California Court of Appeal Apr 9, 2025 No. E081511Unpublished
Filed 4/9/25 P. v. White CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E081511
v. (Super.Ct.No. INF2300211)
WADE ORA WHITE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Shay Dinata-Hanson, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Christopher P. Beesley and Michael J. Patty,
Deputy Attorneys General, for Plaintiff and Respondent.
1
A jury convicted Wade Ora White of one count of assault with a firearm (Pen.
Code, § 245, subd. (a)(2)) and one count of making a criminal threat (Pen. Code, § 422)
and found true personal use firearm enhancements associated with each count (Pen.
Code, § 12022.5, subd. (a); undesignated statutory references are to this code). In 2023,
the trial court sentenced White to six years in state prison, composed of a two-year low-
Instead, he relies on the fact that the trial court did not make any reference to section
1170(b)(6) or section 1385(c) to support his contention that the trial court misunderstood
or was unaware of its sentencing obligations under those provisions. (Coleman, at
p. 724.) But White was sentenced one and one-half years after the relevant amendments
to section 1170(b)(6) and section 1385(c) became effective. “We assume the trial court
was aware of and followed applicable law.” (Coleman, at p. 724; People v. Stowell
(2003) 31 Cal.4th 1107, 1114.)
Moreover, the record affirmatively demonstrates that the trial court was aware of
the 2022 amendments to section 1170 affecting its choice between the low, middle, and
upper terms of a sentencing triad when it correctly stated that it was “supposed to start at
[the] midterm.” The court explicitly recognized that the statute now provided a general
presumption favoring the middle term. (§ 1170, subd. (b)(1).) Under these
circumstances, we cannot conclude from the court’s silence about section 1170(b)(6) and
12
section 1385(c) that the court misapprehended the applicable sentencing law and the
discretion afforded under those provisions. (Coleman, supra, 98 Cal.App.5th at p. 724.)
We accordingly conclude that White forfeited the arguments that he makes on appeal by
failing to object below. (Ibid. [the defendant’s argument on appeal that the trial court
erred by not dismissing any enhancements under § 1385(c) “is forfeited for failure to
request that the trial court strike the enhancements under section 1385”]; Tilley, supra, 92
Cal.App.5th at p. 778 [the defendant did not seek a lower term under § 1170(b)(6) or
object to imposition of the middle term and thus forfeited the argument concerning the
low-term presumption].)
White argues in the alternative that if his trial counsel’s inaction resulted in
forfeiture of the arguments that he now raises, then counsel rendered ineffective
assistance. The argument lacks merit.
“To establish ineffective assistance of counsel, a defendant must show that
counsel’s representation fell below an objective standard of reasonableness under
prevailing professional norms, and counsel’s deficient performance was prejudicial, that
is, there is a reasonable probability that, but for counsel’s failings, the result would have
been more favorable to the defendant.” (People v. Sepulveda (2020) 47 Cal.App.5th 291,
301; Strickland v. Washington (1984) 466 U.S. 668, 687-692.) A defendant asserting
ineffective assistance of counsel on direct appeal bears a “‘difficult’” burden because “a
reviewing court will reverse a conviction based on ineffective assistance of counsel on
direct appeal only if there is affirmative evidence that counsel had ‘no rational tactical
13
purpose’ for an action or omission.” (People v. Mickel (2016) 2 Cal.5th 181, 198.)
“When the record on direct appeal sheds no light on why counsel failed to act in the
manner challenged, [the] defendant must show that there was ‘“‘no conceivable tactical
purpose’”’ for counsel’s act or omission.” (People v. Centeno (2014) 60 Cal.4th 659,
675; People v. Caro (2019) 7 Cal.5th 463, 488.) “Representation does not become
deficient for failing to make meritless objections.” (People v. Ochoa (1998) 19 Cal.4th
353, 463.)
White fails to demonstrate that his trial counsel’s performance fell below an
objective standard of reasonableness. The low-term presumption under section
1170(b)(6) does not apply unless the defendant’s psychological trauma “was a
contributing factor in the commission of the offense.” (§ 1170(b)(6); id., subd.
(b)(6)(A).) Likewise, under section 1385(c), the court “shall consider and afford great
weight” to the mitigating circumstance of the defendant’s mental illness only if “[t]he
current offense is connected to mental illness” (§ 1385, subd. (c)(2)(D)), meaning that
“the court concludes that the defendant’s mental illness substantially contributed to the
defendant’s involvement in the commission of the offense” (id., subd. (c)(5)). The trial
court expressly rejected the contention that White’s PTSD contributed to the underlying
offenses, stating: “I can understand why someone might have PTSD from a car accident.
[¶] But—but not in a way that would explain that reaction to what amounts to an insult.
And the escalation from what amounts to a fairly de minimis insult to—to the display of a
gun—not just the display of a gun, the—the aggressive use of the gun, putting it in
14
someone’s face, is extraordinarily concerning to me.” In light of the trial court’s finding
that White’s PTSD did not contribute to the offenses, any objection that the low-term
presumption under section 1170(b)(6) applied because of the PTSD or that the firearm
enhancement should be dismissed under section 1385(c) because of the PTSD would
have been meritless. White’s trial counsel was not deficient for failing to make meritless
objections. (People v. Kipp (1998) 18 Cal.4th 349, 373 [“Measured against the standard
of a reasonably competent attorney, defense counsel’s performance was not deficient
merely because counsel failed to make these meritless motions”].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
FIELDS Acting P. J.
RAPHAEL J.
15
AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant forfeited his claims regarding the trial court's failure to apply sentencing presumptions under Penal Code sections 1170(b)(6) and 1385(c) by failing to raise them at sentencing, and that trial counsel was not ineffective for failing to make meritless objections.
Issues
Whether the trial court erred by failing to apply the low-term sentencing presumption under Penal Code section 1170(b)(6) due to the defendant's PTSD.
Whether the trial court erred by failing to dismiss a firearm enhancement under Penal Code section 1385(c) based on the defendant's PTSD.
Whether trial counsel rendered ineffective assistance by failing to raise these sentencing arguments in the trial court.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We assume the trial court was aware of and followed applicable law.”
“Representation does not become deficient for failing to make meritless objections.”