Opinion
B293509
05-01-2020
THE PEOPLE, Plaintiff and Respondent, v. ADAM RANDOLPH POWELL, Defendant and Appellant.
Gordon B. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Michael J. Wise, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. NA106091) APPEAL from a judgment of the Superior Court of Los Angeles County, Laura L. Laesecke, Judge. Affirmed and remanded. Gordon B. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Michael J. Wise, Deputy Attorney General, for Plaintiff and Respondent.
Defendant Adam Randolph Powell appeals from a judgment sentencing him to 525 years to life in prison after a jury convicted him of 15 counts of second degree robbery (Pen. Code, § 211, counts 1-2, 5-10, 13-14, 16-20), and after the trial court found he had suffered two prior strikes under the Three Strikes law (§§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d)). Defendant contends that his conviction on count 14 should be reversed because the prosecution violated his right to confrontation by playing a surveillance video of the robbery without testimony from a percipient witness, his trial counsel was ineffective for failing to object to the admission of the video, and the evidence was insufficient to support a finding that he committed a theft by means of force or fear. He also contends that his overall sentence is cruel and unusual under the Eighth Amendment of the United States Constitution, and that his restitution fine and various assessments, made without a finding of ability to pay, should be stricken. Finally, he contends that the matter must be remanded to afford the trial court an opportunity to exercise its discretion to strike his prior serious felony enhancements under section 667, subdivision (a)(1).
The first amended information omitted counts 3, 4, 12, and 15. Unspecified references to statutes are to the Penal Code.
The People request that we strike the prior prison term enhancements (§ 667.5, subd. (b)), which the trial court imposed but stayed, pursuant to recently enacted Senate Bill No. 136.
We conclude that use of the surveillance video did not infringe on defendant's right to confrontation, and that substantial evidence supports the robbery conviction on count 14. Defendant has forfeited his claims regarding an ability to pay the restitution fine and assessments. He has also forfeited his contention that his sentence is cruel and unusual, and in any event the claim is meritless. We remand the matter with directions for the trial court to strike the section 667.5, subdivision (b) enhancements. On remand, the trial court may exercise its discretion to impose or strike the prior serious felony enhancements pursuant to section 667, subdivision (a)(1). We otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Between December 21, 2016, and March 16, 2017, defendant robbed 15 victims in Long Beach, Lakewood, and Hawaiian Gardens. At trial, numerous victims described the robber as a six foot tall, African American male who wore a black or grey hooded sweatshirt, a surgical mask, and one glove. During each robbery, defendant either brandished a gun, told the victims he had a gun, or lifted his sweatshirt to flash a gun in his waistband.
The Long Beach Police Department arrested defendant on March 22, 2017, when he was walking in front of a U-Haul store. At the time of arrest, defendant was wearing a surgical mask, a black ski mask, and a dark hooded sweatshirt. An officer seized a replica firearm from defendant's waistband, and a glove was found lying on the ground nearby. Officers searched two cars witnesses associated with the robberies—defendant's car and his mother's car. Officers recovered a BB gun, boxes of medical masks, black cotton gloves, a gray hooded sweatshirt, and an unopened X-Box with a serial number that matched one of the items reported stolen.
By first amended information, defendant was charged with 16 counts of second degree robbery (§ 211, counts 1-2, 5-11, 13-14, 16-20). It was also alleged that defendant was convicted of and had served prison terms for two robberies that took place in 2010, which constituted two prior strikes (§§ 667, subd. (d), 1170.12, subd. (b)), and prior prison terms (§ 667.5, subd. (b)).
On May 4, 2018, the jury convicted defendant of all but one count of robbery. Defendant waived his right to a jury trial on his priors and requested to represent himself during the court trial. After granting defendant's request, the court conducted a trial and found both priors to be true. The court also denied defendant's requests for a new trial and to strike both of his priors.
On October 19, 2018, defendant was sentenced to an overall term of 525 years to life, calculated as follows: on each count, the court imposed an indeterminate term of 25 years to life based on the Three Strikes law, plus a determinate 10-year term based on the two prior strikes. The court also stayed imposition of the prior prison term enhancements.
DISCUSSION
1. Defendant's Conviction on Count 14
Defendant contends his conviction of robbery on count 14 must be reversed. He argues that the surveillance video of the robbery, which was played for the jury without testimony from a percipient witness, violated his right to confrontation. He also argues that defense trial counsel was ineffective for failing to object to the video, and that insufficient evidence supports the finding that defendant committed a robbery. The arguments are meritless.
A. Relevant Proceedings
In count 14, defendant was charged with the robbery of a Dutch Mill convenience store clerk on February 17, 2017. The prosecution called Shailesh Patel, the convenience store owner, to testify. Patel testified that he controlled the video surveillance system in the convenience store and recognized a video entitled "Dutch Mill. February 17th, 2017. Count 14."
The video, which has no audio and was compiled from three different surveillance cameras, was played for the jury, and we have viewed it. In the video, defendant is first seen walking in the parking lot toward the store. He is wearing a black hooded sweatshirt and surgical mask over his face, and he has one black glove on his right hand. After entering the store, defendant walks past the store clerk, who is standing behind a counter and cash register. One minute later, defendant returns to the counter and uses cash to pay for a canned beverage. After taking a few steps away, he turns around and walks back toward the counter. Standing diagonally from the clerk at the end of the counter, defendant takes two Slim Jims from the countertop and change out of his pocket. When the clerk takes the change, defendant points to the register and lifts his sweatshirt to show his waistband. Defendant continues to point at the register, and steps next to the clerk's right side. Defendant then pushes the clerk's chest with his left hand and continues to point at the register with his right hand. The clerk raises his hands in the air; then lowers them to open the register. When the register opens, defendant grabs the clerk's arm and pushes him aside. The clerk again raises his hands, and defendant approaches the register and empties it. Defendant then flees.
B. Introduction of the Surveillance Video Did Not Violate Defendant's Right to Confrontation
Defendant asserts that the introduction of the soundless video, without the testimony of a witness to explain the incident depicted, violated his right to confrontation under the Sixth Amendment. He also contends his trial counsel was ineffective for failing to object to the video's admissibility. The contentions ignore fundamental principles of hearsay.
The Sixth Amendment's confrontation clause provides that "'[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.'" (Crawford v. Washington (2004) 541 U.S. 36, 42.) The confrontation clause bars admission of testimonial hearsay statements of a witness who does not appear at trial, unless he was unavailable to testify, and defendant had a prior opportunity for cross-examination. (Id. at pp. 53-54.)
Obviously, the video contains no hearsay. The clerk's movements were not intended as a communication. (People v. Myers (2014) 227 Cal.App.4th 1219, 1223, 1226-1227 [store clerk's raised hands during commission of robbery constituted non-hearsay].) They were operative actions made in response to demands, and were relevant simply because the actions occurred, thereby permitting the inference that the clerk was afraid and submitting to defendant's orders. There was no statement that could be offered for its truth within the meaning of the hearsay rule. (People v. Rogers (2009) 46 Cal.4th 1136, 1162 [a person's "nonverbal, nonassertive, emotional behavior" is not hearsay].)
Even if there were a statement (there was not), it was not testimonial. Whether a statement is testimonial turns on "'whether, in light of all the circumstances, viewed objectively, the "primary purpose" of the conversation was to "creat[e] an out-of-court substitute for trial testimony."' [Citations.]" (People v. Rangel (2016) 62 Cal.4th 1192, 1214-1215; see People v. Morales (2020) 44 Cal.App.5th 353, 360 [court also considers if statement is made with primary purpose of creating evidence for defendant's prosecution].) Whatever else may be said, it is nonsensical to maintain that the clerk's primary purpose in raising his hands was to create evidence for a subsequent prosecution.
In short, use of the video did not violate defendant's right to confrontation. Further, his trial counsel was not ineffective for failing to object to it.
C. Substantial Evidence Supports the Conviction
Defendant asserts that the evidence (i.e. the surveillance video) was insufficient to support a finding that defendant committed a theft by means of force or fear, as required for upholding his conviction of second degree robbery. The argument, to say the least, is farfetched.
"In reviewing a claim for sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence—that is, evidence that is reasonable, credible, and of solid value—supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt." (People v. Jennings (2010) 50 Cal.4th 616, 638 (Jennings); see In re James D. (1981) 116 Cal.App.3d 810, 813 [substantial evidence includes circumstantial evidence and reasonable inferences based on that evidence].) "We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence." (Jennings, supra, at pp. 638-639.)
Substantial evidence supports the jury's finding that defendant committed a theft (the felonious taking of money from the clerk's immediate presence) by means of force or fear. (§ 211.) There was substantial evidence of fear in the depiction of the clerk raising his hands in submission. In the alternative, there was substantial evidence of force in defendant's moving the clerk aside, pushing the clerk's chest, and grabbing his arm—uses of force in excess of that necessary to commit the robbery. (See People v. Garcia (1996) 45 Cal.App.4th 1242, 1244, 1246, disapproved on other grounds in People v. Mosby (2004) 33 Cal.4th 353 [defendant "lightly pushed" store clerk's shoulder, "'like a tap'"; force was beyond the quantum necessary for the defendant to grab the money].) Thus, sufficient evidence supported a finding that defendant took the money from the register by means of fear, and also by means of force. 2. Defendant's Sentence, Fines, and Assessments
Defendant challenges his sentence on three grounds. First, he argues the overall sentence of 525 years to life constitutes cruel and unusual punishment under the Eighth Amendment. Second, he asserts this court should strike the restitution fine and assessments because there was no determination that he had the ability to pay. Third, he argues that he is entitled to a remand based on Senate Bill No. 1393, which now gives trial courts discretion to strike section 667, subdivision (a) enhancements. The People request that we strike defendant's section 667.5 prior prison term enhancements based on recently enacted Senate Bill No. 136.
A. Relevant Proceedings
Representing himself at the sentencing hearing, defendant requested that the court strike one or both of his prior strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. After reviewing defendant's prior strikes—both for robberies in 2010—and noting that defendant was still on parole at the time of his arrest, the court denied the request.
Proceeding to sentencing, the court imposed on all counts an indeterminate term of 25 years to life (§§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d)) plus a determinate term 10 years for defendant's prior serious felony convictions (§ 667, subd. (a)). The court ran counts 7 and 8 consecutively because they were based on robberies of two victims in the same store. It also noted there were circumstances in aggravation and no circumstances in mitigation. The court imposed consecutive sentences on counts 9 and 10 based on the same reasoning. The court also imposed a $8,000 restitution fine, imposed and stayed a $8,000 parole revocation restitution fine, and imposed a $40 court operations assessment and $30 criminal conviction assessment on each count. (§§ 1202.4, 1202.45, 1465.8; Gov. Code, § 70373.)
B. Defendant's Sentence of 525 Years to Life Does Not Constitute Cruel and Unusual Punishment
Defendant argues that his sentence of 525 years to life constitutes "cruel and unusual punishment" under the Eighth Amendment of the United States Constitution and Article I, section 17 of the California Constitution. The thrust of his argument is that a sentence of this duration, being so long it "is impossible for a human being to serve," is unconstitutional. (People v. Deloza (1998) 18 Cal.4th 585, 600-601 (Mosk, J., concurring)].
As he concedes, however, he did not raise this issue in the trial court. California law is clear that by failing to raise the issue below, defendant has forfeited the claim. (People v. Speight (2014) 227 Cal.App.4th 1229, 1247-1248 (Speight), and cases therein cited.)
Defendant contends the issue is not forfeited because an objection would have been futile insofar as "the law . . . required the sentence." We disagree; the trial court had to determine whether to impose concurrent or consecutive sentences on counts 7 through 10. To do so, the court engaged in a fact-bound inquiry into the crimes, and weighed any aggravating and mitigating circumstances that could bear upon the constitutionality of the sentence. (Speight, supra, 227 Cal.App.4th at p. 1247.) --------
Even were it not forfeited, the claim is not persuasive. Lengthy sentences such as defendant's have been repeatedly upheld against constitutional protest. (E.g., People v. Byrd (2001) 89 Cal.App.4th 1373, 1382 (Byrd) [115 years plus 444 years to life]; People v. Wallace (1993) 14 Cal.App.4th 651, 666-667 [283 years eight months]; People v. Sullivan (2007) 151 Cal.App.4th 524, 568 (Sullivan) [210 years to life]; People v. Retanan (2007) 154 Cal.App.4th 1219, 1230 [135 years to life]; People v. Haller (2009) 174 Cal.App.4th 1080, 1087 (Haller) [78 years to life].)
Justice Mosk's concurrence in Deloza, on which defendant relies, is not an accurate statement of California law, and its reasoning has been rejected. (Haller, supra, 174 Cal.App.4th at p. 1089; Byrd, supra, 89 Cal.App.4th at p. 1383 ["it is immaterial that defendant cannot serve his sentence during his lifetime. In practical effect, he is in no different position than a defendant who has received a sentence of life without possibility of parole"].)
The likelihood that defendant cannot serve the entirety of his sentence does not make the punishment inappropriate under the circumstances. "Commission of a series of robberies which included threatened acts of violence with a deadly weapon must be considered acts of a most heinous nature. [Citation.] He committed the robbery offenses one after another unabated until he was captured." (Sullivan, supra, 151 Cal.App.4th at p. 570.) Notwithstanding his commission of 15 robberies over the span of three months, defendant was also a recidivist offender for the very same offenses at the time of his eventual arrest. (See id. at pp. 571-572 [defendant subject to multiple 25-year-to-life sentences not merely on the basis of current offenses alone, but also for recidivist behavior].) Thus, under the circumstances, the imposition of 525 years to life does not constitute cruel and unusual punishment.
C. Fines and Assessments
Defendant contends we should we should strike the trial court's imposition of a restitution fine and various assessments because he is indigent, and the trial court did not determine if he was able to pay pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). The People contend, and we agree, that defendant has forfeited the issue by failing to raise it below.
Defendant did not object in the trial court based on his inability to pay, nor did he establish a record from which this court can determine whether he was in fact able to pay a total of $9,050 in fines and assessments. We agree with our colleagues in Division Eight of this Appellate District and conclude that defendant's failure to object in the trial court resulted in a forfeiture of this issue. (See People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155; see People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 [defendant forfeited Dueñas issue by failing to object to fees or fine in the trial court].)
D. Senate Bill No. 1393
On all 15 counts, the court imposed two consecutive five-year enhancements pursuant to section 667, subdivision (a). Defendant contends he is entitled to a remand based on the enactment of Senate Bill No. 1393, effective January 1, 2019, which deleted former subdivision (b) of section 1385, thereby giving the trial court the discretion (which it previously did not have) to strike the section 667 enhancements. The People contend remand is futile because the trial court's statements concerning defendant's culpability and criminal history clearly indicate that it would not have dismissed, and will not now dismiss, the enhancements. We conclude remand is appropriate in this case.
"We are not required to remand to allow the court to exercise its discretion if 'the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] . . . enhancement' even if it had the discretion. [Citation.]" (People v. Jones (2019) 32 Cal.App.5th 267, 272-273 (Jones).) "In reviewing whether the trial court made such an unequivocal indication, we consider the trial court's statements and sentencing decisions." (People v. Franks (2019) 35 Cal.App.5th 883, 892; see id. at p. 893 [trial court elected to impose upper term and stated it would not have dismissed the enhancement if it had the discretion to do so]; Jones, supra, at pp. 274-275 [trial court denied defendant's motion for new trial, noted defendant had been released a few months prior to arrest, sentenced defendant to upper term, and "made clear its intention to impose the most stringent sentence it could justifiably impose"].)
We cannot conclude that the trial court made a clear indication that it would not exercise its discretion to strike the prior serious felony enhancements. Though it denied defendant's requests for a new trial and to strike his prior strikes, upon that ruling the court lost its discretion to impose any term below 25 years to life on all 15 counts of robbery. (§§ 667, subds. (b)-(j), 1170.12, 1192.7, subd. (c).) The court did not make an affirmative statement that it would impose the most stringent sentence it could justifiably impose, or that it would not have dismissed the enhancement if it had the discretion to do so. Thus, the court's sentencing decisions and its statements do not indicate a clear indication that it would not exercise its discretion to strike all or part of the 150-year determinate term currently imposed.
E. Senate Bill No. 136
While this appeal was pending, Senate Bill No. 136 amended section 667.5, subdivision (b), to restrict the circumstances under which a one-year sentence enhancement may be imposed for a prior prison term. (Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020.) Defendant received one-year prior prison term enhancements for each of the prior prison term allegations. Those enhancements were both stayed. Section 667.5, subdivision (b), now allows for the imposition of a one-year prior prison term enhancement only if the prior prison term was served for a sexually violent offense.
The People contend Senate Bill No. 136 applies retroactively to those like defendant whose sentences were not final at the time that Senate Bill No. 136 became effective. (People v. Chubbuck (2019) 43 Cal.App.5th 1, 13-14.) We agree, and remand the matter so the trial court can strike the one-year prior prison term enhancements.
DISPOSITION
The matter is remanded. On remand, the trial court shall strike the section 667.5, subdivision (b) enhancements, and may exercise its discretion to impose or strike the prior serious felony enhancements pursuant to section 667, subdivision (a)(1). In other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.