The opinion
Filed 1/8/21
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076972
Plaintiff and Respondent,
v. (Super. Ct. No. SCS302035)
OLIVER PANOZO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Roderick W. Shelton, Judge. Affirmed in part, reversed in part, and
remanded.
Siri Shetty, under the appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Michael P.
Pulos and Joseph C. Anagnos, Deputy Attorneys General for Plaintiff and
Respondent.
A jury convicted Oliver Panozo of various offenses in connection with
two domestic violence incidents involving his former girlfriend. At
sentencing, the court rejected Panozo’s request to be placed on probation and
enrolled in Veterans Court. Instead, it imposed a three-year middle term on
the principal aggravated assault count.
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 Penal Code sections 1170.9 and 1170.91, he seeks
remand for resentencing.1 Tracing the relevant statutes and considering the
record, we agree remand is necessary. Sections 1170.9 and 1170.91 obligate a
court to consider a defendant’s service-related mental health issues, including
posttraumatic stress disorder (PTSD), as a mitigating factor in evaluating
whether to grant probation and in selecting the appropriate determinate
term. Although there was ample evidence of Panozo’s service-related PTSD
presented at sentencing, by all indications the court was unaware that it was
required to consider this mitigating factor when it denied probation and
imposed a three-year prison term. Accordingly, we must remand for a new
sentencing hearing to permit the court to exercise its statutory obligations
under sections 1170.9 and 1170.91. In all other respects, the judgment is
affirmed.
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
1 Further statutory references are to the Penal Code.
2
stayed the night. A month later, he violated a protective order, returned to
L.A.’s home, held her against her will, and threatened to harm her family. In
recorded jailhouse calls, Panozo cautioned L.A. not to report him or cooperate
with investigators.
Based on these events, a jury convicted Panozo of two counts of assault
with a deadly weapon (§ 245, subd. (a)(1), counts 2 & 3) and found true the
attached arming allegation that he personally used a deadly and dangerous
weapon. (§ 1192.7, subd. (c)(23)). It also convicted him of corporal injury to
an intimate partner (§ 273.5, subd. (a), count 4); attempting to dissuade a
victim from prosecuting a crime (§ 136.1, subd. (b)(2), count 6); disobeying a
court order (§ 273.6, subd. (a), count 7); making a criminal threat (§ 422,
count 8); two counts of attempting to dissuade a crime victim from reporting
a crime (§ 136.1, subd. (b)(1), counts 9 & 10); and violating a criminal
protective order (§ 166, subd. (c)(1)(A), count 11).2
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
2 After the jury hung on the burglary and criminal threat charges
(counts 1 & 5), and the court dismissed those counts.
3 Modeled after drug courts and offered in many states, Veteran
Treatment Courts aim to provide holistic and collaborative treatment to
3
term on the principal aggravated assault conviction (count 2) and probation
on all remaining counts.
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 (§ 1203, subd. (e)(2)).4 They argued
this was not the unusual case where the interests of justice would overcome
that presumption (Cal. Rules of Court,5 rule 4.413(c)) and asserted that the
resolve mental health and addiction issues that underlie a military veteran’s
criminal conduct. (See, e.g., Moore, Veterans Treatment Courts: Treating
Problems to Prevent Crimes (2019) 61 Orange County Lawyer 27, 27−28;
Arno, Proportional Response: The Need for More—and More Standardized—
Veterans’ Courts (2015) 48 U.Mich. J.L. Reform 1039, 1045−1049.)
4 A person who used a deadly weapon upon a human being in
perpetrating a crime is presumptively ineligible for probation, except in
“unusual cases in which the interests of justice would best be served if the
person is granted probation.” (§ 1203, subd. (e)(2).)
5 Further rule references are to the California Rules of Court.
4
facts did not warrant probation (rule 4.414).6 Claiming there were no
mitigating circumstances to consider, the People requested a six-year prison
term, consisting of a three-year middle term on the principal assault count
with consecutive sentencing on several subordinate counts.
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 (rule 4.413(c)). Nor
did it find probation warranted given the nature of the offenses and Panozo’s
prior history (rule 4.414). There were two mitigating factors listed in the
probation report in support of a grant of probation—Panozo’s expressed
willingness to comply with reasonable terms of probation, and social factors
suggesting he had an ability to comply with such terms. (Rule
4.414(b)(3)−(4).) By comparison, five aggravating factors were listed as
supporting a denial of probation: Panozo was armed; the victim was
vulnerable; he inflicted physical and emotional injury; he had unsatisfactory
past performance on probation; and his mental health and substance abuse
problems potentially impaired his ability to comply with reasonable terms of
probation. (Rule 4.414(a)(2)−(4), (b)(2), (b)(4).) Although the probation report
mentioned Panozo’s service in the Marine Corps from 2006 to 2010,
deployment to Iraq in 2009, other-than-honorable discharge following a DUI
conviction, PTSD diagnosis, and placement in the veterans module at county
jail, none of these facts were listed as mitigating factors supporting a grant of
probation.
6 Where a defendant is presumptively ineligible for probation under
section 1203, subdivision (e), rule 4.413(c) sets forth factors bearing on the
offender and the offense that “may indicate the existence of an unusual case
in which probation may be granted if otherwise appropriate.” Rule 4.414
likewise lists criteria “affecting the decision to grant or deny probation.”
5
At sentencing, Judge Shelton indicated he had reviewed the parties’
briefs and the probation report before inviting argument. Defense counsel
began by asking how a man who joined the Marines at age 18 and had no
violent record could find himself where he was. He posited that Panozo must
have been impacted by his service-related PTSD. In evaluating whether
Panozo overcame his presumptive ineligibility for probation, counsel urged
the court to consider that he “had no prior criminal violent offenses on his
record, certainly just DUI’s,” which were attributable to his “military service
where he coped with alcohol.” “He used [alcohol] as a mechanism to deal with
his mental distress, things he suffered during the war.” A toxic relationship
exacerbated his mental state, but counsel represented that Panozo was “a
changed man” and had strong family support. Accordingly, he requested
probation with a suspended sentence that would allow Panozo “to enroll in
Veterans Court to heal physically and mentally and get the help that he
deserves.” In the alternative, he sought the lower term on count 2.7
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
7 Assault with a deadly weapon carries a sentencing range of two, three,
or four years. (§ 245, subd. (a)(1).) Defense counsel initially described a two-
year term as the “middle term.” He later clarified that he meant to request
the two-year lower term.
6
many veterans experienced similar challenges, he requested a chance to
continue rehabilitation with the Veterans Moving Forward program in Vista.
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 section 654. The total sentence was three years in
state prison, with a total of 673 credits. After imposing various fines and
fees, the court wished Panozo luck and thanked him for his service.
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
7
resentencing.8 As we explain, the record strongly suggests the trial court
was unaware of its mandatory sentencing obligations, necessitating remand.
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.)
8 Panozo was released after this appeal was filed and is on parole
through June 2023. He argues his release does not affect his appeal, as any
excess credits resulting from a lower prison term imposed on remand could
reduce the length of his parole. The People do not suggest otherwise.
8
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
9
experiencing “post-traumatic stress disorder, substance abuse, or
psychological problems as a result of that service.” (§ 1170.9, former subd.
(a); Stats. 2006, ch. 788, § 2.) If a defendant met that criteria, was probation
eligible, and was placed on probation, the court had discretion to order him or
her committed to an appropriate “local, state, federal, or private nonprofit
treatment program for a period not to exceed that which the defendant would
have served in state prison or county jail.” (§ 1170.9, former subd. (b); Stats.
2006, ch. 788, § 2.) This version of the statute remained in effect until
January 1, 2011.
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
10
would not have granted probation given the severity of Ferguson’s crimes.
(Id. at p. 1093.)
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,
9 The statute also underwent minor revisions in 2012 and 2013. (Stats.
2012, ch. 403 (Assem. Bill No. 2371), § 1; Stats. 2013, ch. 46 (Sen. Bill No.
769), § 1.) These amendments are not pertinent to this appeal.
10 In light of the 2014 amendments to the statute, we agree with Panozo
that the reasoning of Ferguson, supra, 194 Cal.App.4th 1070 is no longer
persuasive. Ferguson involved a prior version of section 1170.9, which
required a sentencing court to first grant probation before considering
whether to place the defendant in an alternative treatment program.
(§ 1170.9, former subd. (b); Stats. 2006, ch. 788, § 2.) Since January 2015,
courts have been required to consider a defendant’s qualifying service-related
condition as a mitigating circumstance in every case where the defendant is
probation-eligible. (See § 1170.9, subd. (b)(1); Stats. 2014, ch. 163 (Assem.
Bill No. 2098), § 1, eff. Jan. 1, 2015.)
11
substance abuse, or mental health problems” as a mitigating factor in
selecting the appropriate determinate term under section 1170, subdivision
(b). (§ 1170.91; Stats. 2014, ch. 163, § 2.) With the exception of recall
procedures added in 2018 (Stats. 2018, ch. 523 (Assem. Bill No. 865), § 1),
section 1170.91 remains unchanged since its original enactment.
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.
11 The most recent amendment to section 1170.9 replaces “he or she” and
“his or her” in subdivision (a) with “the person” and “the person’s.” (Stats.
2019, ch. 497 (Assem. Bill No. 991), § 205, eff. Jan. 1, 2020.)
12
“(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. (§ 1202.7.)12 In
evaluating those needs, section 1170.9, subdivision (d) directs that “the court
shall consider the fact that the defendant is a person described in subdivision
(a).”
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
12 Added to the Penal Code in 2007 (Stats. 2007, ch. 579, § 47), section
1202.7 provides: “The Legislature finds and declares that the provision of
probation services is an essential element in the administration of criminal
justice. The safety of the public, which shall be a primary goal through the
enforcement of court-ordered conditions of probation; the nature of the
offense; the interests of justice, including punishment, reintegration of the
offender into the community, and enforcement of conditions of probation; the
loss to the victim; and the needs of the defendant shall be the primary
considerations in the granting of probation. It is the intent of the Legislature
that efforts be made with respect to persons who are subject to Section
290.011 who are on probation to engage them in treatment.”
13
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
14
1170.9 in 2006, the Legislature sought to ensure that judges were aware of
appropriate treatment programs for combat veterans with qualifying service-
related conditions. (See Stats. 2006, ch. 788 (Assem. Bill No. 2586), § 1(g).)
The 2014 amendments went further, requiring courts to consider a
defendant’s service-related condition as a factor in favor of granting
probation—not just as a consideration if probation were granted—and
mandating consideration of service-related conditions in determinate
sentencing even if probation were denied. (Stats. 2014, ch. 163 (Assem. Bill
No. 2098), §§ 1−2.) Given these developments, there is no basis to depart
from the pronouncement in Bruhn that a court’s compliance with the
mandates of sections 1170.9 and 1170.91 cannot be inferred from an
ambiguous record.13 Accordingly, we must determine whether our record
unambiguously reflects compliance.
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-
13 Bruhn further advises courts to “affirmatively indicate an exercise of
discretion under section 1170.9” and cautions that “[a]n intelligent exercise of
discretion cannot be inferred from a silent record.” (Bruhn, supra, 210
Cal.App.3d at p. 1200, italics added.) In so stating, the Bruhn court did not
explain what it meant by a “silent” record. Section 1170.9 was “obliquely
mentioned” at sentencing in Bruhn, but there was nothing to indicate that
the trial court understood its obligation to consider alternative sentencing.
(Ibid.) As will be discussed, our record lacks even an oblique reference to the
relevant statutes and provides no basis to believe the sentencing court was
aware of its mandatory obligations, strongly suggesting the opposite
conclusion. We therefore have no occasion to address what would happen if
the record were silent as to the reasons for a given discretionary sentencing
choice but otherwise supported an inference that the court was aware of its
legal obligations under sections 1170.9 and 1170.91.
15
year middle term on count 2. We review a trial court’s sentencing decisions
for an abuse of discretion, evaluating whether the court exercised its
discretion “in a manner that is not arbitrary and capricious, that is consistent
with the letter and spirit of the law, and that is based upon an ‘individualized
consideration of the offense, the offender, and the public interest.’ ” (People v.
Sandoval (2007) 41 Cal.4th 825, 847.) An abuse of discretion is found where
the court “relies upon circumstances that are not relevant to the decision or
that otherwise constitute an improper basis for decision.” (Ibid.) “A failure
to exercise discretion may also constitute an abuse of discretion.” (Id. at
pp. 847−848.) “ ‘A court which is unaware of the scope of its discretion
powers can no more exercise that ‘informed discretion’ than one whose
sentence is or may have been based on misinformation regarding a material
aspect of a defendant’s record.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354,
1391 (Gutierrez).)
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
16
there were no circumstances in mitigation. And although the probation
report described Panozo’s military service and PTSD diagnosis, it did not list
these circumstances among the mitigating factors supporting a grant of
probation or imposition of the lower term. At sentencing, the court indicated
it had read the parties’ submissions and the probation report. But none of
these materials, or the parties’ arguments, spoke to the court’s mandatory
obligations under sections 1170.9 and 1170.91.
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.
(§ 1170.9, subd. (a).) In addressing the request for probation and placement
in Veterans Court, it recited the aggravating and mitigating factors listed in
the probation report. Tracking the probation report, two mitigating factors
were noted—Panozo’s expressed willingness to comply with the reasonable
terms of probation, and his ability to do so given his age, education, health,
and family ties. Panozo’s service-related PTSD was not mentioned.
(§ 1170.9, subd. (b)(1).) Likewise, the court identified just one mitigating
factor in imposing the middle term on count 2—Panozo’s “very minimal
criminal history”—and did not mention his service-related PTSD.
(§ 1170.91.) The minutes do not reference sections 1170.9 and 1170.91, and
nothing in the record otherwise supports an inference that the court was
17
aware of its obligations under those statutes in exercising its sentencing
discretion.14
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; Cal. Rules of Court, rule 4.409),
we cannot rely on that presumption here.
“ ‘Defendants are entitled to sentencing decisions made in the exercise
of the “informed discretion” of the sentencing court.’ ” (Gutierrez, supra, 58
14 For example, there is no indication Panozo filed the Judicial Council’s
optional MIL-100 form, which notifies the court of a defendant’s military
status and provides sentencing information regarding sections 1170.9,
1170.91, and 1001.80. (See Rights and Protections for Veterans & Military
Families (<https://www.courts.ca.gov/37705.htm> [as of Jan. 7, 2021],
archived at <http://perma.cc/X9AL-Q278>).)
15 To the extent Panozo suggests the court used his military service
against him in listing various aggravating factors, we disagree. Section
1170.9, subdivision (b)(1) merely adds a defendant’s service-related PTSD as
a mandatory mitigating factor without altering standard criteria affecting the
grant or denial of probation. Consistent with rule 4.414(b)(4), the trial court
was entitled to consider whether Panozo’s “health, mental faculties, [or]
history of alcohol or other substance abuse” impacted his ability to comply
with reasonable terms of probation.
18
Cal.4th at p. 1391.) In an analogous context, Division Seven of the Second
Appellate District recently explained that where the record is not silent, but
rather is “at the very least ambiguous as to whether the court understood its
[statutory] obligation to consider youth-related mitigating factors at
sentencing before making the discretionary sentencing decision required by
Section 190.5, subdivision (b), remand is appropriate.” (People v. Ochoa
(2020) 53 Cal.App.5th 841, 853 (Ochoa).) The Ochoa court did not fault the
trial court for its misunderstanding, noting that neither the People nor
defense counsel had suggested a statutory obligation existed, but
nevertheless found remand necessary for the court to consider its sentencing
choices under the correct standard. (Ibid.)
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.)
19
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” (§ 1170.9, subd. (a)), the court was
statutorily required to make an eligibility determination and consider
service-related mitigating factors at sentencing. There is no indication the
court did either, and forfeiture in this context is inappropriate. (See In re
D.L. (2012) 206 Cal.App.4th 1240, 1244 [no forfeiture where minor was not
challenging the court’s failure to state reasons for a discretionary sentencing
choice but rather its failure to comply with its statutory obligations to
consider his suitability for deferred entry of judgment]; In re Sean W. (2005)
127 Cal.App.4th 1177, 1181−1182 [no forfeiture where defendant’s claim was
that the court misapprehended its discretion, not a challenge to how it
exercised that discretion].)16
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
16 Our conclusion that there was no forfeiture eliminates the need to
address Panozo’s alternative claim that trial counsel’s failure to object
amounted to constitutionally ineffective assistance.
20
here—that express findings were not required and statutory compliance
should be presumed—the appellate court held that a proper exercise of
discretion could not be presumed. (Id. at p. 1199.) The People’s attempt to
distinguish Bruhn based on Panozo’s presumptive ineligibility for probation
is unavailing. Nothing in section 1170.9 changes a court’s statutory
obligations where the defendant is merely presumptively ineligible for
probation. In such a case, a court must consider the defendant’s service-
related PTSD (or other qualifying condition) as a mitigating circumstance in
evaluating whether the case is unusual so as to overcome the presumption
and warrant a grant of probation.
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” (§ 1170.9, subd. (b)(1)). If probation is
granted, the court may consider placing Panozo in an appropriate treatment
program (§ 1170.9, subd. (b)(2)). But if probation is denied, it must consider
any service-related qualifying condition as a mitigating factor in selecting the
appropriate determinate term (§ 1170.91).
17 This issue appeared uncontested at the original sentencing hearing.
21
DISPOSITION
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.
22