Opinion
C088377
02-24-2020
THE PEOPLE, Plaintiff and Respondent, v. SAMUEL EURAL CULVERSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F03205)
This is defendant Samuel Culverson's third appeal in this case. In this appeal, defendant challenges the trial court's resentencing decision on remand contending the trial court abused its discretion by imposing the upper term for the second degree robbery conviction and refusing to strike the 10-year firearm enhancement under Penal Code section 12022.53, as provided in Senate Bill No. 620 (Stats. 2017, ch. 682, § 2) (S.B. 620), and the serious felony prior five-year enhancement under sections 667, subdivision (a), and 1385, subdivision (b), as provided in Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1-2) (S.B. 1393). He further requests that we remand the matter for the trial court to conduct a hearing regarding his ability to pay the $2,500 restitution fine and stayed parole revocation restitution fine, a $40 court operations assessment, and a $30 conviction assessment imposed during resentencing.
All further statutory references are to the Penal Code unless otherwise specified.
We affirm the judgment but remand to allow the trial court to consider defendant's ability to pay the court operations and conviction assessments.
FACTUAL AND PROCEDURAL BACKGROUND
A jury found defendant guilty of second degree robbery (here, robbery of a cigarette store) while personally using a firearm and found he had four strike priors/serious felony convictions from Nevada. (See People v. Culverson (Dec. 9, 2016, C080901) [nonpub. opn.] (Culverson I).) Defendant appealed, challenging the sufficiency of the evidence to support each of the four strike priors/serious felony convictions. We agreed three lacked sufficient evidentiary support, reversing those strike priors/serious felony convictions and striking the associated five-year enhancements imposed for each. We, however, gave the People the opportunity to retry them.
The People elected to retry one strike prior/serious felony conviction we reversed in Culverson I -- a 2000 Nevada conviction for robbery with use of a deadly weapon. (See People v. Culverson (July 3, 2018, C084286) [nonpub. opn.] (Culverson II).) A jury found true the allegations that defendant had been convicted of robbery with a deadly weapon in Nevada in 2000 and that the prior conviction met the statutory elements for robbery under California law. We reversed the true finding that defendant's Nevada conviction was a serious felony within the meaning of the three strikes law, struck the associated five-year sentence enhancement, and remanded for resentencing. We also remanded for the trial court to consider exercising its discretion to strike the firearm enhancement under section 12022.53, as provided in S.B. 620.
On November 16, 2018, the trial court held a resentencing hearing. The trial court noted that it would resentence defendant and consider whether to strike the firearm enhancement as provided in section 12022.53, in accordance with our Culverson II opinion. The prosecutor requested that the trial court also consider whether to strike defendant's enhancement for his prior serious felony conviction under sections 667, subdivision (a), and 1385, subdivision (b), as amended by S.B. 1393, which would become effective January 1, 2019.
Defense counsel joined in that request and identified the following "reasons for striking priors or gun use in this case": imposing substantial time given defendant's age -- 66 at resentencing -- could result in "a life-time imprisonment"; "that [defendant] did not, other than display it to the clerk, shoot anybody or do anything with it, didn't interrupt the person who tried to interrupt him by sticking it in [his or her] face or anything like that"; defendant has had a lifelong struggle with drug addiction; and the sentence and enhancements arise from "basically a double use of facts."
The trial judge said: "[B]ased on the facts and circumstances of this case, [defendant] did point the gun at the store clerk, . . . , and, as he was leaving, another person was walking into the store, and he did point the gun at him and threatened to shoot him in the leg or the foot, something of that nature." Defendant interrupted, "[n]o." The trial judge continued: "The point being is he did use a gun to commit this robbery, and, [the prosecution], is right, if he had discharged that gun into somebody, we probably wouldn't be sitting here today. The fact is he did use the gun to commit the crime, so I'm not inclined to strike the allegation, the enhancement allegation, under [section] 12022.53[, subdivision] (b). [¶] In addition, the Court would look at [defendant's] record, and it's a long record. He doesn't seem to be out of custody for very much -- for any significant amount of time. And looking at the charges, it does appear [defendant] is an addict, and that is part of the issues in this case. However, being an addict is not -- is clearly a problem and it clearly is something that is very hard to shake. However, it's not a good argument to release someone early. It's someone who can avail [himself or herself] of whatever services are available where they happen to be, which in [defendant's] case is in prison. So the Court is inclined to also impose the five-year enhancement under [section] 667[, subdivision] (a)(1)."
The trial court sentenced defendant to 25 years in prison consisting of 10 years for the second degree robbery conviction (imposing the upper term, doubled), a consecutive 10 years for the firearm use enhancement, and a consecutive five years for the strike prior/serious felony conviction. The court further imposed "all previous conditions and fines and fees," which included a $2,500 restitution fine and stayed parole revocation restitution fine, a $40 court operations assessment, and a $30 conviction assessment.
DISCUSSION
I
Upper Term And Enhancements
Defendant believes the trial court abused its discretion at resentencing because it: (1) violated the prohibition against dual use of facts under section 1170, subdivision (b) and California Rules of Court, rule 4.420(c); and (2) failed to obtain an updated probation report or consider relevant factors in exercising its discretion. To the extent the sentencing issues are deemed forfeited, defendant alternatively asserts he received ineffective assistance of counsel.
The People argue defendant forfeited any claims of sentencing error and, "even if his claims are entertained on the merits, he fails to establish an abuse of the trial court's sentencing discretion."
We do not consider the People's forfeiture argument or defendant's ineffective assistance of counsel argument because we find the trial court did not abuse its discretion.
A
There Was No Dual Use Of Facts
Defendant contends the trial court's comments "reflect the court relied upon the same factors to both impose the upper term and refuse to strike the enhancements" -- that is, "use of the gun in the commission of the robbery and the fact that [he] was a recidivist" -- in violation of the prohibition against dual use of facts. We disagree.
Section 1170 and California Rules of Court, rule 4.420 prohibit the dual use of certain factors in determining whether to impose an aggravated term. Specifically, section 1170, subdivision (b) states: "[T]he court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law." California Rules of Court, rule 4.420(c) states: "To comply with section 1170[, subdivision] (b), a fact charged and found as an enhancement may be used as a reason for imposing a particular term only if the court has discretion to strike the punishment for the enhancement and does so. The use of a fact of an enhancement to impose the upper term of imprisonment is an adequate reason for striking the additional term of imprisonment, regardless of the effect on the total term." California Rules of Court, rule 4.420(d) further provides: "A fact that is an element of the crime upon which punishment is being imposed may not be used to impose a particular term." Thus, the trial court may not use a fact that is an element of the crime as an aggravating factor, nor may the court impose a greater term based on the use of a firearm or any other factor if that is also the basis of an enhancement.
Here, there was no dual use of facts in imposing the upper term. During resentencing, the trial court discussed defendant's use of the firearm during the robbery, the manner in which he used the firearm (including his threat to shoot a person who walked into the store), and defendant's "long record" of criminal offenses.
Defendant's "long record" of criminal offenses is an aggravating factor under California Rules of Court rule 4.421(b)(2). Defendant's criminal history includes three Nevada felony convictions that do not qualify for enhancements under section 667, subdivision (a)(1) because the offenses were not "serious felony [convictions] in this state or [an] offense committed in another jurisdiction which includes all of the elements of any serious felony," as explained in Culverson I and Culverson II. Accordingly, there is no dual use of facts relating to the court's imposition of the upper term based on defendant's record, because the enhancement under section 667, subdivision (a)(1) was based on only one of defendant's four Nevada felony convictions.
Additionally, the trial court did not impose the upper term based solely on defendant's use of a firearm, the fact pertinent to the section 12022.53 enhancement. The trial court also identified as factors in its consideration the manner in which defendant used the firearm (i.e., pointing it at the store clerk and the person walking into the store) and his threat to shoot the person walking into the store "in the leg or the foot, something of that nature." As the People appropriately note, the threat of great bodily harm is an appropriate aggravating factor in considering whether to impose the upper term. (See People v. Douglas (1995) 36 Cal.App.4th 1681, 1691-1692 [manner in which firearm was used "clearly involved the threat of great bodily harm, which . . . is a factor legally sufficient to justify imposition of the upper term"].) It appears defendant takes issue with the trial court's description of the manner in which defendant used the firearm.
In a footnote in his opening brief, defendant recites a witness's "differing accounts of seeing the gun." Defendant does not explain the significance, if any, of this recitation of facts relating to the trial court's statement at resentencing. Thus, we need not and do not consider it. (People v. Carroll (2014) 222 Cal.App.4th 1406, 1412, fn. 5 ["[A]ppellate court may disregard points raised in a footnote rather than being properly presented under a discrete heading with appropriate analysis"]; People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19 ["To the extent defendant perfunctorily asserts other claims, without development and, indeed, without a clear indication that they are intended to be discrete contentions, they are not properly made, and are rejected on that basis"].) In his reply brief, defendant argues the trial court's reliance on that witness's testimony "would not have been supported by the record as a proper basis for the court's decision" because "[t]here was conflicting evidence at trial as to the interaction between [defendant] and [the witness] related to a gun." We decline to consider this argument made for the first time in defendant's reply brief. (American Indian Model Schools v. Oakland Unified School Dist. (2014) 227 Cal.App.4th 258, 275-276.)
In short, we find no dual use of facts in violation of section 1170 and California Rules of Court, rule 4.420 because the trial court identified aggravating facts not pertinent to the firearm use and strike prior/serious felony conviction enhancements in imposing the upper term.
B
There Was No Abuse Of Discretion
Defendant contends the trial court abused its discretion in declining to strike the enhancements because it "simply rel[ied] upon the facts that formed the basis of the enhancements themselves" and failed to obtain an updated probation report. Specifically, defendant asserts "[t]he only factors cited by the court in its sentencing decision were the use of the gun in the commission of the robbery, and the fact that [he] was a recidivist." In his view, the trial court failed to consider the factors relevant to the "interest of justice." We disagree.
A trial court's discretionary decision to dismiss or strike an enhancement is reviewed for abuse of discretion. "In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' " [Citations.] Second, a ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " ' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
As defendant notes, the "interest of justice" analysis "includ[es] the rights of the defendant, the interests of society represented by the People, and individualized considerations pertaining to the defendant and his or her offenses and background. (People v. Rocha (2019) 32 Cal.App.5th 352, 359.) Here, the trial court listened to the parties' arguments, including defendant's mitigation argument relating to his age and addiction. Indeed, the trial court specifically addressed defendant's addiction argument. That the trial court did not expressly address all of defendant's arguments in its reasoning does not mean it did not consider the arguments presented. The trial court further discussed defendant's offenses and background. Defendant has failed to show the court considered impermissible factors in declining to strike the enhancements or acted so irrationally or arbitrarily that no reasonable person could agree with its ruling.
We also find no abuse of discretion regarding the trial court's use of the prior probation report during resentencing. This court has said that when a defendant is not eligible for probation, referral to probation for an updated probation report upon resentencing is a matter committed to the sound discretion of the sentencing court. (People v. Webb (1986) 186 Cal.App.3d 401, 408-409.) Defendant points us to no evidence in the record, nor have we found any, that "the trial court acted on incomplete information or that there was information which [defendant] wished to have considered that was not." (People v. Bullock (1994) 26 Cal.App.4th 985, 990.) There is further nothing in the record "suggesting the trial court incorrectly believed it could not order a probation report had it wanted to do so." (Ibid.) Defendant speculates that "a new report would potentially have provided the court information about [his] in custody behavior, efforts at rehabilitation and treatment, and current addiction status relevant to the trial court's decision about how to structure his sentence." Such speculation is insufficient to show an abuse of discretion. "We are entitled to presume that the sentencing court properly exercised its discretion in imposing [the] sentence absent contrary evidence." (Id. at pp. 990-991.)
II
Ability To Pay
Defendant argues "[i]mposing the assessments and restitution fines violated [his] right to due process since he is indigent and the trial court did not make a finding that he had a present ability to pay before imposing them," citing Dueñas. (People v. Dueñas (2019) 30 Cal.App.5th 1157.) The People respond that defendant forfeited the argument by failing to raise his inability to pay in the trial court and, even if not forfeited, the argument fails on the merits -- arguing Dueñas was wrongly decided with respect to the due process analysis, the restitution fine should be reviewed under the excessive fines clause and survives such review, and the restitution fine does not violate due process because it does not implicate a fundamental liberty interest and survives rational basis review.
We conclude defendant forfeited any ability to pay argument relating to the $2,500 restitution fine and parole revocation restitution fine because our Supreme Court has already determined an objection is necessary to challenge the imposition of a restitution fine in excess of the mandatory minimum under section 1202.4, as here. (People v. Nelson (2011) 51 Cal.4th 198, 227.) Defendant failed to object to the $2,500 restitution fine at the time of resentencing and has therefore forfeited that claim on appeal. (Ibid.)
Defendant did not, however, forfeit his challenge regarding the mandatory court assessments. As the People note, courts have diverged on the matter of forfeiture relating to a defendant's ability to pay mandatory assessments following Dueñas. (Compare People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 [ability to pay argument forfeited because Dueñas was a foreseeable change in the law, noting Dueñas herself raised the constitutional issue and cited existing precedent and legal principles in her challenge] with People v. Castellano (2019) 33 Cal.App.5th 485, 491 [remanded to allow the defendant to "request a hearing and present evidence demonstrating his inability to pay the fines, fees, and assessments imposed by the trial court" because the conviction and sentence were not yet final].) We join the courts finding no forfeiture.
It is true a defendant who does not object to the imposition of fines, fees, and assessments at the time of sentencing generally forfeits such a challenge. (People v. Castellano, supra, 33 Cal.App.5th at p. 490 ["a defendant must in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed"].) It is well established, however, that "[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence." (People v. Welch (1993) 5 Cal.4th 228, 237.) Our Supreme Court has held that, "[i]n determining whether the significance of a change in law excuses counsel's failure to object at trial, we consider the 'state of the law as it would have appeared to competent and knowledgeable counsel at the time of trial.' " (People v. Black (2007) 41 Cal.4th 799, 811.) The court also noted the fact " 'that some attorneys may have had the foresight to raise [an] issue does not mean that competent and knowledgeable counsel reasonably could have been expected to anticipate[]' " a change in the law. (Id. at p. 812.) This includes changes that are rooted in longstanding legal principles. (People v. Jones (2019) 36 Cal.App.5th 1028, 1034.)
Given the mandatory nature of the court operations and conviction assessments imposed here, as well as the absence of authority invalidating such assessments based on inability to pay, we conclude defendant could not have reasonably been expected to challenge the trial court's imposition thereof. Any such objection would have been futile and, accordingly, the ability to pay challenge was not forfeited.
In Dueñas, the court held that principles of due process would preclude the trial court from imposing the court operations and conviction assessments if defendant demonstrates he is unable to pay them. (People v. Dueñas, supra, 30 Cal.App.5th at p. 1168.) As in Castellano, we find it appropriate to remand the matter to the trial court to allow defendant to request a hearing and present evidence demonstrating his inability to pay the mandatory assessments imposed. (People v. Castellano, supra, 33 Cal.App.5th at p. 491.) Defendant bears the burden of proving an inability to pay. (Id. at p. 490.) Under the circumstances, we do not address the remainder of the People's arguments.
DISPOSITION
The judgment is affirmed. We remand to allow the trial court to consider defendant's ability to pay challenge with respect to the court operations and conviction assessments.
/s/_________
Robie, Acting P. J. I concur: /s/_________
Mauro, J. BUTZ, J., Concurring and Dissenting.
I concur in all parts of the Discussion except the portion of section II relating to the imposition of the mandatory court operations and conviction assessments and defendant's ability to pay them.
At defendant's sentencing on January 22, 2016, the trial court imposed a $40 court operations assessment (Pen. Code, § 1465.8) and a $30 court facilities conviction assessment (Gov. Code, § 70373). These same amounts were confirmed at his resentencing in November 2018. Following resentencing, the court declined defendant's request to reconsider the imposition of these assessments in light of People v. Dueñas (2019) 30 Cal.App.5th 1157, 1172 (Dueñas).
The majority relies on Dueñas as authority for a limited remand for the trial court to allow defendant to request a hearing and present evidence demonstrating his inability to pay the mandatory assessments imposed. (Maj. opn. ante, at pp. 10-11.) I am not persuaded that the analysis used in Dueñas is correct.
Our Supreme Court is now poised to resolve this question, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47 (review granted Nov. 13, 2019, S257844), which agreed with the court's conclusion in Dueñas that due process requires the trial court to conduct an ability to pay hearing and ascertain a defendant's ability to pay before it imposes court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373. (Kopp, at pp. 95-96.)
In the meantime, I join those authorities that have concluded the principles of due process do not require determination of a defendant's present ability to pay before imposing the assessments at issue in Dueñas and in this proceeding. (People v. Kingston (2019) 41 Cal.App.5th 272, 279-281; People v. Hicks (2019) 40 Cal.App.5th 320, 329, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1068-1069; People v. Caceres (2019) 39 Cal.App.5th 917, 928.) Having done so, I reject defendant's Dueñas challenge to the above-referenced assessments. I would affirm the judgment and not remand for an ability to pay hearing.
/s/_________
Butz, J.