Opinion
E073251
07-14-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL BERNARD BULLOCK, Defendant and Appellant.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB18002727) OPINION APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Affirmed as modified. Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Michael Bernard Bullock is serving five years four months in prison after a jury convicted him of failing to register as a sex offender (Pen. Code, § 290) and being a transient who failed to update his registration after moving to a residence (§ 290.011, subd. (b)). Defendant seeks resentencing. He argues: (1) the consecutive sentences violate section 654; and (2) the court abused its discretion when it declined to dismiss his "strike" prior. The People concede the section 654 issue. We order the sentence for the section 290.011, subdivision (b) offense stayed and otherwise affirm.
Section references are to the Penal Code except where otherwise indicated.
FACTS AND PROCEDURE
In 2019, the People prosecuted defendant for failing to update his sex offender registration from homeless to his new address on Lariat Road from March 19 to April 17, 2018. The People sought the same charges for defendant's same failure when he moved to La Paz Drive from April 17 to April 24, 2018. Defendant wore an ankle monitor during this time. After both changes of address, defendant reported his new address to the probation office but did not update his sex offender registration. Defendant was arrested on April 24, 2018, when his probation officer conducted a home visit at the La Paz Drive address. The probation officer testified at trial that she personally reminded defendant in March that he needed to keep his sex offender registration updated each time he moved.
On April 4, 2019, the People filed an amended information charging defendant with two counts of failing to register (§ 290, subd. (b)) and two counts of transient failing to register after moving to a residence (§ 290.011, subd. (b)). The People also alleged that defendant had a prior conviction for forcible oral copulation (§288a, subd. (c)) in 1997 that qualified as a "strike" prior under sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d).
On April 25, 2019, a jury convicted defendant of the two counts concerning April 17 to 24, 2018, and acquitted him of the two counts concerning March 19 to April 17, 2018. The trial court found true the strike prior allegation.
On June 18, 2019, the trial court sentenced defendant to a "second strike" term of five years four months in state prison as follows: four years for failing to register, calculated as the middle term of two years doubled for the strike prior; plus a consecutive term of one year four months for transient failing to register after moving to a residence, calculated as one-third the middle term of two years doubled for the strike prior. The court imposed this term despite the probation department's recommendation that defendant receive the upper term of three years for the principle count, doubled for the strike prior, plus the one year four months for the subordinate count, for a total sentence of seven years and four months.
Defendant filed a notice of appeal on July 22, 2019.
DISCUSSION
Defendant contends the trial court erred by not staying his sentence for transient failing to register after moving to a residence (§ 290.11, subd. (b)) because, under section 654, that offense was part of the same course of conduct as his conviction for failing to register (§ 290, subd. (b)). The People agree, as does this court.
The standard of review for a trial court's determination whether section 654 applies is substantial evidence, that is, this court should uphold the trial court's determination unless it is unsupported by substantial evidence. (People v. Sanchez (2009) 179 Cal.App.4th 1297, 1310; People v. Sandoval (1994) 30 Cal.App.4th 1288, 1299.)
Section 654, subdivision (a), provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." "[T]he purpose of section 654 is to ensure that a defendant's punishment will be commensurate with his culpability." (People v. Correa (2012) 54 Cal.4th 331, 341.)
This prohibition on multiple punishments extends to an indivisible course of conduct. (People v. Leonard (2014) 228 Cal.App.4th 465, 498.) " ' "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." ' " (Id. at pp. 498-499.)
" 'If [a defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished 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.' " (People v. Leonard, supra, 228 Cal.App.4th at p. 499.)
In People v. Britt, our Supreme Court considered whether section 654 should have been applied when a defendant was punished for both (1) failing to notify the law enforcement agency for his last city that he had moved away (former § 290, subd. (f)(1)), and (2) failing to notify the law enforcement agency for his new city that he had arrived (former § 290, subd. (a)(1)(A)). (People v. Britt (2004) 32 Cal.4th 944, 949 (Britt).)
Our high court explained the purpose of the registration law (§ 290) is to assure that people convicted of certain sexual offenses are " 'readily available for police surveillance at all times.' " (Britt, supra, 32 Cal.4th at p. 952.) The court wrote, "Defendant's objective in violating this section was the opposite of the government's—to avoid police surveillance. To fulfill this objective, he committed two crimes of omission, but each crime furthered the same objective. The failure to notify the former jurisdiction (§ 290, subd. (f)(1)) and the failure to register in the new jurisdiction (§ 290, subd. (a)(1)(A)) were means of achieving the same objective—to prevent any law enforcement authority from learning of his current residence." (Ibid.)
The Supreme Court explained that the lower court was incorrect in determining the defendant had two objectives: (1) to mislead law enforcement and residents of his former community into believing he still resided there; and (2) to conceal from law enforcement and residents of his new community the fact that he was now residing there. (Britt, supra, 32 Cal.4th at p. 953.) The Supreme Court reasoned that separating the defendant's objective by county "parses the objectives too finely." (Ibid.)
The high court held, "a person subject to section 290's reporting requirements who changes residence a single time within California without reporting to any law enforcement agency, and who thus violates both subdivisions (a) and (f) of section 290, may be punished for one of those crimes, but not both." (Britt, supra, 32 Cal.4th at pp. 953-954.)
In the instant case, defendant's failure to register at La Paz Drive and his failure to update his transient registration to La Paz Drive both accomplished his single objective of avoiding surveillance by one act. Although the trial court at sentencing commented, "the crimes were committed at separate times and different places rather than being committed so closely in time," there is not substantial evidence in the record to support multiple acts or objectives. Therefore, under section 654 and Britt, defendant cannot be separately punished for both crimes because they involved a single act and objective.
Where one sentence is precluded under section 654, that section requires the sentence for the conviction with the longest potential term of imprisonment "to be imposed, and the other imposed and then stayed." (People v. Deloza (1998) 18 Cal.4th 585, 594.) For this reason, this court will modify the judgment to stay the sentence for section 290.11, subdivision (b).
2. Failure to Dismiss Strike Prior
Defendant first argues that his trial counsel asked the trial court to dismiss his strike prior under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The People argue defendant forfeited his Romero claim on appeal because he and his counsel did not in fact make a Romero motion in the trial court. We are inclined to agree with the People on this point, but as explained post will consider this claim out of an abundance of caution.
Failure to make a Romero motion in the trial court forfeits the issue on appeal. (People v. Carmony (2004) 33 Cal.4th 367, 375-376 ["[A]ny failure on the part of a defendant to invite the court to dismiss under section 1385 following Romero waives or forfeits his or her right to raise the issue on appeal."], citing People v. Scott (1994) 9 Cal.4th 331, 356 ["[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal."].)
Counsel did not file a written Romero motion, nor did counsel orally ask the court to dismiss the strike in the interest of justice under section 1385, review the factors to be considered, or articulate the reasons why the court should dismiss the strike. Rather, the entirety of counsel's argument at sentencing is as follows. "It's hard for me not to be a little bit—well, let me just say this, that I don't think that we wasted more time on a case in court than with this one. I think that this has been a monumental waste of time. We have an alleged crime where there was less impact on society than if somebody stole a candy bar out of a store. [¶] Everyone knew where my client was 100 percent of the time. He was checking in with probation. There was, what, two or three weeks that he was not registered. The [district attorney] thought that he had committed four crimes and the jury corrected that to two crimes. I'm suggesting that means two years, but I don't think that this is worth a month in custody." (Italics added.)
When the court invited defendant to speak, he emphasized that he had made an innocent mistake in not registering, that the People had charged him with these crimes a year later only after failing to "get me on the chop shop case," that he was not "a monster" because he committed the registrable offense/strike prior in 1997 when he was 14 years old, and "that's not even my lifestyle" anymore.
To the extent that defendant's own statements, combined with counsel's request that he receive only two years, could by some stretch be considered a motion to dismiss the strike prior, we evaluate defendant's appellate Romero claim on its merits.
In doing so, we review the trial court's implied ruling on defendant's implied Romero motion under the deferential abuse of discretion standard. (People v. Williams (1998) 17 Cal.4th 148, 162.) This means that on appeal the trial court is " ' "presumed to have acted to achieve legitimate sentencing objectives" ' " and the decision to impose a particular sentence will not be set aside unless an affirmative showing is made that the sentence "is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony, supra, 33 Cal.4th at pp. 376-377.)
In exercising its discretion whether to dismiss a prior strike allegation, a trial court considers various factors, including "the nature and circumstances of the defendant's present felonies and prior serious and/or violent felony convictions, . . . the particulars of his background, character, and prospects," and whether the defendant may properly be deemed outside the spirit of the "Three Strikes" law. (People v. Williams, supra, 17 Cal.4th at p. 161.) The record shows that in this case, while the trial court did not specifically go over the Romero factors as such in the absence of a clear Romero motion, the court stated in crafting the sentence that it considered that "the underlying case is extremely serious," defendant had two other prior felonies, his prior performance on probation was unsatisfactory, and he was on probation when he committed the current crimes. The court found no mitigating factors. Regarding the current crimes, the court commented, "I honestly don't believe that [defendant] gets it in terms of what his [registration] responsibilities are and, frankly, after 23 years he should." Further, the court referred to the probation report, which explained that defendant has been required to register pursuant to section 290 since 1997, and so he understands the requirements, in addition to his probation officer explaining the requirements to him again in detail during his check-ins. The record indicates that, after defendant's original registrable conviction/strike prior in 1997, he committed additional felonies in 2000 and 2015, as the court mentioned, and violated parole in 2000, 2002, and 2003, in addition to the probation violations the court explicitly considered. Further, defendant had four misdemeanor convictions for theft crimes, battery, and failing to register as an ex-felon.
Defendant was sentenced to three years with the California Youth Authority for misdemeanor battery and oral copulation with force or fear (§ 288a, subd. (c)).
Possessing marijuana for sale (Health & Saf. Code, § 11359) in 2000 and forgery (§ 484g, subd. (a)) in 2015.
Defendant violated probation in 2000, 2015, and 2017. --------
Defendant argues first that the nature of his current crimes is a factor in favor of dismissing his strike, in that they are not serious felonies, and the authorities knew of his location at all times because he was wearing an ankle monitor. Second, defendant committed the registrable offense, oral copulation with force or fear, when he was age 14, he was tried as an adult at age 15 to make the offense a strike (see § 667, subd. (d)(3)(A)), and under current law, Senate Bill No. 1391, he could not now be tried as an adult because he was under age 16 when he committed the offense. In other words, had the current law been in effect when defendant committed the forcible oral copulation offense, he would not be required to register at all and would not have a strike prior. Third, defendant had no serious or violent convictions in the 23 years since he committed the prior strike, which shows that he presents little or no present danger to society. Finally, defense counsel argued at sentencing that the current offense is simply not serious enough to warrant a second strike sentence, and minus the strike he would still be serving two or three years in prison for an offense not "worth a month in custody."
We recognize that defendant's current crimes may not be the most serious or have the most impact on public safety. However, defendant has not met his burden to show that the trial court abused its discretion when it failed to dismiss the strike prior. This is because the registrable crime/strike prior was particularly serious, defendant committed two subsequent felonies and four misdemeanors in the ensuing years, defendant failed on probation and parole multiple times, and was no doubt well aware of the sex offender registration requirements, both because of his history of registering and his probation officer's efforts to explain and remind him of the requirements. Based on these facts, we cannot conclude that the trial court abused its discretion when it did not determine that defendant may properly be deemed to be outside the spirit of the Three Strikes law.
DISPOSITION
Defendant's one year four month prison sentence for violating section 290.011, subdivision (b), is stayed pursuant to section 654. The trial court is directed to issue an amended abstract of judgment and forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J.
We concur:
CODRINGTON
J.
FIELDS
J.