People v. PanozoPeople v. Panozo
Panozo challenges his sentence on appeal. Arguing the trial court was unaware of its statutory obligation to consider his service-related PTSD as a mitigating factor under
FACTUAL AND PROCEDURAL BACKGROUND
Because Panozo challenges only his sentence on appeal, we draw our brief discussion of the underlying facts from the parties’ briefs. Panozo entered the home of his ex-girlfriend L.A. in the middle of the night, put a knife to her throat, and then turned the knife on a friend of L.A.‘s who had
Based on these events, a jury convicted Panozo of two counts of assault with a deadly weapon (
Panozo filed a sentencing memorandum asking the court to “exercise its discretion and sentence him to a suspended prison sentence, grant probation, and permit him to enroll in Veteran‘s Court.” Claiming that PTSD from serving as a Marine in Iraq “partially led him to where he is now,” he noted his acceptance into the county jail‘s “Veterans Moving Forward Program” for mental health treatment. Highlighting his family support and military service, Panozo expressed willingness to comply with probation and stated he was “exactly the type of candidate for which Veteran‘s Court was designed.”3 In the event the court denied probation, he requested a two-year
Panozo submitted several supporting exhibits. Letters from a psychiatrist confirmed his diagnoses for PTSD, alcohol use disorder, and unspecified anxiety disorder. A handwritten note from Panozo to the trial judge described his struggles with PTSD and combat-associated addiction at the time of his crimes. A picture showed Panozo in dress uniform; certificates reflected various promotions, awards, and coursework with the Marines. A letter from the Veterans Moving Forward program at the Vista Detention Facility, where Panozo was incarcerated presentence, described wellness classes Panozo was taking and indicated he was “learning to recognize the issues which resulted in his criminal behavior and healthy ways to change this behavior for the better.” Appended to the letter was a reentry plan that Panozo proposed, requiring him to attend Veterans Village of San Diego Recovery Program as a condition of his probation.
In their sentencing memorandum, the People noted that Panozo was presumptively ineligible for probation (
The probation department made a similar recommendation of 6 years, 4 months in state prison. The probation report did not find this an unusual case overcoming presumptive ineligibility for probation (
Panozo and his father then addressed the court. His father explained that the family was suffering, and Panozo “put his life [at risk] when he was a Marine when serving in Iraq.” Panozo told the court that he was a veteran and described his deployment in Iraq. He lost a fellow Marine in combat, and another—a close friend—to suicide. Those experiences left him with PTSD, and sleeplessness led to alcohol abuse. Psychiatric assistance and treatment from the Veterans Administration “proved beneficial.” Alcohol had been his crutch, but a year of sobriety gave him a path forward. Commenting that
The prosecutor argued against probation, claiming “actions speak louder than words.” Although Panozo struggled with PTSD and alcohol use, he had sought treatment for about a year “and still these incidents happened.” Highlighting how he “terrorized” his former girlfriend, the prosecutor urged the court to impose a six-year total term.
The court then pronounced the sentence. Observing that Panozo was presumptively ineligible for probation, the court quoted the aggravating and mitigating circumstances listed in the probation report. Finding the aggravating circumstances outweighed the mitigating ones, the court denied probation with a referral to Veterans Court. Instead it imposed a three-year middle term on the principal aggravated assault conviction, weighing the use of a weapon and gravity of the crimes against Panozo‘s “very minimal criminal history.” The court ran the remaining counts concurrently, staying some of the counts under
DISCUSSION
Sections 1170.9 and 1170.91 obligate a sentencing court to consider a criminal defendant‘s qualifying service-related conditions as mitigating circumstances in making discretionary sentencing choices. Panozo claims the trial court was unaware of its obligations under these statutes when it denied probation and imposed the middle term on count 2. He seeks remand for
1. Overview of Sections 1170.9 and 1170.91
Section 1170.9 has undergone substantial revisions since its original enactment decades ago. Although there are several cases construing earlier versions of the statute, there appears to be no published authority interpreting section 1170.9 in its present form, nor of the more recently enacted section 1170.91. In addressing Panozo‘s sentencing error claim, we therefore begin by examining the applicable statutes, providing historical background for context.
a. Historical background
Section 1170.9 authorizes alternative commitment for eligible military veterans convicted of felonies. Originally enacted in 1982 to address combat veterans who served in Vietnam, the statute required sentencing courts to “consider whether the defendant was a member of the military forces of the United States who served in combat in Vietnam and who suffers from substance abuse or psychological problems resulting from that service.” (Former § 1170.9; Stats. 1982, ch. 964, § 1.) If the defendant was such a person, the court had discretion to “order the defendant committed to the custody of federal correctional officials for incarceration for a term equivalent to that which the defendant would have served in state prison.” (Ibid.) This basic framework remained in place when the statute was renumbered and amended in 1983 and did not change until statutory amendments took effect on January 1, 2007. (Former § 1170.9; Stats. 1983, ch. 142, § 121.)
As cases decided during this 23 year period made clear, the statutory dictate was “mandatory rather than permissive“—while it did not require the sentencing judge to choose federal incarceration for eligible veterans, it did require the judge to consider whether the defendant met the eligibility criteria. (People v. Bruhn (1989) 210 Cal.App.3d 1195, 1199 (Bruhn); accord People v. Abdullah (1992) 6 Cal.App.4th 1728, 1735 (Abdullah).) Consistent with its purpose of affording Vietnam veterans every opportunity for rehabilitative treatment, a proper exercise of the court‘s discretion would not be inferred on an ambiguous record. (Bruhn, supra, at pp. 1199−1200; see also People v. Ruby (1988) 204 Cal.App.3d 462, 467 (Ruby) [remanding where trial court determined defendant had service-related PTSD but misapprehended when alternative sentencing was authorized].) On the other hand, because the statute only provided for a commitment to federal custody, no abuse of discretion would be found where no appropriate federal program existed. (Abdullah, supra, at pp. 1736−1737; People v. Duncan (2003) 112 Cal.App.4th 744, 748.)
In 2006, the Legislature amended section 1170.9 to reach combat veterans returning from more recent wars in Iraq and Afghanistan. (Stats. 2006, ch. 788 (Assem. Bill No. 2586), § 1(d).) In extending alternative sentencing to all veterans, the Legislature disclaimed any intent to expand probation eligibility. (Id., § 1(f).) Instead, it sought “to ensure that judges are aware that a criminal defendant is a combat veteran with these conditions at the time of sentencing and to be aware of any treatment programs that exist and are appropriate for the person at the time of sentencing if a sentence of probation is appropriate.” (Id., § 1(g).) Effective January 1, 2007, sentencing courts were required to hold a presentence hearing to determine whether the defendant was a combat veteran
Only one published case construed section 1170.9 in this period: People v. Ferguson (2011) 194 Cal.App.4th 1070 (Ferguson). Elijah Ferguson, a combat veteran who served in Iraq, attributed his drunk-driving convictions to service-related substance abuse and PTSD. The trial court decided not to apply section 1170.9 for several reasons. (Id. at pp. 1090−1091.) Operating on the mistaken belief that a firearm use allegation was sustained, it determined Ferguson was ineligible for probation. (Id. at p. 1091.) It also found Ferguson failed to establish that he committed the offenses because of service-related PTSD. (Ibid.) Finally, to invoke alternative sentencing under section 1170.9, the court had to actually place the defendant on probation, which it said it was unlikely to do. (Ibid.) The appellate court agreed with Ferguson that the trial judge was incorrect in believing he was probation-ineligible. (Id. at p. 1092.) Nonetheless, that was only one of several reasons the judge gave for denying probation, and a single valid reason would suffice. (Ibid.) Alternative sentencing was not triggered under section 1170.9, former subdivision (b) unless “the court places the defendant on probation” (Stats. 2006, ch. 788, § 2), and it was clear to the appellate court that the trial judge
Section 1170.9 was amended in 2010 to expand the categories of qualifying mental illnesses and eliminate the requirement of service in combat theater. (Stats. 2010, ch. 347 (Assem. Bill No. 674), § 1.)9 In 2014, the Legislature modified section 1170.9 to additionally require courts to consider a convicted defendant‘s service-related health condition “as a factor in favor of granting probation.” (Stats. 2014, ch. 163 (Assem. Bill No. 2098), § 1.) Whereas former subdivision (b) of section 1170.9 permitted alternative sentencing if the defendant was probation eligible and actually placed on probation (§ 1170.9, former subd. (b); Stats. 2006, ch. 788, § 2), revised subdivision (b) obligated a court to consider service-related health factors as a mitigating factor in favor of granting probation. This framework for section 1170.9 remains largely the same today.10
When the Legislature amended section 1170.9 in 2014, it also enacted a new statute requiring the court to consider a defendant‘s service-related “sexual trauma, traumatic brain injury, post-traumatic stress disorder,
b. Operative statutory language
We provide this statutory history solely for context. At the time of Panozo‘s sentencing in November 2019, section 1170.9 addressed the effect of service-related psychological conditions on the court‘s decision whether to grant probation. It provided in relevant part:
“(a) 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, post-traumatic stress disorder, 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, post-traumatic stress disorder, substance abuse, or mental health problems as a result of his or her service. The court may request, through existing resources, an assessment to aid in that determination.[11]
“(b)(1) If 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.
“(2) If the court places the defendant on probation, the court may order the defendant into a local, state, federal, or private nonprofit treatment program for a period not to exceed that period which the defendant would have served in state prison or county jail, provided the defendant agrees to participate in the program and the court determines that an appropriate treatment program exists.”
Courts are required as a general matter to consider the “needs of the defendant” in deciding whether to grant probation. (
In a parallel fashion, section 1170.91 addressed the effect of similar service-related conditions if the court decided to deny probation. At the time of Panozo‘s sentencing, subdivision (a) of that statute provided:
“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, post-traumatic stress disorder, 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 parties have not cited, nor have we found, published case authority construing the operative versions of sections 1170.9 and 1170.91. Deferring to their unambiguous plain meaning, as we must (see People v. Ruiz (2018) 4 Cal.5th 1100, 1105−1106; People v. Colbert (2019) 6 Cal.5th 596, 603), the statutes speak in terms that are mandatory rather than permissive. Section 1170.9, subdivision (a) provides that a sentencing court “shall . . . make a determination” as to whether a convicted defendant has a qualifying service-related condition. If the defendant meets that criteria, the court “shall consider” that circumstance under subdivision (b) “as a factor in favor of granting probation.” Likewise, section 1170.91, subdivision (a) provides that a sentencing court “shall consider” the defendant‘s qualifying service-related condition “as a factor in mitigation” when selecting the appropriate determinate term. Despite statutory amendments in the intervening years, the import of earlier cases still holds true. By their plain language, sections 1170.9 and 1170.91 unambiguously obligate a sentencing court to consider a defendant‘s service-related PTSD, substance abuse, or other qualifying conditions in making discretionary sentencing choices. (See Bruhn, supra, 210 Cal.App.3d at p. 1199; Abdullah, supra, 6 Cal.App.4th at p. 1735.)
Explaining why an ambiguous record would necessitate remand, earlier cases emphasized the statutory purpose of providing veterans every opportunity to obtain meaningful rehabilitative treatment. (Bruhn, supra, 210 Cal.App.3d at p. 1199; see, e.g., Ruby, supra, 204 Cal.App.3d at p. 468.) Time has only strengthened the Legislature‘s resolve to mandate special consideration for affected veterans at sentencing. In overhauling section
2. At a minimum, the record is ambiguous as to whether the court was aware of its mandatory obligations under sections 1170.9 and 1170.91, necessitating remand.
Panozo argues the trial court failed to consider his service-related PTSD as a mitigating factor when it denied probation and imposed the three-
A careful review of the sentencing record demonstrates that despite ample references to Panozo‘s service-related PTSD, there is no indication the court understood its obligation to consider that fact as a circumstance in mitigation when making discretionary sentencing choices. Indeed, the opposite inference emerges. Panozo‘s sentencing brief asked for probation, referenced his service-related PTSD, and provided documentation to support his diagnosis and request for treatment. And defense counsel argued extensively at sentencing that his client‘s crimes were the byproduct of his military service, warranting probation or imposition of the lower term. But neither the briefs nor the argument referenced sections 1170.9 or 1170.91 or suggested the court was obligated to consider Panozo‘s service-related PTSD as a mitigating factor. These statutes were likewise not referenced in the People‘s sentencing brief or argument. Indeed, the prosecutor maintained
Apart from the written submissions and arguments, the trial court‘s oral pronouncements reveal no awareness of its obligations under sections 1170.9 and 1170.91. Faced with uncontested evidence that Panozo had served as a combat veteran in Iraq and attributed his criminal behavior to service-related PTSD and substance abuse, the court made no eligibility determination as to whether he had a qualifying service-related condition. (
The court was plainly aware that Panozo served in Iraq, struggled with PTSD and alcohol use, and requested probation and treatment through Veterans Court. It closed by thanking Panozo for his service: “it‘s never easy putting someone in prison, . . . especially someone who did fight for our country.” But as Panozo observes, nothing indicates the court appreciated that it was required to consider his service-related PTSD as a mitigating factor in denying probation and imposing the three-year middle term. To the contrary, the court listed the mitigating and aggravating factors it considered on the record, and Panozo‘s service-related PTSD was not among them.15 While the People are correct that sentencing courts are generally presumed to have acted in accordance with legitimate sentencing objectives (see Ferguson, supra, 194 Cal.App.4th at p. 1091;
” ‘Defendants are entitled to sentencing decisions made in the exercise of the “informed discretion” of the sentencing court.’ ” (Gutierrez, supra, 58
We follow the same course here. There is no evidence the trial court was aware of its statutory obligation to consider service-related mitigating factors at sentencing—rather, all indications are to the contrary. Defense counsel did not cite the applicable statutes, nor did he otherwise explain that the court was required to consider these service-related issues as factors in mitigation. And neither the prosecution nor the probation department acknowledged the issues as mitigating circumstances. Given the court‘s rejection of the prosecution‘s requests to impose the upper term and run subordinate counts consecutively, there is no indication that remanding for resentencing to permit consideration of sections 1170.9 and 1170.91 would be an idle act. (See People v. Barber (2020) 55 Cal.App.5th 787, 814 [“When a court is unaware of its discretion, the remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion if it had been aware of its discretion.“].) Here, as in Ochoa, the court‘s apparent failure to consider mandatory mitigating factors at sentencing necessitates remand. (Ochoa, supra, 53 Cal.App.5th at p. 853.)
Citing People v. Scott (1994) 9 Cal.4th 331, the People argue Panozo forfeited his claim by failing to object when the court did not list his service-related PTSD as a mitigating factor. Scott held that “complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal.” (Id. at p. 356.) But Panozo does not challenge the manner in which the trial court exercised its sentencing discretion but rather its apparent misapprehension of statutory sentencing obligations. Once Panozo “allege[d] that he . . . committed the offense as a result of . . . [PTSD] . . . stemming from service in the United States military” (
Ultimately, this case follows much the same path as Bruhn, supra, 210 Cal.App.3d 1195, where materials submitted at sentencing reflected the defendant‘s service-related PTSD but the trial court made no further comment in denying alternative sentencing and imposing a middle term. (Id. at p. 1198.) Rejecting an argument similar to that raised by the People
In short, our record necessitates remand because it is, at the very least, ambiguous as to whether the trial court was aware of its statutory obligations under sections 1170.9 and 1170.91. Pursuant to section 1170.9, subdivision (a), the trial court on remand must “make a determination” as to whether Panozo may have a qualifying service-related health condition.17 An affirmative finding will obligate the court to consider that circumstance “as a factor in favor of granting probation” (
The matter is remanded for a new sentencing hearing at which the trial court should satisfy its statutory obligations under sections 1170.9 and 1170.91. In all other respects, the judgment is affirmed.
DATO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.