People v. Layral CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of Riverside County · No. RIF1402889
- Trial judge
- Bernard Schwartz
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Patricia D. Benke (author), Judith L. Haller, Cynthia Aaron
Analysis
The trial court resentenced the defendant to two consecutive indeterminate terms of 15 years to life, rejecting the argument that it was unaware of its discretion to impose concurrent sentences. The Court of Appeal affirmed the judgment but ordered the correction of the defendant's actual custody credits.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Consecutive sentencing for counts 1 and 2“We conclude defendant has not carried his burden of showing the trial court was unaware of its discretion to sentence him concurrently.” | abuse of discretion | correct | agree with court The appellate court correctly applied the abuse of discretion standard, which is the appropriate standard for reviewing a trial court's choice between concurrent and consecutive sentences. The court properly noted that the trial court expressly stated its intent to sentence consecutively, which demonstrates awareness of the discretionary choice, and correctly held that the defendant failed to meet his burden of showing the trial court acted irrationally or was unaware of its options. |
Due process violation regarding consecutive sentencing“Here, we find no constitutional error. As we have explained, the trial court acted within its discretion and there is insufficient evidence to conclude the trial court was unaware of its choices and responsibility.” | de novo | correct | agree with court The court correctly applied the standard that state procedural errors do not violate due process unless they render the trial fundamentally unfair or involve misinformation of constitutional magnitude. Since the trial court acted within its discretion and there was no evidence of constitutional-level misinformation, the due process claim was properly rejected. |
Ineffective assistance of counsel“Defense counsel had no additional burden to ask the court to repeat its discretionary selection.” | de novo | correct | agree with court The court correctly applied the Strickland standard, finding no deficiency in performance because the trial court was already aware of its discretion. Since the trial court made an informed discretionary choice, counsel's failure to explicitly request concurrent sentencing did not prejudice the outcome, as the result would not have been different. |
Correction of actual custody credits“Defendant’s actual custody credits are corrected to reflect an additional 1,027 days.” | de novo | correct | agree with court The court correctly identified that the custody credits were miscalculated and ordered the correction. This is a ministerial calculation that the appellate court can resolve on the record without remand, and both parties agreed on the necessity of the correction. |
Authorities
- relied: People v. Weddington (2016) 246 Cal.App.4th 468 — Issues not raised at the time of sentencing are forfeited on appeal.
- relied: People v. Nicolas (2017) 8 Cal.App.5th 1165 — A trial court's particular choice in sentencing is reviewed under an abuse of discretion standard.
- relied: People v. Carmony (2004) 33 Cal.4th 367 — The abuse of discretion standard for sentencing is highly deferential.
- relied: People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968 — The burden is on the party attacking the sentence to show it was irrational or arbitrary; the trial court is presumed to have acted legitimately.
- relied: People v. Fudge (1994) 7 Cal.4th 1075 — Ordinary application of state procedural rules does not implicate constitutional rights unless the trial is rendered fundamentally unfair.
- relied: Estelle v. McGuire (1991) 502 U.S. 62 — State procedural errors do not violate due process unless they render the trial fundamentally unfair.
- relied: Chambers v. Mississippi (1973) 410 U.S. 284 — Due process is violated when state procedural rules are applied in a manner that renders the trial fundamentally unfair.
- relied: Roberts v. United States (1980) 445 U.S. 552 — Due process entitles a defendant to informed discretion free from misinformation of constitutional magnitude.
- relied: Strickland v. Washington (1984) 466 U.S. 668 — To establish ineffective assistance of counsel, a defendant must show counsel's performance fell below an objective standard of reasonableness and that there was a reasonable probability of a different result.
- relied: People v. Jones (2010) 186 Cal.App.4th 216 — California courts apply the Strickland standard for ineffective assistance of counsel claims.
The appellate opinion: sound — The opinion is sound because it correctly applies the abuse of discretion standard to the sentencing choice and properly rejects the due process and ineffective assistance claims based on the record showing the trial court was aware of its options. The court also correctly identifies and corrects the ministerial error in custody credits.
How this analysis was made · dispute it
unusual dispositionAfter CDCR flagged an unauthorized One Strike sentence, the Riverside Superior Court resentenced defendant on two Penal Code section 288(a) counts with a multiple-victim finding to two consecutive terms of 15 years to life, and defense counsel raised no objection. The Court of Appeal held the concurrent-sentencing claim forfeited and in any event meritless because the record did not show the court misunderstood its discretion, rejected the due process and ineffective-assistance claims, and corrected actual custody credits by 1,027 days while otherwise affirming.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of consecutive 15-years-to-life terms on counts 1 and 2 at resentencing, challenged on the ground the court did not know it had discretion to sentence concurrently“We conclude defendant has not carried his burden of showing the trial court was unaware of its discretion to sentence him concurrently.” | abuse of discretion | correct | agree with court Both sides and the court accept that section 667.61 does not mandate consecutive terms for section 288(a) counts, so the court had discretion under section 669. The claim was forfeited by counsel's failure to object and affirmative statement that no questions remained, and on the merits the appellate court properly applied the presumption that a sentencing court knows and applies the law (Alvarez, Carmony) where nothing in the resentencing record showed a belief that consecutive terms were mandatory; the only contrary indication was an error in the three-year-old probation report that the opinion says was corrected. The court's inference from the trial judge's statement that it 'intended' to run the terms consecutively is thin, but the burden was on defendant and a silent record does not rebut the presumption. The opinion does not cite the statutory basis for the discretion or the published case recognizing it, but the result follows. |
Claim that selection of consecutive sentences violated due process“Here, we find no constitutional error. As we have explained, the trial court acted within its discretion and there is insufficient evidence to conclude the trial court was unaware of its choices and responsibility.” | de novo | correct | agree with court The due process theory depended entirely on the premise that the court sentenced under a misapprehension of its discretion. Having found no record support for that premise, the court correctly concluded there was no 'misinformation of constitutional magnitude' under Roberts/Tucker and no fundamental unfairness under Fudge and Estelle. |
Claim of ineffective assistance of counsel for failing to request concurrent sentences“Defense counsel had no additional burden to ask the court to repeat its discretionary selection.” | de novo | correct | agree with court Under Strickland defendant must show deficient performance and prejudice. On a direct-appeal record that does not show the court misunderstood its options or that any argument would have changed the outcome, neither prong is satisfied; the court's treatment is brief but consistent with the usual rule that silent-record IAC claims fail on direct appeal. |
Calculation of actual custody credits at resentencing“Defendant urges he is entitled to correction of his actual custody credits. The People agree, as do we. Remand is not necessary to correct the award of credits.” | de novo | error (fact finding unsupported) | agree with court The parties agreed the resentencing court failed to credit all actual custody time, and an appellate court may correct an undisputed credit miscalculation without remand. The opinion gives no computation or authority (e.g., the Buckhalter rule that a court resentencing must recalculate all actual days), but the correction is conceded and the disposition is appropriate. |
Authorities
- relied: People v. Carmony (2004) 33 Cal.4th 367 — Sentencing choices are reviewed for abuse of discretion, a highly deferential standard under which the defendant must show the decision was irrational or arbitrary.
- relied: People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968 — Absent a showing of irrationality or arbitrariness, the trial court is presumed to have acted to achieve legitimate sentencing objectives.
- relied: People v. Nicolas (2017) 8 Cal.App.5th 1165 — A trial court's particular sentencing choice is reviewed for abuse of discretion.
- relied: People v. Weddington (2016) 246 Cal.App.4th 468 — Sentencing claims not raised at the sentencing hearing are forfeited on appeal.
- relied: People v. Fudge (1994) 7 Cal.4th 1075 — Ordinary application of state procedural rules does not implicate federal constitutional rights unless the proceeding is rendered fundamentally unfair.
- relied: Roberts v. United States (1980) 445 U.S. 552 — Due process entitles a defendant to sentencing based on informed discretion free of misinformation of constitutional magnitude.
- relied: Strickland v. Washington (1984) 466 U.S. 668 — Ineffective assistance requires deficient performance below an objective standard of reasonableness and a reasonable probability of a different result.
- relied: People v. Jones (2010) 186 Cal.App.4th 216 — Restates the Strickland two-prong test for ineffective assistance of counsel.
- missed: People v. Rodriguez (2005) 130 Cal.App.4th 1257 — The One Strike law does not mandate consecutive 15-to-life terms for section 288(a) convictions involving multiple victims; the court retains discretion under section 669, and remand is required where the record shows the court believed consecutive terms were mandatory.
The appellate opinion: sound with gaps — The opinion correctly applies forfeiture, the presumption that a sentencing court knows the law, and the Strickland and due process standards to a record that showed no misunderstanding of discretion, and the agreed credit correction is proper. It skips the statutory basis for the concurrent/consecutive discretion under sections 667.61 and 669 and the published authority (Rodriguez) recognizing it, and it describes the resentencing record only in conclusory terms.
Opinion
Filed 9/24/20 P. v. Layral 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, D076744
Plaintiff and Respondent, v. (Super. Ct. No. RIF1402889)
GILBERT WAYNE LAYRAL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County, Bernard Schwartz, Judge. Affirmed.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison Acosta, Deputy Attorneys General, for Plaintiff and Respondent. On this appeal, defendant alleges he should be resentenced because the trial court did not know it could sentence him concurrently for counts 1 and 2. He also alleges his actual custody credits need correction. We conclude that the court knew of its discretionary choices and the consecutive sentencing was proper. We agree, however, as do the People, that defendant’s custody credits should be corrected.
FACTUAL BACKGROUND1 John C., the brother of defendant’s wife Pam, had a daughter, M.C. and a stepdaughter M.G. From the time they were five and six years old until they were 10 and 11, respectively, they visited defendant and Pam once a month at their house in Riverside. One day, when M.G. was between five and 11 years old, and after swimming at defendant’s house, defendant turned on the shower for her, put his hand inside her bathing suit bottom and rubbed the inside of her vagina. When she jumped away, defendant told her not to tell anyone. M.G. told M.C. but nobody else. M.C. testified that from the time she was seven or eight, defendant would rub her stomach, lower back, and inside her thighs while she wore her bathing suit. He also would lie on top of her on his bed and tickle her thighs. When M.C. was about 10 years old and taking a nap, defendant pulled off the bottom of her two-piece bathing suit, and rubbed her “between the two parts” of her vagina for 15 to 20 minutes. Late that same day, defendant tried unsuccessfully to get M.C. to take off her bathing suit and show him her body.
1 Like respondent, we adopt the statement of facts from the factual summary within the opinion filed with defendant’s first direct appeal, People v. Layral (Oct. 26, 2018, D074032) [nonpub. opn.]. On June 16, 2020, we took judicial notice of that opinion. We summarize here briefly to explain the factual basis of defendant’s current appeal.
2 When M.C. was 14 years old, she told her mother about defendant’s lewd acts. In talking to John, defendant stated he could not pass a lie detector test as to M.C. and M.G. John then called the police. At trial, there was evidence of prior uncharged acts as to Shawna A. and Jeanette C. They testified defendant touched them lewdly when they were 10 years old. Jeanette was 45 years old when she testified. Shawna was 38 years old when she testified. Shawna remembered being naked on top of defendant’s bare chest when she was five or six years old. As he had done to Jeanette, defendant moved her up and down his body. She told a therapist about this sexual abuse about six years before testifying, and later told her mother and sister. PROCEDURAL BACKGROUND In an amended information filed by the Riverside County District Attorney on November 3, 2016, defendant was charged with two counts of lewd and lascivious conduct with a child under the age of 14, in violation of Penal Code section 288, subdivision (a) (counts 1 and 2). He was also charged with a multiple-victim sex offense allegation in violation of Penal Code section 667.61, subdivisions (c) and (e)(4). On November 17, 2016, a jury found defendant guilty as charged. In December 2016, he was sentenced to prison for a total of 25 years to life. This was composed of the upper term of eight years for count 1 plus a consecutive term of two years (the middle term) for count 2, plus an indeterminate term of 15 years to life for the multiple-victims allegation. He received credits for good conduct, and 632 days actual custody credit for time served. Defendant filed a direct appeal, which was affirmed in its entirety. (People v. Layral,, supra, D074032.)
3 In 2019, the California Department of Corrections and Rehabilitation (CDCR) sent a letter to the trial court informing it that defendant’s sentence was not authorized and needed to be corrected. At a resentencing hearing held in October of 2019, defendant was sentenced to prison for a total term of 30 years to life, consisting of two consecutive indeterminate terms of 15 years to life, for counts 1 and 2. Defendant filed a timely notice of appeal. ANALYSIS I. The Trial Court Was Aware of its Sentencing Discretion Defendant urges that even though the sentencing court, on resentencing, was statutorily authorized to impose consecutive sentences on the two counts for which he was convicted, the case should be remanded because it does not appear the court knew it could sentence him concurrently. We disagree. The People urge this issue has been forfeited because defense counsel not only failed to raise the issue at the time of sentencing (see People v. Weddington (2016) 246 Cal.App.4th 468, 491), but in fact expressly informed the court there were no remaining questions about the resentencing. We conclude the issue has been forfeited. However, even if it were not forfeited, we conclude the court was aware of its discretion to sentence defendant concurrently. We review a trial court’s particular choice in sentencing under an abuse of discretion standard. (People v. Nicolas (2017) 8 Cal.App.5th 1165, 1182.) As the parties note, this is a highly deferential standard. (People v. Carmony (2004) 33 Cal.4th 367, 376.) The burden is on the party attacking the sentence to show it was an irrational or arbitrary decision. In the absence of 4 such a showing, the trial court is presumed to have acted legitimately. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) Examining the record before us, we cannot detect any comment by the trial court that it believed consecutive sentencing was required. As the People note, defendant relies on a mistake in the probation report that was prepared three years earlier, for the first sentencing hearing, which was corrected on resentencing. In addition, defendant’s observation that the sentencing court did not expressly speak to the issue of concurrent versus consecutive does not lead us to assume the court was not aware of its discretion. Finally, we note the trial court expressly stated it intended to sentence defendant consecutively, the implication being it was aware a selection choice was at hand. We conclude defendant has not carried his burden of showing the trial court was unaware of its discretion to sentence him concurrently. II. There was No Violation of Due Process Defendant argues his constitutional right to due process was violated by the court’s selection of consecutive sentences. We disagree. As the People note, the ordinary application of state procedural and evidentiary rules do not normally implicate a defendant’s constitutional rights unless the trial has been rendered fundamentally unfair. (People v. Fudge (1994) 7 Cal.4th 1075, 1102–1103; Estelle v. McGuire (1991) 502 U.S. 62, 70; Chambers v. Mississippi (1973) 410 U.S. 284, 302.) Moreover, due process entitles a defendant to “informed discretion” free from “ ‘misinformation of constitutional magnitude.’ ” (Roberts v. United States (1980) 445 U.S. 552, 556.)
5 Here, we find no constitutional error. As we have explained, the trial court acted within its discretion and there is insufficient evidence to conclude the trial court was unaware of its choices and responsibility. III. The Record Does Not Reflect Incompetency of Defense Counsel Defendant alleges his trial counsel was defective for failing to press the issue of a concurrent sentence. We do not believe the record supports such a conclusion. To establish incompetency of defense counsel, we must first determine counsel’s representation fell below an objective standard of reasonableness, and then demonstrate there was a reasonable probability that but for counsel’s unprofessional error, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 688; People v. Jones (2010) 186 Cal.App.4th 216, 234.) The resentencing was carried out to ensure the trial court corrected a previous sentencing error. As we have noted, there is nothing in the resentencing hearing that indicates the trial court was unaware it had a choice between concurrent and consecutive sentencing. Defense counsel had no additional burden to ask the court to repeat its discretionary selection. IV. The Actual Custody Credits Must Be Corrected Defendant urges he is entitled to correction of his actual custody credits. The People agree, as do we. Remand is not necessary to correct the award of credits.
6 V. DISPOSITION Defendant’s actual custody credits are corrected to reflect an additional 1,027 days. The Department of Corrections and Rehabilitation is ordered to correct the credits awarded defendant. In all other respects the judgment is affirmed.
BENKE, Acting P. J.
WE CONCUR:
HALLER, J.
AARON, J.
Cites, in this corpus
- People v. Nicolas G052512 · 2017-02-23
- People v. Weddington B256361 · 2016-04-13
- People v. Jones A126005 · 2010-06-30
- People v. Carmony No. S115090 · 2004-07-08
- People v. Superior Court No. S053029 · 1997-01-16
- People v. Fudge S004790. Crim. 26424 · 1994-06-30