P. v. Bryant



















Filed 3/11/13 P. v. Bryant CA3











NOT TO BE PUBLISHED









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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Yuba)

----






>

THE PEOPLE, Plaintiff and Respondent, v. JODY NICOLE BRYANT, Defendant and Appellant.

C070414 (Super. Ct. No. CRF11-437)

Defendant
Jody Nicole Bryant pleaded no contest to voluntary
manslaughter (Pen. Code, § 192, subd. (a)) in exchange for a sentencing lid
of six years in state prison. The trial court sentenced defendant to the
six-year lid. Defendant appeals her
sentence making a single claim: the
trial court failed to rule on the
request for judicial notice she submitted in her sentencing
statement. We affirm.

BACKGROUND

Defendant
pleaded no contest to voluntary manslaughter, a crime which resulted in the
death of defendant’s boyfriend Jarrett Reynolds. Prior to sentencing in this matter, defendant
submitted a “sentencing statement” to
the trial court asking the court to grant defendant probation or, alternately,
to impose the low term of three years in state prison. Attached to that statement were numerous
letters and a psychological evaluation of defendant authored by Philip. S.
Trompetter, Ph.D., ABPP. In his
evaluation, Dr. Trompetter noted defendant had been gang-raped in high school,
was molested when she was a small child, and been forced into anal sex with the
decedent. Dr. Trompetter also noted
defendant had a significant history of substance abuse, including alcohol,
marijuana, and methamphetamine.

Dr.
Trompetter diagnosed defendant with major depressive
disorder with recurrent episodes of severe depression, and symptoms
consistent with chronic posttraumatic stress disorder (PTSD) from the gang rape
and molestation. He also concluded
defendant met the criteria for polysubstance dependence (alcohol and marijuana
at the time of the report). With respect
to defendant’s stabbing of the decedent, Dr. Trompetter opined that defendant
“expressed a reasonable fearfulness of [the decedent] based on his threatening
and abusive behavior. She is chronically hypervigilant to threats to her safety
based on her history of trauma and her previous experience with abusive men,
including [the decedent].” Dr.
Trompetter described defendant as “the perfect victim,” unable to navigate
complex relationships.

Defendant
included in her statement the following request for judicial notice: “defendant respectfully requests the court to
take judicial notice of the following Yuba
County cases and any probation
reports contained therein in the case of Jarrett Reynolds CRF06-706 and Adam
Kelly CRF11-175. Defendant believes it
is critical for the court to view the victim’s history of violence against
women. Likewise, defendant believes it
is critical for the court to understand that her PTSD is not mere affect[ation],
but a documented condition in which the defendant has been the victim of a
violent crime.” The records for which
defendant sought judicial notice were not all attached to the request.

At
sentencing, the trial court heard from the decedent’s family, noted it read the
probation report, and read defendant’s sentencing statement. Counsel for defendant argued for probation or
the low term. Counsel argued defendant had
no record and “had been victimized since she was in high school .
. . .” Counsel argued the
decedent himself had victimized defendant, and had a history of abusing other
women. Finally, counsel noted
defendant’s remorse as a mitigating factor.
The People argued for the six-year lid, as recommended by
probation.

The trial court
found this was not an unusual case, rendering her eligible for probation, and
sentenced defendant to six years in state prison. The court reasoned the decedent was unarmed
and defendant was the aggressor in the fight that lead to the killing. Moreover, the court noted, two children
witnessed the killing, and defendant acted with “extreme callousness, extreme
viciousness, . . . end[ing] [the victim’s] life over a spat that
[defendant] started.” The court thus
concluded: “I think I’ve given correct weight
to all of the factors in this case, and the senseless killing of an unarmed
man, unprovoked by anything he did that day, warrants the maximum sentence that
I can impose in this case, which is six years.”


The trial
court imposed numerous fines and fees and awarded defendant a total of 144 days
of presentence custody credits. After
imposing sentence, the court asked defendant’s counsel, “And did I miss anything on behalf of the
defense . . . .”
Counsel responded, “No, Your Honor.”


DISCUSSION

Defendant’s
sole contention on appeal is the trial court erred in failing to rule on her
request for judicial notice. Defendant
makes numerous arguments in support of the claimed error none of which succeed
because it was defendant’s burden in the trial court to obtain a ruling on her
request; her failure to do so forfeits the issue on appeal. (People
v. Rowland (1992) 4 Cal.4th 238, 259 [if defendant does not secure an
evidentiary ruling, defendant does not preserve the point for appeal].)

To the
extent defendant argues the issue cannot be forfeited because the Evidence Code
creates a mandatory duty, her argument fails because we presume under Evidence
Code section 664 that the court correctly performed its official duties.

Anticipating
we may find her claim forfeited, defendant argues trial counsel rendered
constitutionally deficient assistance by failing to secure a ruling on her
request for judicial notice.

“To
establish entitlement to relief for ineffective assistance of counsel the
burden is on the defendant to show (1) trial counsel failed to act in the
manner to be expected of reasonably competent attorneys acting as diligent
advocates and (2) it is reasonably probable that a more favorable determination
would have resulted in the absence of counsel’s failings. [Citations.]”
(People v. Lewis (1990)
50 Cal.3d 262, 288.)

In
defendant’s sentencing statement, defendant argued the records of which she
wanted the trial court to take judicial notice were relevant to show the
decedent’s history of violence against women.
Even without securing a ruling on defendant’s request for judicial
notice, counsel argued the decedent had a history of violence against women,
including defendant. Counsel also argued
defendant had a history of being abused and was, herself, a victim. Having argued the point without obtaining a
ruling on the request for judicial notice, trial counsel was not deficient for
failing to press the court for a ruling.

DISPOSITION

The
judgment is affirmed.





NICHOLSON , J.



We concur:





RAYE , P. J.





DUARTE , J.