People v. Ruskauff CA1/2

Filed 2/5/24 P. v. Ruskauff CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

A166516

v.

KEVIN MICHAEL RUSKAUFF, (Sonoma County

Super. Ct. Nos. SCR-742035-1,

Defendant and Appellant.

SCR-741742-1)

Defendant Kevin Michael Ruskauff appeals from the sentence imposed

after he entered no contest pleas in separate criminal cases. Defendant

contends the trial court erred, and defense counsel was ineffective, in failing

to address Penal Code section 1170, subdivision (b)(6)(A) (§ 1170(b)(6)(A)),

which provides a rebuttable presumption in favor of the lower term if the

defendant “has experienced psychological, physical, or childhood trauma”

that “was a contributing in the commission of the offense.” He also requests

a modification of the abstract of judgment.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Case No. SCR-741742-1

In September 2020, Jane Doe reported to a police officer that defendant

had threatened to kill her and her son in voice messages and texts sent from

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12 to 15 different phone numbers. After the officer attempted to call

defendant, he too began receiving threatening calls and texts; defendant

threatened to kill the officer and his family.

The Sonoma County District Attorney charged defendant with making

criminal threats to Doe (Pen. Code,1 § 422, subd. (a); count 1) and obstructing

an officer by means of threat (§ 69, subd. (a)); count 2). Defendant was also

alleged to have a prior conviction that qualified as a strike (§ 667, subds. (d)

and (e)) and serious felony conviction (§ 667, subd. (a)) (§ 667(a)).

In October 2020, the trial court suspended criminal proceedings

pursuant to section 1368.

Case No. SCR-742035-1

A few days after the court declared a doubt about his competence to

stand trial in Case No. SCR-741742-1, defendant barricaded himself in his

jail cell. When an emergency response team tried to enter his cell, defendant

threw a pitcher of urine and feces at the three deputies, hitting all three in

the face.

As a result of this incident, defendant was charged with three counts of

battery by gassing (§ 243.9, subd. (a)) with allegations of a prior strike and

serious felony conviction. The trial court again suspended criminal

proceedings pursuant to section 1368.

Commitment and Restoration to Competence

In both cases, the trial court found defendant not competent to stand

trial and ordered him committed to the state hospital. At Napa State

Hospital, defendant was diagnosed with “schizophrenia, multiple episodes”

and prescribed psychotropic medication.

1 Undesignated statutory references are to the Penal Code.

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In March 2022, a hospital psychologist found defendant competent to

stand trial. The psychologist reported that defendant “experienced a

significant change in mental status” while compliant with his medication;

defendant was now able “to have a meaningful bilateral conversation without

the interference of symptoms of mental health.”

The trial court found defendant competent and reinstated both criminal

proceedings.

Plea

On the day jury selection was scheduled to begin in both cases,

defendant entered an open plea of no contest to all charges and prior

conviction allegations in Case No. SCR-741742-1 and Case No. SCR-742035-

1. Defendant also stipulated to the following aggravating circumstances in

both cases: “under Rule 4.421, factor (a)(1), the crime involved great violence,

great bodily harm, threat of great bodily harm or other acts disclosing a high

degree of cruelty, viciousness or callousness, and factors under (b)(1), the

defendant has engaged in violent conduct that indicates a serious danger to

society, (2), the defendant’s prior convictions as an adult or sustained

petitions as a juvenile are numerous or of increasing seriousness, (3), the

defendant has served a prior term in prison or county jail under Section

1170(h), (4), the defendant was on probation, mandatory supervision, post

release community supervision or parole when the crime occurred, and, (5),

the prior performance on probation, mandatory supervision, post release

community supervision or parole was unsatisfactory.”

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Sentencing

In August 2022, defense counsel filed a sentencing memo in which he

(1) invited the court to strike defendant’s prior strike conviction (Romero2

motion) and dismiss the section 667(a) enhancement and (2) identified

mitigating factors. Counsel asked the court to find defendant outside the

spirit of the Three Strikes law, noting his current offenses “were clearly the

result of a mental illness.” He argued dismissal of the section 667(a)

enhancement was warranted because, among other things, “[t]he current

offense is connected to mental illness,” quoting section 1385, subdivision

(c)(2)(D). And counsel urged the court to impose the lower term because

“defendant was suffering from a mental or physical condition that

significantly reduced culpability for the crime,” quoting California Rules of

Court, rule 4.423(b)(2).3

At the sentencing hearing on August 31, 2022, the trial court denied

the request to dismiss the strike, citing defendant’s extensive criminal

history, but it granted the request to dismiss the five-year enhancement

under section 667(a), “based on the clear mental health situation.”

The trial court found the stipulated aggravating factors did, “in fact,

apply” and found as a mitigating factor “that the defendant was suffering a

mental condition that significantly reduced his culpability.” The court

determined the aggravating and mitigating factors were “in balance” and

imposed a middle term for the principal term.

2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

3 The prosecution filed an opposition to the Romero motion and

statement in aggravation. The probation officer filed a report documenting

defendant’s lengthy criminal history and recommending the upper term and

a total sentence of 19 years, eight months.

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The trial court sentenced defendant to 12 years, eight months in prison

composed of six years (the middle term of three years doubled due to the prior

strike conviction) for one count of gassing (count 1 in Case No. SCR-742035-

1); two consecutive two-year terms (one-third the middle term doubled) for

the other two gassing offenses (counts 2 and 3 in Case No. SCR-742035-1); a

consecutive 16 months (one-third the middle term of two years doubled) for

making criminal threats (count 1 in Case No. SCR-741742-1); and a

consecutive 16 months (one-third the middle term of two years doubled) for

obstructing an officer (count 2 in Case No. SCR-741742-1).

DISCUSSION

A. Failure to Address Section 1170(b)(6)(A)

1. The Law

Effective January 1, 2022, Senate Bill No. 567 (2021–2022 Reg. Sess.)

(S.B. 567) amended the determinate sentencing law, section 1170, in several

respects. Previously, the law granted trial courts “broad sentencing

discretion to determine whether the imposition of the lower, middle, or upper

term ‘best serve[d] the interests of justice.’ ” (People v. Mitchell (2022) 83

Cal.App.5th 1051, 1056.) But S.B. 567 established “a presumption of the

lower term” in certain specified circumstances. (People v. Flores (2022) 73

Cal.App.5th 1032, 1039; Stats. 2021, ch. 731, §§ 1.3, 3(c), adding § 1170, subd.

(b)(6).)

As relevant to defendant’s claims, section 1170, subdivision (b)(6), now

provides, “[U]nless the court finds that the aggravating circumstances

outweigh the mitigating circumstances that imposition of the lower term

would be contrary to the interests of justice, the court shall order imposition

of the lower term if any of the following was a contributing factor in the

commission of the offense: [¶] (A) The person has experienced psychological,

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physical, or childhood trauma, including, but not limited to, abuse, neglect,

exploitation, or sexual violence.”

2. Defendant’s Claim of Trial Court Error is Forfeited

Defendant asserts the trial court erred in “fail[ing] to address the

presumption of a lower term as statutorily required in light of the

schizophrenia contributing to [his] offense conduct.” However, the provision

defendant relies on, section 1170(b)(6)(A), refers to different types of

“trauma,” including “psychological” trauma; it does not create a presumption

in favor of the lower term whenever mental illness contributed to the

commission of the offense. (People v. Tilley (2023) 92 Cal.App.5th 772, 777

(Tilley).) Defendant seems to assume that debilitating mental illness, by

itself, automatically qualifies as psychological trauma, but he offers no

argument for this assumption, which is contrary to the language of the

statute and case law. (See id. at pp. 775, 777 [rejecting claim that the

sentencing court should have considered the defendant’s “mental health

problems” under section 1170(b)(6)(A); the statute “does not require the court

to impose the lower term because of defendant’s mental illness, but for

psychological trauma” and mental illness alone does not create a lower term

presumption].)

Defendant relies on People v. Banner (2022) 77 Cal.App.5th 226

(Banner), but he misunderstands that case. In Banner, the Court of Appeal

recognized that “psychological trauma based on mental illness may be a

circumstance qualifying for the lower term,” but emphasized, “we do not hold

mental illness alone qualifies for the lower term presumption.” (Id. at p. 241,

italics added.) Under Banner, a defendant may invoke section 1170(b)(6)(A)

based on mental illness only if the defendant’s mental illness resulted in

psychological trauma and “that trauma . . . contribute[d] to the crime.” (Ibid.)

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Here, defendant’s sentencing memo was filed over eight months after

S.B. 567 came into effect, and the trial court sentenced him the same month.

Yet, defendant did not request the lower term based on section 1170(b)(6)(A).

Defense counsel never argued that defendant’s mental illness caused him to

experience psychological trauma or that psychological trauma contributed to

the commission of the offenses. In this circumstance, defendant has forfeited

his claim that the trial court failed to consider section 1170(b)(6)(A). (See

Tilley, supra, 92 Cal.App.5th at p. 778 [where the defendant “did not seek the

lower term based on section 1170, subdivision (b)(6); object to the imposition

of the middle term; or argue that [he] suffered any psychological trauma as a

result of mental illness” his claim based on section 1170(b)(6)(A) was

forfeited]; People v. Achane (2023) 92 Cal.App.5th 1037, 1043–1044 [failure to

raise S.B. 567’s amendments to section 1170 after revocation of probation

months after S.B. 567 went into effect forfeited appellate claim for

resentencing under the amended statute].)

We reject defendant’s argument that forfeiture should not apply

because the trial court misapprehended its sentencing obligations. Nothing

in the record suggests the trial court misunderstood the law. Also unavailing

is defendant’s claim that defense counsel’s many references to defendant’s

mental illness and its severity sufficiently put the trial court on notice that

section 1170(b)(6)(A) was at issue. This argument again incorrectly assumes

that mental illness alone could qualify as psychological trauma under the

provision.

3. Defendant Fails to Show Ineffective Assistance of Counsel

Next, defendant contends defense counsel was ineffective in failing to

argue section 1170(b)(6)(A) applies. This contention fails on direct appeal.

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“On direct appeal, a conviction will be reversed for ineffective

assistance only if (1) the record affirmatively discloses counsel had no

rational tactical purpose for the challenged act or omission, (2) counsel was

asked for a reason and failed to provide one, or (3) there simply could be no

satisfactory explanation. All other claims of ineffective assistance are more

appropriately resolved in a habeas corpus proceeding.” (People v. Mai (2013)

57 Cal.4th 986, 1009; accord People v. Mendoza Tello (1997) 15 Cal.4th 264,

266–267 [habeas corpus is the more appropriate procedure to address an

ineffective assistance of counsel claim because it may include evidence of an

attorney’s reasons for making the complained-of decision, which is outside

the appellate record].)

Defense counsel was not asked why he did not raise section

1170(b)(6)(A) at sentencing, and a possible explanation for his omission is he

reasonably believed it did not apply in this case. While there is clear

evidence that defendant has schizophrenia and that his offenses were

connected to his mental health issues, we cannot say the record shows he

experienced psychological trauma based on his mental illness or that any

such trauma contributed to his crimes. (See Banner, supra, 77 Cal.App.5th

at p. 241.) Where “the appellate record does not disclose what mitigating

evidence was available that was not presented, or what reasons defense

counsel may have had for not presenting it,” we do not presume counsel was

ineffective. (People v. Anderson (2001) 25 Cal.4th 543, 598.) Any claim of

ineffective assistance based on defense counsel’s failure to raise section

1170(b)(6)(A) must be made in habeas proceedings. (See ibid. [“ ‘ “On a silent

record, as we have here, we will not assume that the defense counsel’s failure

to present mitigating evidence rendered his assistance ineffective. Any

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assertion that counsel was inadequate in this regard must be raised on

habeas corpus.” ’ ”].)

B. Abstract of Judgment

The abstract of judgment reflects assessments of $80 for court

operations per section 1465.8 and $60 for conviction assessments under

Government Code section 70373. Defendant argues the abstract of judgment

must be modified because the trial court orally imposed $40 for court

operations and $30 for the conviction assessment. We disagree.

The trial court first imposed the prison terms for the gassing

convictions in Case No. SCR-742035-1 and next imposed the terms for the

convictions in Case No. SCR-741742-1. The court then ordered fines and fees

as follows: “Restitution fine in each of the cases in the amount of $330 per

1202.4 of the Penal Code. An additional restitution fine of $330 per 1202.45

of the Penal Code is suspended unless parole is revoked. $40 court security

fee per Penal Code Section 1465.8 and a $30 criminal conviction fee pursuant

to Government Code Section 70373 is ordered.”

The minute order for Case No. SCR-742035-1 reflects that the court

ordered defendant to pay “$40 Court Security Fee” and “$30 Criminal

Conviction Fee,” and the minute order for Case No. SCR-741742-1 reflects the

same assessments.

When “reporter’s and clerk’s transcripts are in conflict,” the record

“ ‘will be harmonized if possible.’ ” (People v. Smith (1983) 33 Cal.3d 596,

599.) Here, the reporter’s transcript, minute orders, and abstract of

judgment can be harmonized by reading the trial court’s imposition of

assessments as applying in each of the two cases. Thus, the trial court

ordered defendant to pay a $40 court security assessment in Case No. SCR-

742035-1 and another $40 court security assessment in Case No. SCR-

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741742-1 for a total assessment of $80 as reflected in the abstract of

judgment. Likewise, defendant is to pay a $30 conviction assessment in Case

No. SCR-742035-1 and another $30 conviction assessment in Case No. SCR-

741742-1 for a total assessment of $60 as reflected in the abstract of

judgment. No correction to any part of the record is necessary.

DISPOSITION

The judgment is affirmed.

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_________________________

Miller, J.

WE CONCUR:

_________________________

Stewart, P.J.

_________________________

Richman, J.

A166516, People v. Ruskauff

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