People v. Jakul CA4/1

California Court of Appeal · D067697 · 2015-10-14 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Bernardino · No. FMB900279
Trial judge: Michael A. Smith
Outcome: reversed in part — Affirmed in part and remanded for resentencing.
Area: criminal
Panel: Richard D. Huffman, Sr. (author), Alex C. McDonald, Judith D. McConnell

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:07Z · confidence high

The trial court resentenced the defendant under Proposition 47 but failed to explicitly exercise its discretion to impose or strike five prison priors, resulting in a discrepancy between the oral pronouncement and the written judgment. The Court of Appeal affirmed the judgment in part but remanded the case solely to allow the trial court to properly rule on the prison priors.

Ruling reviewed	Standard	The court	The model
Imposition of upper term for Count 6 without stated reasons “We find Jakul has forfeited the issue by failing to object in the trial court.”	unclear	correct	agree with court agree with court
Claim of ineffective assistance of counsel for failure to object to upper term “The present record offers no indication why counsel failed to object, nor is any prejudice apparent, given Jakul's extensive criminal history.”	unclear	correct	agree with court agree with court
Failure to exercise discretion to impose or strike prison priors during resentencing “We will remand the case to permit the court to exercise its discretion to impose or strike the prison priors and to correct the abstract of judgment accordingly.”	unclear	correct	agree with court agree with court
Argument that Proposition 47 invalidated certain prison priors “We will decline to address the contention that Proposition 47 invalidated some of his prison priors. That issue has never been presented to the trial court.”	unclear	correct	agree with court agree with court

Authorities

relied: People v. Scott (1994) 9 Cal.4th 331 — Failure to raise an objection to the trial court's sentencing choices forfeits those issues for appellate review.
relied: Strickland v. Washington (1984) 466 U.S. 668 — Defendant must show counsel committed an error and that the error caused prejudice to establish ineffective assistance.
relied: People v. Mendoza Tello (1997) 15 Cal.4th 264 — Ineffective assistance claims based on the record on appeal are often difficult to establish and may require a habeas corpus petition.
relied: People v. Williams (1980) 103 Cal.App.3d 507 — Trial courts must either impose a consecutive sentence for a proven prison prior or strike the prior.
relied: People v. Garcia (2008) 167 Cal.App.4th 1550 — Trial courts must either impose a consecutive sentence for a proven prison prior or strike the prior.

The appellate opinion: sound — The court correctly applied the contemporaneous objection rule to forfeit the upper term challenge and found no basis for ineffective assistance on the existing record. It properly identified the procedural error regarding the prison priors and remanded for the trial court to exercise its discretion, while declining to address the unraised Proposition 47 issue to avoid an advisory opinion.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

After recalling Jakul's sentence under Proposition 47 (Pen. Code, § 1170.18), the trial court reduced two petty-theft counts to misdemeanors and restructured the sentence (later modified ex parte to 11 years 8 months), but its oral pronouncement never mentioned the five section 667.5(b) prison priors that the minutes and abstract of judgment still reflected. The Court of Appeal remanded for the trial court to exercise its discretion to impose or strike the prison priors and to amend the abstract, declined to decide whether Proposition 47 invalidated any priors, held the challenge to the upper term on count 6 forfeited for lack of objection, rejected the ineffective-assistance claim on the appellate record, and otherwise affirmed.

Ruling reviewed	Standard	The court	The model
Imposition of the upper term on count 6 at the 2014 resentencing without a statement of reasons “We find Jakul has forfeited the issue by failing to object in the trial court.”	abuse of discretion	not reached	agree with court Jakul framed the claim as an abuse of discretion, but the court never reached the merits because trial counsel did not object. People v. Scott (1994) 9 Cal.4th 331, 356 squarely holds that complaints about the manner in which the trial court exercises its sentencing discretion and articulates its reasons are forfeited absent a contemporaneous objection. The court correctly applied that rule and reasonably noted the record showed a long recidivist history, so the result is supported.
Claim that trial counsel rendered ineffective assistance by failing to object to the upper term “The present record offers no indication why counsel failed to object, nor is any prejudice apparent, given Jakul's extensive criminal history.”	unclear	correct	agree with court The court did not state a standard of review but applied Strickland's two-prong test and the rule from People v. Mendoza Tello (1997) 15 Cal.4th 264 that ineffective-assistance claims resting on a silent record are better pursued by habeas corpus. Because the record does not disclose counsel's reasons and Jakul's criminal history supplied an obvious aggravating factor, neither deficient performance nor prejudice is shown on direct appeal. The analysis is brief but consistent with controlling authority.
2014 resentencing that omitted the five section 667.5(b) prison priors from the oral pronouncement while the minutes and abstract reflected consecutive one-year terms for them “Trial courts must either impose a consecutive sentence for a proven prison prior, or strike the prior.”	unclear	error	agree with court Whether a sentence complies with section 667.5(b) is a question of law, and the court did not articulate a standard. The court correctly recognized that a trial court must either impose or strike a proven prison prior and that the oral pronouncement and the clerical record here diverged; remanding so the trial court can make an express choice and conform the abstract is a defensible remedy. The opinion does not, however, discuss the rule that the oral pronouncement controls over the minutes and abstract (People v. Mitchell (2001) 26 Cal.4th 181), nor whether the Proposition 47 recall reopened all sentencing choices, so the reasoning has gaps though the result is sound.
Validity of the prison priors in light of Proposition 47 (claim that some underlying felonies are now misdemeanors) “There is no purpose to be served by us addressing an issue never raised in the trial court.”	unclear	not reached	agree with court The issue was never presented to the trial court, and because the matter was being remanded for the trial court to address the priors, the appellate court reasonably left the question for the trial court in the first instance rather than issue an advisory opinion. Declining to reach an unpreserved issue that will be ripe on remand is a sound exercise of appellate restraint.

Authorities

relied: People v. Scott (1994) 9 Cal.4th 331 — Complaints about the trial court's discretionary sentencing choices, including the failure to state reasons, are forfeited if not raised by contemporaneous objection in the trial court.
relied: Strickland v. Washington (1984) 466 U.S. 668 — A defendant claiming ineffective assistance must show deficient performance by counsel and resulting prejudice.
relied: People v. Mendoza Tello (1997) 15 Cal.4th 264 — Where the appellate record does not reveal why counsel acted or failed to act, an ineffective-assistance claim is more appropriately raised by petition for writ of habeas corpus.
relied: People v. Williams (1980) 103 Cal.App.3d 507 — A trial court must either impose a consecutive one-year term for a proven section 667.5(b) prison prior or strike it; it cannot simply ignore the enhancement.
relied: People v. Garcia (2008) 167 Cal.App.4th 1550 — Failure to impose or strike a prison-prior enhancement produces a legally unauthorized sentence that must be corrected.
missed: People v. Mitchell (2001) 26 Cal.4th 181 — The oral pronouncement of judgment controls over the minutes and abstract of judgment, which are clerical records that may be corrected to conform to the sentence actually imposed; this principle bears directly on the discrepancy the court addressed.
missed: People v. Langston (2004) 33 Cal.4th 1237 — Once a section 667.5(b) prison prior is found true, the one-year enhancement is mandatory unless stricken; the trial court may not stay it, which is the Supreme Court authority for the impose-or-strike rule the court drew from Court of Appeal cases.

The appellate opinion: sound with gaps — The court correctly applied Scott's forfeiture rule, Strickland and Mendoza Tello on ineffective assistance, and the impose-or-strike rule for prison priors, and its remand to let the trial court make an express decision on the priors is a defensible remedy that both parties requested. It did not, however, cite the controlling Supreme Court authority on the oral-pronouncement-controls rule or the mandatory nature of section 667.5(b) enhancements, and it did not address whether the Proposition 47 recall reopened all sentencing choices or whether the December 2014 order was appealable despite describing Jakul as one who 'purports to appeal.'

How this analysis was made · dispute it

Opinion

Filed 10/14/15 P. v. Jakul CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D067697

Plaintiff and Respondent, v. (Super. Ct. No. FMB900279)

STEVEN MICHAEL JAKUL,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Bernardino, Michael A.

Smith, Judge. Affirmed in part and remanded for resentencing.

Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Allison V.

Hawley, Deputy Attorneys General, for Plaintiff and Respondent. In 2009, Steven Michael Jakul was convicted by a jury of attempted unlawful driving and taking of a vehicle (Pen. Code,1 § 664; Veh. Code, § 10851, subd. (a);

count 1); two counts of petty theft after a prior conviction (§ 666; counts 2, 4); and conspiracy to commit larceny (§ 182, subd. (a)(1); count 6). The court found true five prison priors (§ 667.5, subd. (b)) and one strike prior (§ 667, subds. (b)-(i)).

In 2010, Jakul was sentenced to a determinate term of 13 years in prison, including five consecutive one-year terms for the prison priors.

In December 2014, the court recalled Jakul's sentence pursuant to section 1170.18 (Proposition 47). The court reduced the sentences for counts 2 and 4 to misdemeanors and recalculated Jakul's sentence. The minute orders and the abstract of judgment reflect a 13-year sentence including five years for the priors. In the oral pronouncement of sentence the court did not mention the prison priors or the five-year term previously imposed for them in 2010.

Following the 2014 sentencing, the Department of Corrections and Rehabilitation sent the court a letter pointing out a calculation error with regard to a subordinate term.

The court conducted an ex parte sentencing in response to the Department of Corrections and Rehabilitation letter. The court modified the sentence to reflect the revised sentence as 11 years eight months.

Jakul purports to appeal from the December 2014 sentencing. He contends the trial court did not exercise its discretion to impose or strike the prison priors at that time.

1 All further statutory references are to the Penal Code unless otherwise specified. 2 He notes that the oral pronouncement of the 2014 sentence did not mention the prison priors or the 13-year term.

Jakul contends, and the People agree, the case must be remanded for the court to exercise its discretion to strike or impose sentences on the prison priors. Jakul argues that some of the prison priors are no longer valid because of Proposition 47 and that we should dismiss some of them. Jakul also complains the trial court abused its discretion in imposing the upper term for count 6 without stating reasons. Because his counsel did not object to the court's sentencing decision, Jakul contends his counsel was ineffective.

We will remand the case to permit the court to exercise its discretion to impose or strike the prison priors and to correct the abstract of judgment accordingly. We will decline to address the contention that Proposition 47 invalidated some of his prison priors. That issue has never been presented to the trial court. Further, since we are remanding the case to the trial court to make a decision on the prison priors, there is no reason for us to venture into an advisory opinion on an issue yet to be presented to the trial court. Finally, we will find any objection to the upper term for count 6 has been forfeited by failure to raise it in the trial court. This record does not support a claim of ineffective assistance of trial counsel.2 2 The facts of the underlying offenses are irrelevant to the issues on this appeal. Therefore we will not set forth a statement of facts. 3 DISCUSSION A. The Upper Term for Count 6 We will take the issues in a different order than that followed by the parties. We deal first with the challenge to the trial court's decision to impose the upper term on count 6.

Jakul contends the trial court abused its discretion in failing to state reasons for its decision. We find Jakul has forfeited the issue by failing to object in the trial court. In People v. Scott (1994) 9 Cal.4th 331, 356, the court held that failure to raise an objection to the trial court's sentencing choices forfeits those issues for appellate review. The court applied the well-established contemporaneous objection rule to sentencing decisions.

Jakul was represented by counsel and could have objected if there was any plausible basis to contest the imposition of the upper term for count 6.

This record reflects that the court was well aware that Jakul was a person with a criminal history dating back to 1985. Jakul had multiple convictions and presented to the court as a classic recidivist. The failure to object deprived the trial court of the opportunity to correct any error and deprived the appellate court of a meaningful record to review.

B. Ineffective Assistance of Counsel Jakul contends trial counsel was ineffective for failure to object to the imposition of the upper term. Under applicable standards Jakul has the burden of showing his counsel committed an error and that the error caused him prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 686-687.) The present record offers no indication why 4 counsel failed to object, nor is any prejudice apparent, given Jakul's extensive criminal history.

Our high court has said that it is often difficult to establish ineffective assistance on the record presented on appeal. This is especially true where, as here, the contention is counsel erred in failing to object. But the record does not tell us why counsel made a particular decision not to act, nor is there any identifiable prejudice shown on this record.

Jakul's remedy, if any, is by way of a petition for writ of habeas corpus filed in the trial court. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268.)

C. The Prison Priors The parties agree the case should be remanded for yet another sentencing hearing since the oral pronouncement of sentence in 2014 did not include reference to the five prison priors.

Trial courts must either impose a consecutive sentence for a proven prison prior, or strike the prior. (People v. Williams (1980) 103 Cal.App.3d 507, 519; People v. Garcia (2008) 167 Cal.App.4th 1550, 1560-1561.) In its oral pronouncement of sentence following the section 1170.18 petition in 2014, the court did not mention the existence of the priors. However, the minutes and the abstract of judgment reflect consecutive sentences for those priors.

It appears that at the section 1170.18 resentencing nobody addressed the priors.

The whole purpose of the hearing was to deal with counts 2 and 4, which were ultimately reduced to misdemeanors. The court then needed to restructure the sentences for the offenses after the reduction of the two counts. It appears to us there was simply an 5 oversight in not addressing the sentence on the priors, which was not the subject of the hearing. While we regret sending more work back to the trial court, we believe it is necessary that we insure the sentence reflected in the minutes and the abstract of judgment is that which was actually intended by the trial judge.

Jakul would have this court determine which of the prison priors, if any, might be invalidated by Proposition 47. There is no purpose to be served by us addressing an issue never raised in the trial court. This is particularly true where the case is going to be returned to the trial court to address the sentencing issues related to the prison priors.

When the case is returned to the trial court, Jakul can raise any claims that may be appropriate as to the legal validity of those priors. We express no opinion as to the merits of Jakul's arguments regarding the impact of Proposition 47 on the validity of prison priors, where the underlying crime may no longer be a felony.

DISPOSITION

The case is remanded for resentencing only as it relates to the prison priors. The trial court is to exercise its discretion to impose or strike any or all of the prison priors.

The abstract of judgment must be amended to reflect the trial court's decision, and a copy 6 provided to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

McDONALD, J.

Cites, in this corpus

People v. Garcia B205182 · 2008-11-04
People v. Mendoza Tello S055184 · 1997-04-17
People v. Scott No. S037757 · 1994-12-30
People v. Williams Crim. 3758 · 1980-03-18