that Hickman "never really had the love from his mother that a normal kid growing up would have." Hickman's aunt and mother believed he was molested and sexually assaulted by his stepsiblings in his youth. However, according to his mother's testimony at the Franklin hearing, despite his traumatic childhood and lack of supportive parenting, Hickman "never smoked [weed], never [drank] beer, whiskey, nothing .... He never gangbang[ed]," and would not "hurt a fly."

Hickman's petition for resentencing

In March 2022, Hickman filed a pro per petition for resentencing under section 1172.6, alleging he could not presently be convicted of manslaughter because of changes to sections 188 and 189. The trial court concluded Hickman made a prima facie case that he was eligible to be resentenced. It appointed counsel for Hickman, scheduled a hearing on the matter, and ordered the People to submit briefing on whether the requested relief should be granted.

The People conceded Hickman was eligible for resentencing. The court granted Hickman's petition and vacated his manslaughter sentence. It ordered the parties to submit sentencing memoranda and scheduled a resentencing hearing.

In their sentencing memorandum, the People argued count 5, the first felony child abuse conviction, should be designated as the principal term. The People asked the court to impose the upper term of six years on that count plus six years for the associated great bodily injury enhancement. The People also asked the court to redesignate the manslaughter charge to its target offense, which they argued was a separate uncharged count of felony child abuse. The People requested that the court sentence Hickman to 16 months on the redesignated target offense. The People did not seek any change to the remainder of Hickman's sentence.

Hickman's sentencing memorandum conceded he hit Deshawn with his hand, a belt, a flip-flop, and a stick. However, he argued Zolorzano was more culpable for Deshawn's death.^[3] Hickman cited evidence that Deshawn was dehydrated, malnourished, suffered from intravascular sickling, and was severely underweight; and that dehydration alone may have caused Deshawn's death.^[4] Hickman contended these maladies were Zolorzano's fault because she was Deshawn's legal and biological mother, while Hickman was merely Zolorzano's cohabiting boyfriend. Hickman argued it would be unfair for Zolorzano, who had been recently released after successfully petitioning for resentencing, to be free while he remained imprisoned. Hickman therefore asked the court to impose a low term sentence for the redesignated target offense under section 1172.6, subdivision (e). He asked that all other counts and allegations be dismissed pursuant to section 1385, served concurrently, or stayed; or, alternatively, he requested probation on the remaining counts.

At the October 2022 resentencing hearing, Hickman's uncle told the court he would have a loving family and support system if released. Hickman told the court that he took "full responsibility for what [he had] done." He stated he was taking anger management classes and was participating in Alcoholics Anonymous and Narcotics Anonymous. Hickman also reported he was working toward taking his general equivalency development test (an alternative to a high school had not completed the program in the 11 years he had been incarcerated.^[5]

In imposing its sentence, the court considered the probation report, its own familiarity with the case, evidence presented at the Franklin hearing, and the support system described by Hickman's uncle who testified during the resentencing hearing. The court recognized it was unclear who was responsible for Deshawn's death but it believed Hickman and Zolorzano were both culpable, particularly since they both admitted to physically abusing Deshawn. The court specifically noted that Hickman initially denied abusing Deshawn, but later conceded hitting the child on the day he died. It also noted Hickman had admitted to punching Deshawn and hitting the child with a stick and other objects in the past. The court was particularly concerned that Hickman admitted that he encouraged Deshawn's sister to "sock" the child, because "he act[ed] too much like a girl," and Hickman did not want Deshawn "to grow up to be gay." The court believed that Hickman acknowledged punching Deshawn in the face "so he won't be gay." The court rejected Hickman's counsel's argument that these statements may have been made in jest or suggested by the interviewing detective. The court also found that Hickman "now has a support system that he did not have"^[6]when he committed the crimes, and specifically referenced his age at the time he committed the crimes: "[P]eople at 20 are not the same people as they are at 30."

The court imposed an aggregate sentence of 19 years four months. The court selected count 5, the first felony child abuse conviction, as the principal term. It imposed a sentence of 12 years, consisting of the upper term of six years on the base charge plus the upper term of six years for the section 12022.7, subdivision (d) enhancement. This sentence was based on the court's finding that Deshawn "was very vulnerable" because of his young age, which the court concluded was an aggravating circumstance justifying the upper term.^[7]

The court redesignated Hickman's manslaughter conviction to an additional felony child abuse charge, and imposed a consecutive sentence of 16 months, i.e., one-third the middle term sentence. On counts 6 and 7, the court imposed consecutive sentences of three years each, based on one-third the middle term sentence for each conviction and great bodily injury enhancement. Finally, for counts 8 and 9, the court sentenced Hickman to concurrent eight-year terms, based on the four-year middle term on the charged offense and the four-year lower term on each great bodily injury enhancement. The court explained that it selected the middle term on the base term because the convictions were based on multiple incidents over a long time period, and the lower term on the great bodily injury enhancements were appropriate because "some of the other abuses did not, perhaps, rise to the higher level warranting a higher term ...." Hickman did not object to any aspect of the sentence.

Hickman timely appealed.

DISCUSSION

I. Senate Bill Nos. 1437 and Section 1172.6

Senate Bill No. 1437 (2017-2018 Reg. Sess.) eliminated the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder and limited the scope of the felony murder rule. (People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong); People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile).) The bill amended section 188 by adding the requirement that, except as stated in section 189 subdivision (e), "to be convicted of murder, a principal in a...