People v. FlowersPeople v. Flowers
Appellant was convicted by jury of robbery (
The trial court sentenced appellant to 20 years in state prison (the upper term of five years for the robbery conviction, doubled for a strike (
Appellant contends the trial court erred in imposing the upper term pursuant to section 1170 as it existed at the time, there should be a reversal and remand for resentencing because of recent legislative changes, and the trial court erred in imposing fines and fees without determining ability to pay.
Facts
In November 2019, appellant‘s codefendant, Alford, entered a check cashing store and pointed a gun at the manager. He told her to go to the safe. He bound her face, legs, and wrists with duct tape. He warned her not to “look up or go out [of the room]” or “somebody will get mad.” The manager saw Alford take money from the front register, later determined to be $2,122. When Alford left, the manager was able to call the police.
In a photo show-up, the manager recognized appellant as a previous customer. Another witness identified appellant in a photo show-up as one of two people she saw walking toward the check cashing store at the time of the robbery.
Cellphone records showed appellant‘s phone was in the vicinity of the check cashing store at the time of the robbery. There were also several calls and communications between Alford‘s and appellant‘s cellphones before, during, and after the robbery. Appellant‘s phone records showed internet searches
Sentencing
The probation report, which the sentencing court was required to consider (
After striking one of appellant‘s strike priors, the trial court selected the upper term of five years for the robbery conviction, and explained, “I selected the upper term because of your long and significant criminal history, and because of the numerous factors in aggravation.” As indicated, appellant was sentenced to 20 years in state prison. The present prison term is his fifth time he has been sent to prison. Prior to this commitment, appellant was sentenced to prison in (1) 1995, for robbery, (2) 1997, for attempted burglary, (3) 2003, for domestic violence, and (4) 2011, for grand theft.
Former section 1170
Appellant contends the trial court erred in imposing the upper term pursuant to section 1170 as it existed at the time. The People contend that appellant forfeited the issue on appeal because he did not object to the upper term sentence when it was
Even if appellant had objected to the imposition of the upper term under former section 1170, there was no error.3 Former section 1170 provides that when “a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . In determining the appropriate term, the court may consider the record in the case, the probation officer‘s report, other reports . . . and any further evidence introduced at the sentencing hearing. The court shall select the term which, in the court‘s discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected and the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.” (Former
Appellant contends the trial court erred in its dual use of his prior strike convictions “as grounds for the upper term sentence.” (Former
Senate Bill No. 567
Appellant contends his upper term sentence should be vacated and remanded for resentencing in light of the recent amendments to section 1170, pursuant to Senate Bill No. 567.
Effective January 1, 2022, Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3) (Senate Bill 567) amended section 1170 such that the middle term is now the presumptive term of imprisonment. It did not alter the triad of punishments for robbery. Pursuant to the newly amended law, the trial court must “order imposition of a sentence not to exceed the middle term” unless there are “circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true
The People concede that the amendment of section 1170 by Senate Bill 567 applies retroactively to appellant because his case is not final on appeal. (See In re Estrada (1965) 63 Cal.2d 740, 745; People v. Frahs (2020) 9 Cal.5th 618, 627-637.) We need not rule on this contention.
We conclude that remand for resentencing is here unnecessary and would be an idle act. The trial court relied upon “numerous factors in aggravation” identified by the probation report. Three of the five factors in aggravation (i.e., prior convictions that are numerous or increasing in seriousness, prior prison term, and prior performance on probation and parole) are readily established by the certified records. They show numerous felony convictions and prior prison terms.
The certified records also show several probation violations, which reflect his poor performance on probation. (See People v. Towne (2008) 44 Cal.4th 63, 79-82 [determinations that a defendant‘s prior convictions are numerous or of increasing seriousness, prior prison term, parole status, and prior unsatisfactory performance on probation or parole may be determined by the record of prior convictions]; People v. Black (2007) 41 Cal.4th 799, 815, 819-820, overruled on other grounds in Cunningham v. California (2007) 549 U.S. 270 [“determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of
Given that several factors relied upon by the trial court, i.e, appellant‘s criminal history, prior prison terms, and prior poor performance on probation, are supported by the certified records of convictions and that the trial court found no mitigating circumstances, we conclude the trial court‘s original sentencing decisions should be affirmed.
Phrased otherwise, the record “clearly indicates” that the trial court would not impose a more favorable sentence upon theoretical reversal for resentencing. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; People v. Flores (2022) 75 Cal.App.5th 495, 500 [harmless beyond a reasonable doubt standard]; People v. Salazar (June 28, 2022, B309803) ___Cal.App.5th___ [2022 Cal.App. Lexis 560].) We ourselves have applied the “clear indication” rule and reversed to allow for resentencing where the standard had not, in our opinion, been met. (People v. Yanaga (2020) 58 Cal.App.5th 619, 628 [opn. by Yegan, J., Gilbert, P.J., and Perren, J., concurring].) Application of the rule is, of course, addressed in our judgment. The California Constitution requires us to “opine” on whether or not there has been a miscarriage of justice. (
Senate Bill No. 81
Appellant also contends he is entitled to resentencing on his enhancements in light of Senate Bill No. 81‘s amendment to section 1385. We disagree. Effective January 1, 2022, Senate
Fines and Fees
Appellant contends the trial court‘s order imposing a court operations assessment of $30, a court facilities assessment of $40, and a $5,000 restitution fine without determining his ability to pay violated his state and federal right to due process. (People v. Dueñas (2019) 30 Cal.App.5th 1157.) He did not object when these fines and fees were imposed at his sentencing hearing in May 2021, which was over two years after Dueñas was decided. Therefore, this issue is forfeited. (People v. Fransden (2019) 33 Cal.App.5th 1126, 1153-1154; People v. Greeley (2021) 70 Cal.App.5th 609, 624.)
Appellant argues that trial counsel‘s ‘failure” to object amounted to ineffective assistance of counsel. But the record is silent as to counsel‘s reasons, if any, for failing to object. If “‘“[t]he record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” the claim on appeal must be rejected.‘” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) In these circumstances, the claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding. (Id. at p. 267.)
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.