Opinion
A162132
03-21-2022
THE PEOPLE, Plaintiff and Respondent, v. HAROLD MALBROUGH, Defendant and Appellant.
NOT TO BE PUBLISHED
(City & County of San Francisco Super. Ct. No. SCN229017)
TUCHER, P.J.
In 2018, a jury convicted Harold Malbrough of robbery, assault, and hit-and-run. He was sentenced to an aggregate 24-year prison term, which included multiple sentence enhancements. Malbrough's convictions were affirmed on appeal in 2020, but his case was remanded for re-sentencing. (People v. Malbrough (Aug. 12, 2020, A155835) [non.pub. opn.] (Malbrough I).) In February 2021, Malbrough was resentenced to an aggregate term of 23 years in prison.
In the present appeal, Malbrough contends the trial court erred by imposing an upper term sentence for robbery and consecutive sentences for robbery and hit-and-run. We reject these contentions, but will remand this case pursuant to the parties' stipulation that Malbrough is entitled to re- sentencing under recently enacted ameliorative amendments to Penal Code section 1170.
Statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL SUMMARY
The appellate record includes a copy of the decision in Malbrough I, which is the source of our background summary.
Alan K. was working at a store in San Francisco when a man approached the counter, forcibly took Mr. K.'s laptop, and ran. Mr. K. followed the assailant, who got into the passenger seat of a white car. Then, the car and Mr. K. collided under circumstances that were disputed at trial. As the car pulled away, Mr. K. fell to the ground and suffered a traumatic brain injury. The car fled the scene. Subsequently, the car was returned to a rental car agency in a different city without its license plates. Agency records disclosed that Malbrough had rented the car. Video from outside the store where Mr. K. was injured showed that prior to the incident, Malbrough got in and out of the white car near Mr. K.'s store. The police also obtained video of Malbrough driving away in the white car after Mr. K. was injured.
A jury convicted Malbrough of three felony offenses: second degree robbery (§ 211); assault with a deadly weapon (§ 245, subd. (a)(1)); and hit and run (Veh. Code, § 20001, subd. (a)(1)). The jury also found true enhancement allegations that the robbery caused great bodily injury (§ 12022.7, subd. (b)) and involved use of a deadly weapon (§ 12022, subd. (b)(1)), the assault caused great bodily injury (§ 12022.7, subd. (b)), and the hit and run caused permanent, serious injury (Veh. Code, § 20001, subd. (b)(2)). Following a court trial regarding prior conviction enhancements, the court found that Malbrough has a prior strike conviction (§§ 667, subds. (d)-(e) & 1170.12, subds. (b)-(c)), a prior serious felony conviction (§ 667, subd (a)(1)), and served a prior prison term for burglary (§ 667.5, subd. (b)).
At his initial sentencing hearing, Malbrough was sentenced to 24 years in prison. Using robbery as the principal term, the court imposed an upper five-year sentence, which was doubled to 10 years due to the strike prior. The court imposed a consecutive two-year sentence for the hit-and-run, but stayed sentence for the assault pursuant to section 654. For the sentence enhancements, the court imposed a consecutive five-year term for inflicting great bodily injury and a consecutive one-year term for use of a deadly weapon. It imposed another consecutive five-year term for the prior serious felony and an additional one year for the prior prison term.
In August 2020, Malbrough's appeal from the judgment and sentence was decided by another panel of this court. Affirming the judgment of convictions, the Malbrough I court rejected challenges to the sufficiency of the evidence and claims of evidentiary error. However, the court found that the one-year prior prison term enhancement had to be stricken due to an amendment to section 667, subdivision (b) that went into effect while Malbrough's case was on appeal. Because the parties agreed to a remand for a full resentencing, the court did not address other sentencing issues that could be raised on remand.
II. Resentencing
On February 10, 2021, a resentencing hearing was held via "Zoom" due to restrictions associated with the COVID-19 pandemic. The court imposed an aggregate 23-year prison term and ordered that fines and fees were stayed until further order of the court.
Regarding the length of Malbrough's sentence, the court stated that it would not impose a one-year enhancement for Malbrough's prior prison term because section 667, subdivision (b) no longer applies, but it declined to change other sentencing decisions that it previously made. Specifically, the court denied a defense request to strike the five-year enhancement for Malbrough's prior serious felony conviction as not in the interests of justice. The court also rejected Malbrough's contentions that the proper base term for the robbery conviction should be the midterm, and that the consecutive term for the hit-and-run conviction must be stayed under section 654.
Regarding fines and fees, the court corrected a prior error regarding the proper amount of one fee and then stated: "I'm willing to stay or reserve the imposition of all the fines and fees that I can in this case under [People v. Dueñas (2019) 30 Cal.App.5th 1157] unless and until there's a showing that Mr. Malbrough has the ability to pay them."
The resentencing order and amended abstract of judgment do not indicate that fines or fees were stayed. Malbrough requests correction of these documents so they correspond to the court's oral pronouncement. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) He may raise this issue with the trial court on remand.
DISCUSSION
I. The Upper Term Sentence For Robbery
Malbrough contends his upper term sentence for the robbery conviction must be reversed for two independent reasons. First, he argues that the trial court abused its discretion by relying on improper factors to justify imposing an aggravated term. (See People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval) [sentencing decisions under California's determinate sentencing law are subject to review for abuse of discretion].) Second, Malbrough contends that the trial court should decide under newly amended provisions of section 1170 whether Malbrough should be sentenced to a middle or lower term for the robbery conviction. We largely reject Malbrough's first claim but agree that a remand is required.
A. Aggravating Sentencing Factors
The selection among one of three authorized terms of imprisonment entails consideration of "circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision." (Cal. Rules of Court, rule 4.420(b); all rule references are to these rules.) The sentencing court has wide discretion in weighing the relevant factors. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) One valid aggravating factor is sufficient to justify the selection of a term. (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1374 (Ortiz).) However, the court abuses its discretion by basing its sentencing decision on "circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision." (Sandoval, supra, 41 Cal.4th at p. 847.)
Malbrough contends that the trial court abused its discretion here because it "re-applied" improper aggravating factors that it had relied on at the original sentencing hearing. At the initial hearing, held in November 2018, the trial court stated that it had reviewed and considered the trial evidence, jury verdicts, sentencing memos, and probation report. The court also reviewed a multitude of letters and signatures submitted by members of the community expressing support for Mr. K, which showed the court that Malbrough's actions caused harm to many people, not just the victim and his family.
The court stated further that it had considered aggravating and mitigating factors as outlined in the Rules of Court. It found that aggravating factors pertaining to these crimes include that they caused great bodily harm to Mr. K., and they involved a particularly vulnerable victim, planning and a cover-up, and violent conduct that endangered society. Aggravating factors found to apply to Malbrough personally included his escalating criminal record, past poor performance on probation, and that a previous grant of probation was terminated as unsuccessful. The court found no mitigating factors associated with these crimes, but it took account of mitigating factors relating to Malbrough, which included his upbringing in an impoverished and violent environment. The court also took account of general sentencing objectives, which include protecting society, punishment, deterrence, and restitution.
Relying on "all these considerations," the court elected to impose an upper term sentence for Malbrough's robbery conviction. At the resentencing hearing in 2021, the trial court stated that it would impose an upper term for all the reasons it gave at the initial sentencing hearing. Malbrough contends this was error because the trial court listed three aggravating factors that should not have been considered.
First, the court counted Mr. K.'s great bodily injury as an aggravating factor. (See rule 4.421(a)(1).) This was error, Malbrough contends, because the fact that Mr. K. suffered great bodily injury was the basis for imposing a five-year enhancement under section 12022.7, subdivision (b). As the People concede, dual use of the great bodily injury factor was error. (People v. Gutierrez (1992) 10 Cal.App.4th 1729, 1735.) The error was not necessarily prejudicial, however, because the court identified other aggravating factors that Malbrough does not dispute on appeal. For example, the court also found that Malbrough's criminal record establishes a "pattern of escalation" (rule 4.421(b)(2)), and his past performance on probation was unsatisfactory (rule 4.421(b)(5)). Each of these distinct aggravating facts was sufficient to support the court's sentencing choice. (Ortiz, supra, 208 Cal.App.4th at p. 1374.) Malbrough acknowledges the legal sufficiency of other aggravating factors to support the court's sentencing decision, but he argues the case must be remanded for resentencing because it is"' "reasonably probable that a more favorable sentence would have been imposed in the absence of the [dual use] error." '" (People v. Osband (1996) 13 Cal.4th 622, 728.) As we explain below, new legislation requires that we remand for resentencing in any event, so we need not address that contention here.
Second, Malbrough disputes the trial court's finding that Mr. K. was a particularly vulnerable victim within the meaning of rule 4.421(a)(3). According to Malbrough, for this factor to apply, the victim must have been" 'vulnerable "in a special or unusual degree, to an extent greater than in other cases." '" (Quoting People v. Piceno (1987) 195 Cal.App.3d 1353, 1357 (Piceno).) Malbrough argues that there is "no indication" in the record that Mr. K. was "particularly vulnerable to robbers or being hit by a car." In Malbrough's view, if Mr. K. had been particularly vulnerable, he would not have chased his assailant "at a high rate of speed" and had the "courage to jump on the getaway car."
In Piceno, a drunk driver skidded off the road, crashed his car and killed a pedestrian. (Piceno, supra, 195 Cal.App.3d at p. 1355.) After pleading guilty to manslaughter, the defendant was sentenced to an upper term of four years. (Id. at p. 1355.) Reversing the sentence on appeal, the Piceno court found that the trial court erred by using the victim's particular vulnerability as an aggravating sentencing factor. (Id. at p. 1357.) The appellate court reasoned that, although the victim was vulnerable in the sense that he was defenseless, there was no fact distinguishing him from any other victim killed by a drunk driver. By the same token, the court observed, all victims of vehicular homicide are vulnerable in the sense that they "were in the wrong place at the wrong time." (Id. at p. 1358.) Furthermore, the court found no evidence that the defendant took deliberate advantage of the vulnerability of his victim. In this regard, the Piceno court distinguished drunk driving from a violent felony involving circumstances that make the defendant's conduct" 'especially contemptible.'" (Ibid.)
In this case, there is evidence that Mr. K. did not just happen to be in the wrong place at the wrong time, unlike the victim in Piceno. Mr. K. was a store clerk working alone in his place of employment, which made him particularly vulnerable to this type of robbery. That Malbrough was walking around near the store prior to the robbery could also mean that Mr. K. was a targeted victim. Further, Malbrough took deliberate advantage of the fact that he was in a car and his victim was a pedestrian by using his vehicle as a weapon. Under these circumstances, the trial court did not abuse its discretion by concluding Mr. K. was particularly vulnerable.
Finally, Malbrough disputes the trial court's finding that evidence of planning, especially in regard to "the cover-up attempt that came to light," was another aggravating factor. Rule 4.421(a)(8) describes as an aggravating circumstance the fact that the "manner in which the crime was carried out indicates planning, sophistication, or professionalism." Malbrough contends that under the language of this rule, planning constitutes an aggravating factor only when the planning relates to how the crime was actually carried out, which would not include trying to cover it up after it was committed. We are not persuaded by this strained interpretation of the rule. We see no abuse of discretion in the trial court's view that cover-up activity is evidence of planning. In any event, the trial court's reference to the cover-up was only an example, and the record shows other elements of planning, including the fact that Malbrough was seen walking in the area prior to the robbery and that he waited in a rental car for his associate to return with stolen merchandise.
B. Recent Amendments To Section 1170
The parties have submitted supplemental briefs regarding the impact of amendments to section 1170 that went into effect on January 1, 2022. (See Sen. Bill No. 567 (2020-2021 Reg. Sess.); Stats. 2021, ch. 731, § 1.3; Assem. Bill No. 124 (2020-2021 Reg. Sess.); Stats. 2021, ch. 695, § 5.) They agree that these amendments apply to the non-final judgment under review here. (People v. Flores (2022) 73 Cal.App.5th 1032, 1038-1039 (Flores).) Malbrough identifies two specific amendments that are relevant to the trial court's decision to impose an upper term sentence for his robbery conviction.
First, section 1170, subdivision (b)(2) now provides: "The court may impose a sentence exceeding the middle term only when 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 beyond a reasonable doubt at trial by the jury or by the judge in a court trial." The trial court has twice found that aggravating circumstances justify imposing an upper term sentence in this case, but Malbrough contends that some aggravating factors the trial court relied on were not conceded or found true beyond a reasonable doubt at trial.
The second relevant amendment is section 1170, subdivision (b)(6), which makes the lower term the presumptive term for a prison sentence when specific circumstances exist. Under this provision, "unless the court finds that the aggravating circumstances outweigh the mitigating circumstances [such] that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense: [¶] . . . . [¶] (B) The person is a youth, or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense." (§ 1170, subd. (b)(6); see § 1016.7, subd. (b) ["A 'youth' for purposes of this section includes any person under 26 years of age on the date the offense was committed"].) When the crimes at issue in this case were committed, Malbrough was 24, which made him a youth under the statutory definition. Thus Malbrough contends that the trial court must decide whether this new statutory presumption applies to him.
The People agree with Malbrough that because these amendments apply retroactively to cases that are on appeal, the matter should be remanded for the trial court to resentence Malbrough under the new law. (Citing Flores, supra, 73 Cal.App.5th at p. 1039.) Therefore, we will vacate the upper term sentence and remand the matter for the trial court to apply these new provisions in the first instance in order to determine whether Malbrough is entitled to a middle or lower term for the robbery.
II. The Consecutive Sentence for the Hit-and-Run
Malbrough contends the trial court erred by imposing a consecutive sentence for his hit-and-run conviction rather than staying that sentence under section 654. Rulings under section 654 are reviewed for substantial evidence. (People v. Wynn (2010) 184 Cal.App.4th 1210, 1215 (Wynn).)
Section 654 precludes punishing a defendant twice for "[a]n act or omission that is punishable in different ways by different provisions of law." (§ 654, subd. (a).) "The purpose of section 654 is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. Although the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one offense-the one carrying the highest punishment." (People v. Liu (1996) 46 Cal.App.4th 1119, 1135-1136 (Liu).)
Section 654 also precludes multiple punishments for two offenses that arise from an indivisible course of conduct; if two crimes arose from the same act or series of acts constituting an indivisible course of conduct, multiple punishment is prohibited. (Wynn, supra, 184 Cal.App.4th at pp. 1214-1215.) "The divisibility of a course of conduct depends upon the intent and objective of the defendant." (Liu, supra, 46 Cal.4th at p. 1135.) If two offenses are incidental to one objective, the defendant may be punished for just one. But, if the "defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." (Liu, at pp. 1135-1136.)
In this case, the trial court stayed Malbrough's sentence for the assault under section 654, but imposed a consecutive two-year term for the hit-and-run. The court reasoned that although the robbery and assault arose from an indivisible course of conduct, the hit-and-run was "an independent and separate criminal act," and that Malbrough committed the hit-and-run with "the specific separate intent to escape detection and to neglect [his] duty to help Mr. [K.]" In reaching this conclusion, the court observed that, after Malbrough assaulted Mr. K. with the rental car, he drove "all the way to Sacramento, tore the license plate off [his] rental car," and "engaged in other evasive conduct long after the robbery had been completed."
Malbrough argues that the trial court violated section 654 because the crimes of robbery and hit-and-run were both completed by the act of fleeing from the crime scene. Malbrough overlooks that even when criminal "violations shared common acts or were parts of an otherwise indivisible course of conduct," the court may punish each violation separately when the "defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other." (Liu, supra, 46 Cal.4th at pp. 1135-1136.) The inquiry under section 654 is not whether two crimes were part of the same course of conduct but whether that course of conduct is indivisible, because the defendant had only one criminal objective, or divisible because the defendant had more than one criminal objective. (Neal v. State of California (1960) 55 Cal.2d 11, 19-20, disapproved on other ground in People v. Correa (2012) 54 Cal.4th 331, 334.)
Here, evidence of Malbrough's conduct after he committed the robbery and assault, which the trial court summarized at the sentencing hearing, supports the court's finding that Malbrough harbored two criminal objectives. The first objective was to steal, with his confederate and by force, Mr. K's laptop. But after they robbed and assaulted Mr. K. with the rental car, Malbrough's criminal objective in fleeing the scene was not only to complete the robbery, but also to avoid being arrested and held accountable for the robbery and the assault. (See Wynn, supra, 184 Cal.App.4th at p. 1216 [defendant's objective during a burglary was to obtain cigarettes, but his objective during assault of security guard was to avoid being arrested for theft]; compare People v. Corpening (2016) 2 Cal.5th 307, 313-314 [forceful taking of victim's car containing rare coins was the single physical act and sole means by which defendant committed both carjacking and robbery].)
Malbrough cites People v. Rodriguez (2015) 235 Cal.App.4th 1000 (Rodriguez). There, the defendant was sentenced to consecutive terms for bank robbery and evading arrest by reckless driving. (Id. at pp. 1002-1003.) The sentence was affirmed on appeal because substantial evidence supported the trial court's implicit finding that the defendant "had two distinct objectives in committing the robbery and then evading the police." (Id. at p. 1006.) The appellate court distinguished cases in which a defendant commits a crime "as a means" of committing another crime. (Ibid.) The Rodriguez defendant's act of evading arrest was not the method by which he obtained the bank's money, and thus the trial court could reasonably have found the defendant acted with multiple objectives. (Ibid.)
Malbrough contends that his hit-and-run was the means by which he perpetrated the robbery because, under the law, the robbery was not complete until he reached a place of safety by fleeing the crime scene. Rejecting a similar argument, the Rodriguez court explained that the fact that an evading arrest crime (like hit-and-run) "occurred during the commission of a robbery is not determinative of whether section 654 applies." (Rodriguez, supra, 235 Cal.App.4th at p. 1007.) Whether section 654 applies "does not turn on whether 'an act occurred in the commission of a crime . . .' [citation], but rather, on whether a defendant entertained' "multiple criminal objectives." '" (Ibid.) The criminal objective of evading arrest is separate and independent from the objective of committing robbery, and here substantial evidence supports the trial court's finding that Malbrough harbored these separate criminal objectives.
DISPOSITION
The judgment is reversed and the matter is remanded for resentencing under the newly amended version of section 1170. Following resentencing, the trial court is directed to prepare an amended abstract of judgment. The amended abstract shall be forwarded to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: FUJISAKI, J., PETROU, J.