People v. Scroggins

1

THE PEOPLE, Plaintiff and Respondent, v. JONATHAN OLIVER SCROGGINS, Defendant and Appellant.

F084113, F084665

California Court of Appeals, Fifth District

July 20, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County No MF014273A. Charles R. Brehmer, Judge.

Vanessa Place, 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, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

LEVY J.

INTRODUCTION

A jury convicted Jonathan Oliver Scroggins (appellant) of oral copulation or sexual penetration of a child 10 years of age or younger (Pen. Code,^[1] § 288.7, subd. (b); count 1), lewd act on a child under the age of 14 years (§ 288, subd (a); count 2), and possession of matter depicting a minor engaged in sexual conduct (§ 311.11, subd. (a); count 4). The trial court sentenced him to 15 years to life plus two years in state prison.

On appeal, appellant contends the trial court was unaware of its discretion to sentence him in accordance with newly enacted Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 695, § 5) and Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 441, § 1). He also claims the trial court erred in ordering restitution for relocation expenses to the victim's mother. We find no error. We affirm.

BACKGROUND

We need not discuss the facts underlying appellant's conviction in detail because they are not relevant to this appeal. In short, while babysitting his sister's children, appellant orally copulated his four-year-old niece. During the ensuing investigation, officers searched appellant's computer and discovered numerous images and videos depicting young children engaged in sexual acts.

DISCUSSION

I. The Trial Court Was Aware of its Discretion to Sentence Appellant in Accordance with Assembly Bill No. 124 and Assembly Bill No. 518.

Appellant contends he must be remanded for resentencing in light of two recent changes to California sentencing law. Assembly Bill No. 124^[2] added subdivision (b)(6)(A) to section 1170, which makes the lower term presumptive where the defendant experienced "psychological, physical, or childhood trauma" that contributed to the offense. (§ 1170, subd. (b)(6)(A).) Assembly Bill No. 518 amended section 654 to give trial courts discretion not to impose the provision providing for the longest term of imprisonment. (§ 654, subd. (a).) Appellant argues the trial court was unaware of the scope of its sentencing discretion under these new laws.

We disagree. Appellant was sentenced months after Assembly Bill No. 124 and Assembly Bill No. 518 became effective. Thus, appellant forfeited his claims regarding the applicability of the new laws by failing to raise them at sentencing. Even if the claims were not forfeited, remand would be unwarranted, because nothing in the record suggests the court was unaware of its discretion.

A. Background

Prior to appellant's sentencing hearing, defense counsel filed a sentencing memorandum requesting the court consider a probation sentence. In addition to the sentencing memorandum, appellant submitted several documents, including military records showing he served two years in the Air Force, academic records and awards, interviews of and statements from friends and family members, and a sex offender risk assessment report from a psychologist.

In his interview with the psychologist, appellant claimed that he was physically and psychologically abused by his mother and stepmother, and that he began suffering from mental health issues at the age of 23. Additionally, in statements to defense counsel and letters to the court, appellant's sister and aunt stated appellant was raised in an abusive household and exposed to sexual conduct at a young age.

Appellant was sentenced on March 23, 2022. At sentencing, the court confirmed that it had received the above documents, and that it "read everything in detail."

Defense counsel argued that appellant's conduct, while serious, involved only a single act, and was not the "wors[t] of the wors[t]" with regards to sex offenses against children. He asked the court to consider appellant's upbringing, claiming the submitted materials show appellant had a "very dysfunctional youth," and was "exposed to sexual elements." He also noted appellant served in the military, attended college, and demonstrated remorse.

Prior to imposing sentence, the trial court expressed agreement that appellant came from a "very difficult childhood" and was remorseful. It also agreed that appellant's conduct was "not the wors[t] factual scenario for this type of crime or for these counts." It stated it did not believe appellant was an "evil guy," but that he "did some evil things."

The trial court sentenced appellant on count 1 to 15 years to life. On count 2, the trial court imposed the middle term of six years, but stayed sentence pursuant to section 654. On count 4, the trial court imposed the middle term of two years, to be served consecutively to count 1.

In imposing sentence, the trial court did not specifically address its reasons for imposing sentence on count 1 and staying count 2 pursuant to section 654, as amended by Assembly Bill No. 518. Defense counsel did not request the court do the opposite: impose sentence in count 2 and stay sentence in count 1. As to counts 2 and 4, the court stated it had considered "factors in mitigation and aggravation," and was imposing the middle term. The court and parties did not address the applicability of Assembly Bill No. 124; namely, whether appellant experienced "childhood trauma" that was a "contributing factor in the commission of the offense[s]." (§ 1170, subdivision (b)(6)(A).)

B. Standard of review

Sentencing decisions are subject to the abuse of discretion standard. (People v. Sandoval (2007) 41 Cal.4th 825, 847; People v. Hicks (2017) 17 Cal.App.5th 496, 512.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.)

" 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez).) Thus, "[a]n abuse of discretion occurs when the trial court ... is unaware of its discretion." (In re White (2020) 9 Cal.5th 455, 470.) However, "[a]bsent evidence to the contrary, we presume that the trial court knew and applied the governing law." (Gutierrez, supra, 58 Cal.4th at p. 1390; see People v. Myers (1999) 69 Cal.App.4th 305, 310 ["The court is presumed to have considered all of the relevant factors."].) The burden is on the party attacking the sentence to demonstrate an abuse of discretion occurred. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) "To meet this burden, the [appellant] must 'affirmatively demonstrate that the trial court misunderstood its sentencing discretion.'" (People v. Lee (2017) 16 Cal.App.5th 861, 866.)

Appellant suggests the appropriate standard of review is whether "the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (Gutierrez, supra, 58 Cal.4th at p. 1391.) But this standard does not apply until it has been established that the trial court was unaware of its discretion, and the appellate court must determine if remand for resentencing is necessary. (Ibid.) The instant case does not involve a retroactive change in law after the defendant was sentenced, where it is clear the trial court was unaware of its discretion. (See Gutierrez, supra, 58 Cal.4th at p. 1391; People v. Flores (2020) 9 Cal.5th 371, 431-432.) Assembly Bill No. 124 and Assembly Bill No. 518 were both effective January 1, 2022, almost three months before appellant was sentenced. Thus, we presume the trial court was aware of and applied the law as amended, and it is appellant's burden to prove otherwise.

C. Forfeiture

As a threshold matter, respondent contends appellant forfeited his claims that the trial court was unaware of the scope of its sentencing discretion by failing to object or otherwise raise the issues at sentencing. We agree. "[C]laims involving the trial court's failure to properly make or articulate its discretionary sentencing choices" are subject to forfeiture and cannot be raised for the first time on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353.) This includes "cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons." (Ibid.)

Here, appellant did not request the trial court impose sentence on count 2, the shorter of the two terms, and stay sentence on count 1 pursuant to section 654, subdivision (a). Nor did he argue he was entitled to the presumptive lower term on counts 2 and 4 based on his "psychological, physical, or childhood trauma." (§ 1170, subd. (b)(6)(A).) Accordingly, his sentencing claims are forfeited.

D. Assembly Bill No. 518

Prior to the enactment of Assembly Bill No. 518, section 654 former subdivision (a) required that a defendant who committed an act punishable by two or more provisions of law be punished under the provision that provided for the longest possible term. (Stats. 1997, ch. 410, § 1.) Effective January 1, 2022, Assembly Bill No. 518 amended section 654, subdivision (a)...