Filed 5/7/18 P. v. Luckett CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

KEITH RUSSELL LUCKETT,

Defendant and Appellant.
D071608



(Super. Ct. No. SCD258588)


APPEAL from a judgment of the Superior Court of San Diego County, Louis R. Hanoian, Judge. Affirmed.
Dacia A. Burz, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
After a mistrial, a second jury convicted Keith Russell Luckett of two counts each of robbery. (Pen. Code, § 211.) The jury could not agree on the remaining counts of kidnapping for robbery (§ 209, subd. (b)(1)), resulting in a mistrial on those counts. A third trial resulted in convictions on those counts. The court denied his request for probation and sentencing under section 1170.9 as a United States military veteran suffering from posttraumatic stress disorder (PTSD).
Luckett contends that the judgment should be reversed and the matter remanded for resentencing. Luckett asserts that the trial court erred in finding he was ineligible for probation because he suffered from PTSD resulting from military service which necessarily showed an unusual circumstance and entitled him to probation under California Rules of Court, rule 4.413(c)(2)(B). He also claims the court improperly exercised its sentencing discretion when it imposed consecutive terms on the kidnapping for robbery counts and upper terms on the robbery counts because the court did not properly consider the effect of his PTSD as a mitigating factor. We find no abuse of discretion and affirm the judgment.
FACTUAL BACKGROUND
Around midnight on a night in May 2014, Stella C. and Lauren G. were walking to their car in La Jolla when Luckett approached them. Luckett ordered Stella to give him all the money she had. Stella looked in her purse and saw that she only had about $6 in cash. When she told Luckett that she did not have any money, he lifted his shirt and showed her what appeared to be the handle of a gun tucked into his pants. The weapon turned out to be a BB gun.
Luckett held the gun downward to his side and motioned for the women to get into Lauren's car. The women got into the front seats, and Luckett sat in the back with the gun in his hand on his lap. Luckett demanded their cell phones, turned them off and put them in his pocket. He directed Stella to drive to an ATM and withdraw $1,000. While Stella was getting money from the ATM, Luckett threatened Lauren—"Your friend better not run"—or he would have to do something. Luckett's tone was "very serious and threatening" and Lauren was afraid that he might use the gun if Stella ran.
Stella returned to the car and explained that $500 was the most she could withdraw. Lauren told Luckett that she could get him the rest of the money. After Lauren could not withdraw any money from that ATM, Luckett directed Stella to drive to a different ATM. After Lauren left for the ATM, someone walked by the car. Luckett told Stella to not wave at the person or he would shoot her. Stella was afraid Luckett would hurt her if she moved.
When Lauren returned to the car with $500, Luckett directed Stella to drive him back to their original location. Luckett got out of the car, returned their phones and instructed them to drive away and not call the police. Stella started crying, while Lauren was still in shock. The women drove to a friend's house and called police. Ultimately, DNA evidence recovered from the car led police to Luckett. Police arrested Luckett after Lauren identified him from a photo lineup.
During a police interview, Luckett admitted that he committed the robberies using a BB gun. He stated that he went to La Jolla knowing "that was the only place where [he] could probably come up on a little bit of cash." At trial, however, Luckett denied committing the robberies.
DISCUSSION
I. APPLICATION OF SECTIONS 1170.9 and 1170.91
A. Sections 1170.9 and 1170.91
Originally enacted in 1982, section 1170.9 was amended "to extend the opportunity for alternative sentencing to all combat veterans, regardless of where or when those veterans served our country, when those veterans are found by the court to be suffering from PTSD." (Stats. 2006, ch. 788, § 1(e).) The Legislature wanted to ensure that courts were made aware of a defendant's service history and PTSD, and the existence of treatment programs if probation is appropriate for the defendant. (Stats. 2006, ch. 788, § 1(g).) Section 1170.9, subdivision (a) (section 1170.9(a)) provides in relevant part:
"In the case of any person convicted of a criminal offense who could otherwise be sentenced to county jail or state prison and who alleges that he or she 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 his or her service."

If the court determines the defendant "is a person described in [section 1170.9(a)], and if the defendant is otherwise eligible for probation, the court shall consider the circumstances described in [section 1170.9(a)] as a factor in favor of granting probation." (§ 1170.9, subd. (b)(1), italics added.) The Legislature added the italicized language in 2015. (Stats 2014, ch. 163, § 1.)
In 2015 the Legislature also added section 1170.91, which requires the court to consider PTSD as a mitigating circumstance if a defendant is sentenced under section 1170, subdivision (b):
"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 his or her military service, the court shall consider the circumstance as a factor in mitigation when imposing a term under subdivision (b) of Section 1170. This consideration does not preclude the court from considering similar trauma, injury, substance abuse, or mental health problems due to other causes, as evidence or factors in mitigation."

The Legislative Counsel's Digest explained that the amendment to section 1170.9 and addition of section 1170.91 require the court to consider the certain specified conditions caused by United States military service as a factor in favor of granting probation and a factor in mitigation during sentencing. (Legis. Counsel's Dig., Assem. Bill No. 2098 (2013-2014 Reg. Sess.), Stats. 2014, ch. 163, Summary Dig., pp. 95-96.)
B. The Sentencing Hearing
Before sentencing, the probation department filed a report recommending a state prison sentence. The report stated that Luckett's offenses made him presumptively ineligible for probation unless his case presented an unusual circumstance where the interest of justice would best be served by a grant of probation. The probation department determined that the case did not present any exceptional circumstances.
About 18 months earlier forensic neuropsychologist Cynthia Boyd evaluated Luckett and determined that he had PTSD. The trial court ordered another forensic evaluation to determine whether Luckett's actions at the time of his offenses resulted from PTSD, whether he was still suffering from PTSD, and whether he would be a suitable candidate for alternative commitment under section 1170.9. Dr. Carroll evaluated Luckett.
At the sentencing hearing, the court indicated that it had presided over Luckett's trials and was very familiar with the evidence. It had read and considered the probation report, sentencing briefs filed by both parties, Dr. Carroll's report, Dr. Boyd's report, Luckett's discharge documents from the military, military PTSD checklist, exhibits from the National Center for PTSD, articles written by Dr. Carroll, and a letter written by Luckett. The court found that Luckett was a member of the United States military. Based on Dr. Carroll's findings, the court determined that Luckett suffered from PTSD. Accordingly, the court concluded that Luckett was eligible for treatment under section 1170.9 if Luckett was otherwise eligible for probation.
The court found that Luckett's kidnapping for robbery convictions made him presumptively ineligible for probation unless unusual circumstances existed. The court noted that Luckett's PTSD diagnosis could be an unusual circumstance, but ultimately concluded that unusual circumstances did not exist and denied probation.
The court imposed the upper term of five years on the robbery counts, but stayed the sentences under section 654. It sentenced Luckett to seven years to life on the kidnapping for robbery counts and ordered the sentences to be served consecutively because the crimes involved different victims and different property.
C. Analysis
1. Denial of section 1170.9 alternative sentencing
Luckett asserts the trial court abused its discretion and violated his right to due process because it lacked informed sentencing discretion when it denied him probation and alternate commitment and treatment under section 1170.9. Specifically, he contends the language of section 1170.9, subdivision (b)(1) (section 1170.9(b)(1)) is ambiguous as to whether the Legislature intended that the findings the defendant suffered PTSD resulting from military service is a factor favoring probation because it is causally linked to the crimes committed, or is simply a factor favoring probation because the defendant is a veteran suffering from these conditions. He contends that the Legislative history of the 2015 amendment supports his claim that the Legislature "intended that the findings that defendant's PTSD resulting from military service is a factor in favor of probation because it is causally linked to the offenses committed." He also argues that the trial court operated under the erroneous belief that an unusual circumstance did not exist because his military service PTSD was not causally linked to his crimes.
" 'Our role in construing a statute is to ascertain the Legislature's intent so as to effectuate the purpose of the law. [Citation.]' [Citation.] In the end, we must adopt the construction that is most consistent with the apparent legislative purpose and avoids absurd consequences." (People v. Barker (2004) 34 Cal.4th 345, 357.) Statutory language must be construed "in the context of the statute as a whole and the overall statutory scheme, and we give 'significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose.' " (People v. Canty (2004) 32 Cal.4th 1266, 1276.) We look first to the plain words of an enactment and, if there is no ambiguity in the language, must presume the legislative body meant what it said without resort to legislative history. (People v. Patterson (1999) 72 Cal.App.4th 438, 442.)
Luckett claims section 1170.9(b)(1) is ambiguous as to whether the Legislature intended a finding that the defendant suffered PTSD resulting from military service is a factor favoring probation because it is causally linked to the crimes committed, or that it is simply a factor favoring probation because the defendant is a veteran suffering from these conditions. We find no ambiguity in the statute.
Section 1170.9(a) requires that the trial court determine whether the defendant (1) is or was a member of the United States military and (2) suffers from certain conditions, including PTSD, as a result of that military service. In turn, section 1170.9(b)(1) provides that "[i]f 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."
Construing these provisions together, section 1170.9 unambiguously provides that if a court determines that a defendant (1) is or was a member of the United States military; (2) suffers from a certain specified condition, including PTSD, as a result of that military service; and (3) is otherwise eligible for probation, then the court must consider these circumstances as a factor in favor of granting probation. While section 1170.9 does not come into play until a person convicted of a crime asserts he or she committed the crime because of a specified condition arising from United States military service (see § 1170.0(a)), the statute does not require a causal link to exist between the specified mental condition and the crimes committed. Rather, as we shall discuss, a causal link becomes relevant to determine eligibility for probation under the California Rules of Court.
Here, the trial court concluded that Luckett was a member of the United States military and that he suffered from PTSD as a result of that military service. But, before the court can consider these factors in favor of granting probation, it correctly noted that it must first determine whether Luckett "is otherwise eligible for probation." (§ 1170.9(a).) Luckett, however, was presumptively ineligible for probation, unless the court determined his case was an "unusual case[ ] where the interests of justice would best be served" by granting probation. (§ 1203.045, subd. (a).)
Before a trial court may grant probation to a presumptively ineligible defendant such as Luckett, it must engage in a two-step analysis. (See rule 4.413(b); People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1229.) First, the court must determine whether the defendant's case is "unusual." (Rule 4.413(b), (c); see Dorsey, at p. 1229.) Second, assuming the first test resolves in favor of eligibility, the court must determine whether probation is appropriate under the circumstances. (See Rules 4.413(b), 4.414.)
We review a trial court's decision to grant or deny probation under the deferential abuse of discretion standard. (People v. Ferguson (2011) 194 Cal.App.4th 1070, 1091.) We generally do not disturb a sentencing determination unless the appellant demonstrates that the trial court exercised its discretion in an arbitrary or capricious fashion. (People v. Edwards (1976) 18 Cal.3d 796, 807.)
Luckett does not dispute that he was statutorily ineligible for probation. Accordingly, the question presented is whether an unusual circumstance existed making him eligible for probation. In deciding this question, the court correctly considered, among other things, whether Luckett committed the crimes because of his PTSD. (Rule 4.413(c)(2)(B).) Although Luckett argues that his PTSD resulting from military service necessarily showed an unusual circumstance under rule 4.413(c)(2)(B), the plain language of section 1170.9 does not support this assertion. Had the Legislature intended this result, it could have so specified.
The trial court ultimately found no unusual circumstance existed to overcome Luckett's ineligibility for probation. While the court could have ended its analysis at this juncture, it nonetheless examined the rule 4.414 criteria and found that probation would not be appropriate based on the seriousness of the crimes, the use of a weapon, the vulnerability of the victims, the harm to the victims, and Luckett's planning of the crime. The court also acknowledged that Luckett was remorseful and lacked a criminal history.
The court believed that Luckett did not have the ability to comply with the terms of probation based on his "violent outbursts, disrespectful, assaultive, disruptive actions in each one of the three trials" that were "all planned for the maximum manipulative effect." It believed Luckett would be a danger to others if not imprisoned. As a result, the court denied probation.
The trial court properly considered Luckett's PTSD to be a factor in favor of granting probation and determined section 1170.9 did not apply once deciding no unusual circumstance existed and that Luckett was ineligible for probation. The court did not abuse its discretion in denying probation. Nor does the record support Luckett's arguments that the trial court relied upon improper factors and did not understand its discretion regarding probation.
2. Imposition of consecutive and upper terms
Luckett contends the court lacked informed sentencing discretion regarding the use of section 1170.91 as a mitigating factor when it imposed consecutive terms of seven year to life on the kidnapping for robbery counts and upper terms on the robbery counts. In making this argument Luckett cites to one portion of the reporter's transcript where the court stated:
"In terms of the factors in mitigation, the defendant was suffering from a mental condition, suffering from post-traumatic stress disorder. Whether it was manifested in connection with this case, I've already dealt with that issue. I don't believe it was. But he was still suffering under—for that condition. [¶] That is a factor in mitigation. But on balance, the factors in aggravation outweigh the mitigation, and the upper term is selected."

Luckett relies on the above italicized language to argue that the trial court failed to properly consider section 1170.91 as a mitigating factor. He contends that we should reverse his sentence and remand the matter for resentencing because, had the court properly considered that section 1170.91 reduced his culpability for the crimes, there was a reasonable chance it would not have imposed consecutive sentences or upper terms. We disagree.
Unless the imposition of consecutive terms is mandatory, the trial court has discretion to impose consecutive or concurrent terms under section 669. (People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262-1263.) Rule 4.425 "sets forth the criteria affecting the decision to impose consecutive rather than concurrent terms." (People v. Coelho (2001) 89 Cal.App.4th 861, 886.) Those criteria include whether or not (1) the "crimes and their objectives were predominantly independent of each other"; (2) the "crimes involved separate acts of violence or threats of violence"; or (3) the "crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior." (Rule 4.425(a).)
A sentencing court also has broad discretion to impose the lower, middle, or upper terms of imprisonment, and to weigh various aggravating and mitigating factors. (People v. Black (2007) 41 Cal.4th 799, 813, 822; § 1170, subd. (b).) An upper-term sentence may be based upon "any aggravating circumstance that the court deems significant . . . [and] 'reasonably related to the decision being made.' " (People v. Sandoval (2007) 41 Cal.4th 825, 848.)
Section 1170.91 requires the court to consider PTSD as a mitigating circumstance if a defendant is sentenced under section 1170, subdivision (b). Only a single aggravating factor, however, is required to impose an upper term or consecutive terms. (People v. Osband (1996) 13 Cal.4th 622, 728-729.) We review the court's determination for an abuse of discretion. (People v. Sandoval, supra, 41 Cal.4th at p. 847.) A court is "presumed to have been aware of and followed the applicable law" when imposing a sentence. (People v. Mosley (1997) 53 Cal.App.4th 489, 496.) Therefore, the burden is on Luckett to demonstrate that the court misunderstood its sentencing discretion. (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1523.)
Here, the trial court selected the upper term on the robbery counts for both victims, citing as aggravating factors the vulnerability of the victims, Luckett's threats of violence, the sophistication of the crime, the amount of money taken, and the use of a weapon. (Rule 4.421(a)(1), (2), (3), (8) & (9).) Luckett does not challenge the sufficiency of the evidence supporting the trial court's findings regarding the aggravating circumstances. The court expressly considered Luckett's PTSD as a mitigating factor, but concluded that the factors in aggravation outweighed the factors in mitigation. There is no evidence that the trial court failed to exercise its discretion, or that it misunderstood its sentencing discretion.
In considering whether to impose concurrent or consecutive sentences, the court cited section 669 and decided on consecutive terms because there were two victims who each had property taken. The existence of two victims provided ample grounds for the imposition of consecutive sentence as courts have repeatedly held that violent conduct that threatens more than one victim may be punished with consecutive sentences even if the offenses occurred during a single course of conduct. (People v. Leon (2010) 181 Cal.App.4th 452, 468 ["trial court has discretion to impose consecutive sentences where . . . a single act has resulted in crimes against multiple victims"]; People v. Calhoun (2007) 40 Cal.4th 398, 408; People v. Shaw (2004) 122 Cal.App.4th 453, 459.) The court acted within its discretion when it imposed consecutive sentences.
In summary, there is no indication in the record that the court misunderstood its sentencing discretion. Even assuming the court misunderstood how to evaluate Luckett's PTSD diagnosis, on this record we find no reasonable probability Luckett would have received a more favorable sentence absent the assumed error. (People v. Price (1991) 1 Cal.4th 324, 492 [harmless error where trial court considered both proper and improper reasons for a sentence choice].) Accordingly, no remand for resentencing is required.
DISPOSITION
The judgment is affirmed.



NARES, J.

WE CONCUR:



HUFFMAN, Acting P. J.



IRION, J.