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Name: People v. Tilley (2023) 92 Cal.App.5th 772
Case #: C096411
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 06/20/2023

Defendant’s claim that the trial court erred by failing to consider the low-term presumption of Penal Code section 1170(b)(6) was forfeited where defendant did not raise the issue, and trial counsel was not prejudicially ineffective for failing to raise the issue. Defendant pleaded no contest to robbery and was sentenced to the middle term. On appeal, he argued the trial court abused its discretion in imposing the middle term because the court did not consider his mental health problems in accordance with section 1170(b)(6). Held: Affirmed. Section 1170(b)(6), created a presumption in favor of the lower term if a defendant’s psychological, physical, or childhood trauma contributed to the commission of the offense. Psychological trauma based on mental illness may qualify the individual for the lower term presumption in section 1170(b)(6), but psychological trauma must attend the illness and contribute to the crime. The claim here was forfeited because trial counsel did not seek the lower term based on section 1170(b)(6); object to the imposition of the middle term; or argue that defendant suffered any psychological trauma as a result of mental illness. Regarding his claim of ineffective assistance of counsel, defendant failed to establish it was reasonably probable the court would have sentenced him to the lower term if counsel had objected to the imposition of the middle term.

Trial court’s inaccurate advisement that defendant would be subject to a 3-year (rather than a 2-year) parole term does not require correction, as the court’s statement was merely an advisement and not an attempt to impose a specific parole term. When the trial court imposes a determinate term under section 1170, it is required to inform the defendant at sentencing that, after the expiration of their prison term, they may be on parole for a period as provided by Penal Code section 3000 or 3000.08. Although the trial court is required to advise the defendant, the duration and conditions of parole are established by the Legislature and the parole authority or CDCR. Section 3000.01 now limits, with exceptions not applicable here, the period of parole for an inmate serving a determinate term to two years. (§ 3000.01, subd. (b)(1).) At sentencing, the court advised defendant, pursuant to section 3000(b), that he would be on parole for three years following his release from custody. Based on the Court of Appeal’s presumption of the trial court’s knowledge of both its obligations and the limits of its authority, the court construed the trial court’s statement about the parole term as an advisement of the length of the parole term, rather than an attempt to impose a specific parole term. Since the length of the parole term was merely an advisement, the Court of Appeal found no need to modify the judgment. [Editor’s Note: The court noted that current statutory inconsistencies put trial courts in a bit of a conundrum when advising of the parole term, but it is up to the Legislature to amend all the relevant statutes to reflect the correct parole terms.]