Opinion
E071471
03-10-2020
THE PEOPLE, Plaintiff and Respondent, v. KEVIN LEMONT BUTLER, Jr., et al. Defendants and Appellants.
Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant Kevin Lemont Butler, Jr. Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant Johnny Shaw. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. FVI17001555, FVI17001556) OPINION APPEAL from the Superior Court of San Bernardino County. Debra Harris, Judge. Affirmed in part, conditionally reversed in part, remanded with directions. Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant Kevin Lemont Butler, Jr. Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant Johnny Shaw. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendants and appellants Kevin Lemont Butler and Johnny Shaw of attempting to rob a gas station convenience store. After denying defendants' Romero motions and finding alleged recidivism-based enhancements to be true, the trial court sentenced Shaw to 45 years to life in prison, and sentenced Butler to a term of nine years eight months.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
In this appeal, both defendants argue that there was no substantial evidence that they intended to rob the store cashier, that the trial court abused its discretion by denying their Romero motions, and that the matter should be remanded for resentencing pursuant to the newly enacted Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393). Butler also contends that the trial court erred by failing to instruct the jury on the lesser included offense of attempted theft. Shaw, relying on the recently decided case of People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), asks that we reverse certain fines imposed against him and remand for a hearing on his ability to pay. Finally, both defendants request that certain sentence enhancements be stricken pursuant to the recently enacted Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136)
We find that there was substantial evidence that defendants intended to rob the store cashier, and that the trial court did not err by denying defendants' Romero motions or failing to instruct the jury on attempted theft. The People concede, and we agree, that defendants' sentences must be vacated and the matter remanded for the trial court to exercise its new sentencing discretion under Senate Bill 1393. In connection with resentencing, Shaw may, if he wishes, request a hearing and present evidence demonstrating his inability to pay the challenged fines. The People also concede, and we agree, that Shaw and Butler are both entitled to relief pursuant to Senate Bill 136.
I. BACKGROUND
In the wee hours of the morning on June 10, 2017, Butler, Shaw, and a third man entered a gas station convenience store. After some initial innocuous interchanges with the cashier, including Shaw paying for gas, Shaw and the third man went to the back of the store to look at the merchandise, while Butler remained by the register with the cashier. At that point, Butler began to stare intently at the cashier, who at trial described Butler's look as "mad-doggish" and "an anger stare." Butler then quietly told the cashier "Put the money in the bag," repeating that phrase twice before telling the cashier to "hurry up." The cashier complied, emptying the money from the register into a bag which he placed on the counter between him and Butler.
We here summarize events captured on audio and video surveillance recording of the store, and described by the cashier in trial testimony. Neither defendant testified or presented any other affirmative evidence at trial.
As the cashier did so, the third man approached and asked what was going on. The cashier said that Butler had told him to put the money in the bag and Butler confirmed, "He's putting the money in the bag." The third man reprimanded Butler, telling him, with profane emphasis, not to do "that," and asking him "What [are] you doing?" Butler told the cashier to put the money back, which he did. Butler and the third man began laughing and the third man exclaimed a bit louder, "Hell nah, don't put no money in no bag."
Apparently overhearing the third man, Shaw then called out from the back of the store "Oh...wait, put it in the bag. Yeah. Put it in the bag." The cashier perceived Shaw to have a "strict" or "angry" look on his face as he then approached the register quickly, loudly repeating "Put it in the bag" several more times. Each time, the third man directed the cashier not to comply. Shaw then stated, "Alright then. Don't play . . ." and returned to looking at merchandise in the store. As he did so, he commented, laughing, "Talking about the gas . . . putting it in the bag." Butler then told the cashier "I was just [messing] with you. Wipe the sweat off your head." Shortly thereafter, after some more laughing banter, the three men left the store. They remained outside the store at the gas pump for another few minutes, pumping the gas that Shaw had paid for, before leaving.
Butler and Shaw were both charged with one count of attempted robbery (Pen. Code, §§ 664, 211). The information further alleged that Shaw had suffered four prior serious felony convictions (§ 667, subd. (a)(1)), four strike priors (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and three prison priors (§ 667.5, subd. (b)), while Butler had one prior serious felony conviction (§ 667, subd. (a)(1), one strike prior (§§ 1170.12, subds. (a)-(d)), 667, subds. (b)-(i)), and three prison priors (§ 667.5, subd. (b)). The third man was not charged.
Further undesignated statutory references are to the Penal Code unless otherwise noted.
Butler and Shaw were tried together, and the jury found both guilty of attempted robbery. In bifurcated proceedings, the trial court found the enhancement allegations true.
The trial court denied both defendants' Romero motions. It sentenced Shaw to a total of 45 years to life, consisting of an indeterminate term of 25 years to life for the attempted robbery conviction, plus four consecutive 5-year terms for his serious felony priors. It sentenced Butler to a total of nine years eight months in prison, consisting of two years eight months for the attempted robbery count (the low term of 18 months, doubled because of his strike prior), plus five years for the serious felony prior, and two one-year terms for prison priors. The court also imposed various fines and fees including, as relevant here, a restitution fine of $10,000 and a stayed $10,000 parole revocation fine against Shaw.
II. DISCUSSION
A. Substantial Evidence of Attempted Robbery
Butler and Shaw contend that there was insufficient evidence that they committed the charged offense of attempted robbery. They argue that the evidence compels the conclusion that they were only joking, and therefore lacked the specific intent necessary to support an attempted robbery conviction. We find ample evidence supported the convictions.
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Bolin (1998) 18 Cal.4th 297, 331.) "Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (Ibid.; see also People v. Thomas (1992) 2 Cal.4th 489, 514 ["If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment"].) "'We do not reweigh evidence or reevaluate a witness's credibility.'" (People v. Alexander (2010) 49 Cal.4th 846, 917.)
"Attempted robbery requires 'a specific intent to commit robbery and ... a direct but ineffectual act, beyond mere preparation, toward the commission of the crime.'" (People v. Mora & Rangel (2018) 5 Cal.5th 442, 488-489.) "Robbery is defined as 'the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.'" (Id. at p. 489.) "Robbery requires the 'specific intent to permanently deprive' the victim of his or her property." (Ibid.)
Sufficient evidence supports the jury's determination that Butler and Shaw both had the specific intent to rob the cashier and that each took a direct, ineffectual act toward committing the robbery. Video and audio surveillance footage of the events, in addition to the cashier's trial testimony, constitute evidence that Butler and Shaw each, at different times, demanded that the cashier put the money from the register in a bag, while using body language and facial expressions reasonably interpreted as threatening. It is reasonably inferred from these facts and the surrounding circumstances that Butler and Shaw had the intent to take the money and thereby permanently deprive the store of property. (See People v. Abilez (2007) 41 Cal.4th 472, 508 ["Intent to steal is often proved by circumstantial evidence"].) Butler, at the cash register, engaged the cashier with sustained focus, causing him to actually remove money from the cash register, place it in a bag, and place the bag on the counter. It may have only been the intervention of the third man that thwarted the robbery. Shaw then approached the register rapidly, telling the cashier to "Put it in the bag," before the third man again apparently intervened to stop the robbery. Although the evidence is arguably reconcilable with the different conclusion urged by Butler and Shaw—that they were only joking all along, and never had any actual intent to commit a robbery—the jury was not beyond the bounds of reason when it disbelieved them. On this record, we may not disturb the jury's verdict. (See People v. Thomas, supra, 2 Cal.4th at p. 514.) B. Instruction on Attempted Theft
Butler argues that the trial court erred by failing to instruct the jury on the lesser included offense of attempted theft. He notes that causation is an element of robbery, and contends that it was at least arguable as to whether fear inflicted by his actions caused the cashier to take money from the register, or whether the cashier was not in fact afraid and was simply following store policy to comply with similar demands. We find no error.
Attempted theft is a lesser included offense of attempted robbery. (People v. Reeves (2001) 91 Cal.App.4th 14, 53.) An instruction on a lesser included offense must be given if there is substantial evidence from which a jury could reasonably conclude that the defendant committed the lesser, uncharged offense but not the greater, charged offense. (People v. Breverman (1998) 19 Cal.4th 142, 154.) "'[E]very lesser included offense, or theory thereof, which is supported by the evidence must be presented to the jury."' (People v. Thomas (2012) 53 Cal.4th 771, 813.)
One can imagine a set of facts where an attempted theft instruction would be required as a lesser included offense of attempted robbery; for example, where there is conflicting evidence as to whether or not the defendant only accidentally inflicted force or fear on the victim. But the facts here are different. On our record, the issue is not whether, as Butler argues, there is some basis in the record to conclude the cashier put the money from the register into the bag for a reason other than being put in fear by Butler. Rather, the issue is whether there is any evidence from which the jury could have reasonably concluded that Butler intended only to commit a theft, but not to commit a robbery. (People v. Breverman, supra, 19 Cal.4th at p. 154.) There is no such evidence. On this record, either Butler intended to intimidate the cashier into giving him the money from the register, or he was just joking about having such an intention. The trial court was correct not to instruct the jury on attempted theft. C. Romero Motions
Butler and Shaw both contend that the trial court abused its discretion by denying their respective Romero motions. We find no abuse of discretion in either ruling.
A trial court may dismiss a prior strike conviction under section 1385 "in furtherance of justice." (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529-530.) In considering whether to do so, the trial court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) There is a "'strong presumption that any sentence that conforms to [the sentencing norms established by the three strikes law] is both rational and proper.'" (In re Large (2007) 41 Cal.4th 538, 550.)
We review the denial of a Romero motion for abuse of discretion. (Williams, supra, 177 Cal.4th at p. 162.) '"Under that standard, an appellant who seeks reversal must demonstrate that the trial court's decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of [the] prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance."' (People v. Romero (2002) 99 Cal.App.4th 1418, 1434.) "Because the circumstances must be 'extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack' [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary." (People v. Carmony (2004) 33 Cal.4th 367, 378.) Even serious but nonviolent recidivists presumptively fall under the letter and spirit of the three strikes law. (See, e.g., People v. Romero, supra, at p. 1434 [upholding sentence of 25 years to life for felony "nonviolent petty shoplifting offense" and affirming denial of Romero motion because of "seriousness" of defendant's criminal background, which included a serious felony, a violent felony, and four misdemeanors].)
Here, the record demonstrates the court considered the relevant facts and arrived at a reasonable decision to deny Butler's and Shaw's Romero motions. Both Butler and Shaw had extensive criminal records, including convictions for violent offenses: Shaw's adult felony convictions included two robbery convictions (§ 211), as well as evading a peace officer (§ 2800.2), assaulting a peace officer or firefighter with a deadly weapon (§ 245, subd. (c)), and making terrorist threats (§ 422); Butler's strike conviction was for making a criminal threat (§ 422), and his other convictions included domestic violence (§ 273.5, subd. (a)) and assault with a deadly weapon (§ 245, subd. (a)(1)). Although three of Shaw's strike offenses were relatively remote in time, the only substantial gap in his adult criminal record was attributable to his serving a 21-year prison sentence for one of his robbery convictions. The trial court expressly considered the various mitigating factors raised by Butler and Shaw, including their arguments regarding the nature of the current offense and their respective roles in it, and evidence of their backgrounds. We find nothing arbitrary or irrational in the trial court's decision not to give those mitigating factors dispositive weight. D. Senate Bill 1393
Butler and Shaw argue that they are entitled to a remand so that they can be resentenced in light of Senate Bill 1393. The People agree, as do we.
Effective January 1, 2019, Senate Bill 1393 amended sections 667, subdivision (a), and 1385, subdivision (b), to allow a court, in its discretion, to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.) Under the versions of these statutes in effect when the trial court sentenced Butler and Shaw, the court was required to impose a five-year consecutive term for "any person convicted of a serious felony" (former § 667, subd. (a)), and the court had no discretion "to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667" (former § 1385, subd. (b)).
The People concede that the changes to the law enacted by Senate Bill 1393 apply to judgments, like those in this case, which were not final on January 1, 2019, when Senate Bill 1393 went into effect. (See People v. Garcia (2018) 28 Cal.App.5th 961, 973.) The matter therefore must be remanded to allow the trial court to consider whether to exercise its newly authorized discretion under amended sections 667, subdivision (a), and 1385, subdivision (b), to dismiss one or more of defendants' prior serious felony conviction enhancements. E. Ability to Pay Fines
Because the matter is being remanded for resentencing, Shaw's argument, raised for the first time on appeal, that his sentence constitutes cruel and unusual punishment is not ripe. We therefore decline to consider it here.
Shaw argues, based on Dueñas, supra, 30 Cal.App.5th 1157, that the trial court violated his constitutional rights by imposing the $10,000 restitution fine, as well as the stayed $10,000 parole revocation fine, without considering his ability to pay them. This is an argument he raised for the first time only on appeal.
There is a split in authority regarding whether Dueñas was correctly decided. (See, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, 326 [disagreeing with Dueñas].) The courts of appeal have also divided over whether a defendant's failure to object at sentencing based on inability to pay forfeits the issue. (See, e.g., People v. Castellano (2019) 33 Cal.App.5th 485, 489 [no forfeiture because of failure to object]; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 [finding issue forfeited].) The California Supreme Court has granted review in People v. Kopp (2019) 38 Cal.App.5th 47, 95-96, review granted November 13, 2019, S257844, to resolve at least the first of these splits.
The Supreme Court's grant of review was limited to the following issues: "Must a court consider a defendant's ability to pay before imposing or executing fines, fees, and assessments? If so, which party bears the burden of proof regarding defendant's inability to pay?" (People v. Kopp, review granted Nov. 13, 2019, S257844 .)
Here, however, we need not decide whether Dueñas was correctly decided, or whether Shaw forfeited the issue by failing to raise it first in the trial court. The matter must in any case be remanded for the trial court to exercise its discretion under Senate Bill 1393. The People concede that on remand Shaw may request a hearing and present evidence demonstrating his inability to pay the challenged fines. F. Senate Bill 136
"Prior to January 1, 2020, section 667.5, subdivision (b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a separate prior prison term and had not remained free of custody for at least five years." (People v. Jennings (2019) 42 Cal.App.5th 664, 681.) Effective January 1, 2010, Senate Bill 136 amended section 667.5, subdivision (b), to limit its prior prison term enhancement to only prior prison terms for certain sexually violent offenses. (§ 667.5, subd. (b).)
The parties properly agree that none of Butler's or Shaw's prior prison terms were for a sexually violent offense. The parties also properly agree that the amendments enacted by Senate Bill 136 apply retroactively to any case in which the judgment is not yet final on Senate Bill 136's effective date. (See People v. Jennings, supra, 42 Cal.App.5th at p. 682.) The section 667.5 enhancements found true and imposed against Shaw and Butler, therefore, must be stricken.
Because the trial court did not previously sentence Butler to the maximum possible sentence, the trial court could exercise its discretion to reassess Butler's total sentence on remand, though it may not sentence him to a term in excess of the original. (See People v. Burns (1984) 158 Cal.App.3d 1178, 1184 [trial court entitled to reconsider entire sentencing scheme on remand, but may not sentence defendant to term in excess of original.) Striking Shaw's prison prior enhancements would not change his overall sentence, since his section 667.5, subdivision (b) enhancements were already stayed. Nevertheless, as discussed above, Shaw must be resentenced in light of the changed circumstances after Senate Bill 1393.
III. DISPOSITION
Defendants' convictions are affirmed. Their sentences are vacated. The matter is remanded to the trial court with directions (1) to exercise its discretion under sections 667, subdivision (a)(1) and 1385, as amended by Senate Bill 1393, with respect to both defendants; (2) if requested, to consider Shaw's arguments and evidence regarding his inability to pay the $10,000 restitution fine and stayed $10,000 parole revocation fine that were previously imposed; (3) to strike the enhancements previously imposed against defendants under former section 667.5, subdivision (b); and (4) to resentence defendants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J. We concur: CODRINGTON
Acting P. J. SLOUGH
J.