Opinion
E051438 Super.Ct.No. RIF144217
08-09-2011
THE PEOPLE, Plaintiff and Respondent, v. LARRY DONNELL SMITH, JR., Defendant and Appellant.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed in part; affirmed in part as modified.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Larry Donnell Smith, Jr., appeals following a jury trial. He argues the trial court abused its discretion by imposing consecutive sentences, erroneously imposed a booking fee based on insufficient evidence, and miscalculated his presentence custody credits.
FACTUAL AND PROCEDURAL BACKGROUND
On June 2, 2010, a jury found defendant guilty of the following offenses: robbery (Pen. Code, § 211 ) of Aracely Delgado on May 16, 2008 (count 1); robbery (§ 211) of Rocio Serrano on May 16, 2008 (count 2); robbery (§ 211) of Cord Anderson on May 21, 2008 (count 3); attempted robbery (§§ 664/211) of Randy Balgobin on May 21, 2008 (count 4); robbery (§ 211) of Jordan Martinez on May 22, 2008 (count 7); attempted robbery (§§ 664/211) of Suzy Reed (count 10); and robbery (§ 211) of Arash Sadeghian on June 11, 2008 (count 12). The jury was unable to reach a verdict on the remaining charges in counts 5, 6, 8, 9 and 11, as well as allegations that defendant personally used a deadly and dangerous weapon, a BB gun, to commit counts 11 and 12. As a result, the court declared a mistrial as to these counts and allegations and then dismissed them pursuant to section 1385 based on a motion by the prosecution.
All further statutory references are to the Penal Code unless otherwise indicated.
May 16, 2008 (Counts 1 & 2).
The jury's guilty verdicts relate to five separate incidents on four different dates. In the first incident on May 16, 2008, defendant robbed two cashiers at a convenience store. Aracely Delgado testified she noticed defendant standing in the line at the store about 9:00 p.m. At that time, Delgado was taking care of customers and the other cashier, Rocio Serrano, was dropping money into the safe. She heard defendant tell Serrano to give him the money, but Serrano was nervous and could not open the drawer. Defendant was wearing a "black hoodie" with big pockets and appeared to be holding a gun in one of his pockets. Defendant was able to take money from both registers. Delgado identified defendant as the robber. A videotape of the robbery was played for the jury.
May 21, 2008 (Counts 3 & 4).
In the second incident, defendant went into a fast food restaurant about 9:00 p.m. and robbed the night manager, Cord Anderson, and another employee, Randy Balgobin. Anderson testified she and Balgobin were standing at the cash register when defendant came inside wearing a black hoodie. Defendant approached the counter, pushed Anderson, and told her to get down on the ground. After defendant left the restaurant, Anderson determined the cash registers were empty. Anderson identified defendant as the robber. A videotape of the robbery was played for the jury.
May 22, 2008 (Count 7).
In the third incident, defendant robbed a different fast food restaurant about 7:15 p.m. The manager of the restaurant, Karandhir Singh, testified he was cooking in the back of the restaurant. Another employee, Jordan Martinez, was in the front at a cash register. A third employee, Thelma Medina, was also in the back of the restaurant with Singh. Singh noticed defendant come in the main door and heard him yelling at Martinez to hand over the money. Singh told Martinez to give defendant the money. Singh and the other employee sat on the floor in the back and did not interact with defendant. Singh later identified defendant as the robber in a photographic lineup.
May 22, 2008 (Count 10).
In the fourth incident on May 22, 2008, defendant went back to the first fast food restaurant he had robbed the previous day, and attempted to rob the night manager, Suzy Reed. Reed testified she noticed defendant enter the restaurant and head toward the register where she was helping a customer. Because she watched the videotape of the robbery the night before, she believed this was the same person. He had the same general appearance as the robber, was wearing a black hoodie sweatshirt, and appeared agitated. One hand was concealed in the sweatshirt pocket, so she thought he might be armed. He pushed the customer out of the way, walked up very close to her, and forcefully demanded money. She was angry because she believed this was the same person who committed the robbery the night before, so she said, "No." She then took the key out of the register and walked to the kitchen. Defendant began yelling at her to open the register, but she said "No" again, and defendant exited the restaurant. Reed identified defendant as the robber. A videotape of the incident was played for the jury.
June 11, 2008 (Count 12).
In the fifth incident on June 11, 2008, defendant robbed a bank customer. The customer, Arash Sadeghian, testified he parked his car in the parking lot of the bank about 10:00 p.m. and walked to the ATM machine to deposit money. He returned to his car and sat for a few minutes to make some calculations. While sitting in the car, he suddenly heard something knocking on the window. When he looked up, defendant was standing outside his window pointing a gun at him. He heard defendant asking for money. Afraid he would be shot, Sadeghian got out of the car and walked toward the ATM machine with defendant following behind him. When they got to the ATM machine, defendant had the gun partially hidden in his pants. Defendant said, "Give me a thousand dollars." When one thousand was not available from the ATM machine, defendant said, "Give me 500." When $500 did not work, Sadeghian tried $300 and gave defendant the money. Defendant put his arm around Sadeghian's shoulder and walked him back to his vehicle. He then told Sadeghian to get down on the ground. Sadeghian got down on the ground and watched as defendant drove away. Sadeghian identified defendant as the robber. A security guard who was a witness to the robbery was able to record the number on defendant's license plate.
After defendant was arrested, police searched his car and found a BB gun underneath the front passenger seat. Police also found the packaging for the BB gun in the trunk of the car.
Defendant testified and admitted he committed the robbery at the convenience store on May 16, 2008; the robbery and attempted robberies of the fast food restaurant on May 21 and 22, 2008; the robbery at the second fast food restaurant on May 22, 2008; and the robbery of the bank customer on June 11, 2008. He also testified he stole the BB gun from a store and planned to use it to rob a drug dealer who sold him drugs so he could get his money back.
As a result of the jury's verdicts, the court sentenced defendant to a total of 10 years four months in state prison. To reach the total term, the court imposed the upper term of five years on count 1. The following consecutive terms were imposed on the remaining counts: one year each on counts 2, 3, 7, and 12; and eight months each on counts 4 and 10.
DISCUSSION
Consecutive Sentences
As noted above, the court imposed consecutive sentences on each of the counts involving the robberies of Delgado and Serrano at the convenience store (counts 1 & 2) and the robbery and attempted robbery of Anderson and Balgobin at the first fast food restaurant (counts 3 & 4). Citing rule 4.425 of the California Rules of Court, defendant contends this was an abuse of discretion, because each incident occurred at the same time, involved the same facts, and did not involve separate acts of violence. Defendant also contends consecutive sentences were not appropriate because he did not injure anyone, did not verbally threaten violence, and did not have a weapon. According to defendant, the court abused its discretion because it relied on multiple victims to the exclusion of other factors. The transcript of defendant's sentencing hearing indicates the trial court imposed consecutive terms on these counts because they involved different crimes against separate victims and each incident occurred at different times.
A trial court has broad discretion to impose concurrent or consecutive sentences as long as there is no express statutory provision to the contrary. (People v. Shaw (2004) 122 Cal.App.4th 453, 458.) We review a trial court's decision to impose consecutive sentences for an abuse of discretion. (People v. Bradford (1976) 17 Cal.3d 8, 20.) Under rule 4.425 of the California Rules of Court, facts favoring consecutive rather than concurrent sentences include whether: "(1) The crimes and their objectives were predominantly independent of each other; [¶] (2) The crimes involved separate acts of violence or threats of violence; or [¶] (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior." With exceptions that are not relevant here, other circumstances in aggravation or mitigation may be used to impose consecutive sentences. (Cal. Rules of Court, rule 4.425.)
Most importantly, however, courts have discretion to impose consecutive sentences based solely on the occurrence of separate acts of violence against multiple victims, even if the acts were part of the same incident but charged as separate counts. (People v. Calhoun (2007) 40 Cal.4th 398, 408.) Here, each incident involved two separate victims. The existence of mitigating factors, which might have supported concurrent rather than consecutive sentences, is not enough to establish an abuse of discretion. As a result, we cannot conclude the trial court abused its discretion in imposing consecutive sentences on counts 1 through 4.
Booking Fee
Citing subdivision (a) of Government Code section 29550.2, defendant contends the trial court erroneously imposed a booking fee of $409.43 based on insufficient evidence that he had the ability to pay or that the imposed fee did not exceed actual administrative costs. The minutes of defendant's sentencing hearing and the abstract of judgment both state a booking fee in the amount of $409.43 was imposed pursuant to Government Code section 29550.
Government Code sections 29550, 29550.1, and 29550.2 control the imposition of fees for booking and administratively processing arrested persons into jail. (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1399, fn. 6.) Booking fees imposed must be supported by substantial evidence. (Id. at p. 1400.)
The People contend defendant forfeited any challenge to the booking fee because he did not raise the issue in the trial court. For reasons of fairness, and because the amount of the booking fee is a factually specific inquiry, a defendant should not be able to challenge the sufficiency of the record to support the fee for the first time on appeal. (People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469.) On the other hand, we may strike an unauthorized fee even if the defendant did not raise the matter in the trial court. (People v. Crittle (2007) 154 Cal.App.4th 368, 371.)
Subdivision (a) of Government Code section 29550.2 does indicate that a booking fee "shall not exceed the actual administrative costs" and does indicate the arrestee must have "the ability to pay." However, as the People point out, subdivision (a) of Government Code section 29550.2 does not apply under the facts of this case. Subdivision (a) of Government Code section 29550.2 applies when a person is booked into county jail "pursuant to any arrest by any governmental entity not specified in Section 29550 or 29550.1." (Italics added.) A "city" is one of the agencies specified in Government Code sections 29550 and 29550.1. The record indicates defendant was arrested by the City of Riverside Police Department and was booked into the Riverside County Jail. Defendant's reliance on Government Code section 29550.2 is therefore misplaced.
Subdivision (a)(1) of Government Code section 29550 does state that "a county may impose a fee upon a city . . . for reimbursement of county expenses incurred with respect to the booking or other processing of persons arrested by an employee of that city . . . where the arrested persons are brought to the county jail for booking or detention. The fee imposed by a county pursuant to this section shall not exceed the actual administrative costs, including applicable overhead costs . . . . A county may submit an invoice to a city . . . for these expenses . . . . Counties shall fully disclose the costs allocated as . . . overhead." (Italics added.) However, "[a]ny county that imposes a fee pursuant to this section shall negotiate a reduced fee with any city . . . for any services that are performed by the arresting agency in the processing of arrestees that do not have to be duplicated by the county." (Gov. Code § 29550, subd. (a)(3).) "This subdivision shall not apply to counties that are under a contractual agreement with a city . . . ." (Gov. Code § 29550, subd. (a)(4).) Government Code section 29550 does not require a finding that the defendant must have the ability to pay.
In addition, Government Code section 29550.1 states in part as follows: "Any city . . . whose officer or agent arrests a person is entitled to recover any criminal justice administration fee imposed by a county from the arrested person if the person is convicted of any criminal offense related to the arrest. A judgment of conviction shall contain an order for payment of the amount of the criminal justice administration fee . . . ." This section does not require a determination as to the defendant's ability to pay.
Based on subdivision (a)(1) of Government Code sections 29550 and 29550.1, the city is only entitled to recover and the court is only authorized to impose a booking fee if it does not exceed applicable overhead costs. We were unable to locate anything in the record showing the applicable overhead costs. We therefore agree with defendant that the order requiring him to pay a booking fee in the amount of $409.43 is unauthorized and must be reversed.
Presentence Custody Credit
Presentence custody credit may be earned for "all days of custody from the date of arrest to the date on which the serving of the sentence commences." (§ 4019, subd. (a)(1).) Defendant contends, and the People agree, that defendant is entitled to two additional presentence custody days.
We may correct an error in calculating presentence credits that result in an unauthorized sentence, as long as the error is not the only issue raised on appeal. (In re Antwon R. (2001) 87 Cal.App.4th 348, 351, fn. 1; People v. Duran (1998) 67 Cal.App.4th 267, 270.) Testimony at trial established that defendant was arrested on June 12, 2008. The section of the probation report describing the circumstances of the offense also indicates defendant was arrested on June 12, 2008. However, the date of arrest is shown as June 13, 2008, in the section of the probation report discussing the number of credits earned. If the correct date of arrest is used, defendant is entitled to one additional day of credit.
In addition, the probation report was prepared for sentencing to take place on June 24, 2010. Defendant was not sentenced until July 23, 2010. When the court calculated the additional presentence custody time, it did not include the date of sentencing. As a result, defendant is entitled to another additional day of credit.
DISPOSITION
The clerk of the superior court is directed to correct the minute order and the abstract of judgment to reflect a total of 772 actual presentence days in custody, plus 115 days of presentence custody credits at the rate of 15 percent under section 2933.1, for a total of 887 days of presentence custody credit. In addition, the order requiring defendant to pay booking fees in the amount of $409.43 is reversed as unauthorized. The trial court is directed to determine, in accordance with applicable statutes, whether the booking fee should be imposed in this or any amount. If any order directing fees or costs is entered on remand, the court shall state any applicable statutory and factual basis for the order in the record. The superior court clerk is further directed to make any necessary corrections to the minutes. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
MILLER
J.