Reported / Citable
Background
Mark Nielsen entered a global plea disposition resolving four cases in Mendocino County, including charges for unauthorized vehicle taking with priors, possession for sale of methamphetamine, post-release community supervision violations, and a probation violation related to a domestic violence misdemeanor. The trial court accepted his pleas and imposed an upper-term sentence in the principal case after finding multiple aggravating circumstances and significant criminal history.
Before sentencing, Nielsen submitted a substance abuse specialist’s report and a letter from his stepsister detailing his childhood. The materials described Nielsen’s history of severe physical, emotional, and mental abuse and neglect; an addict father who introduced his teenage children to drugs and used them to commit thefts; and an absentee mother. The substance abuse specialist concluded that Nielsen’s substance use was directly related to his childhood trauma.
Penal Code section 1170, subdivision (b)(6), enacted by AB 124 in 2021, creates a presumption in favor of the lower term when the defendant has experienced psychological, physical, or childhood trauma that contributed to the commission of the offense, unless the trial court finds that the aggravating circumstances outweigh that mitigating circumstance and a lower term sentence would not be in the interests of justice. Nielsen’s counsel, however, did not specifically raise section 1170(b)(6) at sentencing, and the trial court did not address the presumption on the record. On appeal, Nielsen argued that the trial court failed to apply the mandatory presumption.
The Court’s Holding
The First District Court of Appeal, Division Four, in a divided opinion, affirmed the judgment. The majority held that Nielsen forfeited his section 1170(b)(6) claim by failing to raise the presumption at sentencing. Although counsel submitted materials about Nielsen’s childhood trauma, counsel did not invoke the section 1170(b)(6) presumption or ask the trial court to apply it. The trial court’s sentencing record showed that it considered the materials and Nielsen’s background, but it focused its discussion on whether to grant probation rather than on whether the lower term presumption applied.
The majority distinguished cases like People v. Fredrickson, in which the trial court’s sentencing decision had reflected at least implicit consideration of the presumption. Here, by contrast, the issue was whether the trial court was even alerted to the presumption, and counsel’s failure to invoke it was the kind of failure that ordinary forfeiture rules cover. The majority also rejected the ineffective assistance of counsel argument on the ground that the record did not affirmatively show prejudice and counsel may have had tactical reasons not to press the section 1170(b)(6) point in light of the multiple aggravating factors and Nielsen’s extensive criminal history.
On the custody credit claim, the majority held the trial court properly determined Nielsen’s presentence custody credits in the principal case. The dissenting justice would have found that the section 1170(b)(6) claim was preserved under Fredrickson and, in the alternative, would have found ineffective assistance of counsel given the unrebutted evidence of childhood trauma and the absence of any tactical reason for failing to invoke the statute. The dissent emphasized that the probation report did not even identify childhood trauma as a mitigating factor, much less reference the section 1170(b)(6) presumption.
Key Takeaways
- Defendants seeking to invoke the Penal Code section 1170(b)(6) low term presumption must affirmatively raise the issue at sentencing; failure to do so risks forfeiture.
- Submitting materials about childhood trauma is not by itself sufficient; counsel must specifically request application of the presumption.
- Ineffective assistance claims based on counsel’s failure to invoke section 1170(b)(6) require an affirmative record showing of prejudice; on appeal, the court will not assume the trial court would have imposed a different sentence.
- Probation reports often fail to identify childhood trauma as a mitigating factor or to reference the section 1170(b)(6) presumption; defense counsel should be prepared to do so themselves.
- The dissent indicates a developing split on whether and when section 1170(b)(6) claims can be raised on appeal without prior preservation, an issue likely to be revisited by the California Supreme Court.
Why It Matters
This decision highlights the practical importance of affirmatively invoking Penal Code section 1170(b)(6) at sentencing in any case where the defendant has a history of trauma that contributed to the offense. Defense counsel cannot rely on the trial court to identify the presumption sua sponte, particularly when probation reports frequently overlook it. Failure to raise the presumption can lead to forfeiture and a higher sentence than the law permits.
The decision also reflects an emerging split among California Courts of Appeal about how strictly to apply the forfeiture rule in section 1170(b)(6) cases. The dissent’s analysis aligns with appellate decisions that take a more lenient approach when the record contains substantial evidence of trauma but counsel and the court overlooked the statute. Practitioners should expect further development of this area, including possible Supreme Court review, and should preserve the issue carefully in every eligible case.