Opinion
E050928 Super.Ct.No. RIF142270
08-09-2011
THE PEOPLE, Plaintiff and Respondent, v. SHAWN DE JON TONEY, Defendant and Appellant.
Alan S. Yockelson, 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 Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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OPINION
APPEAL from the Superior Court of Riverside County. Donald Rudloff, Judge. (Retired judge of the former Mun. Ct. for the San Diego Jud. Dist. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part and remanded with directions.
Alan S. Yockelson, 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 Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Shawn De Jon Toney was charged with two counts of robbery and two counts of dissuading a witness. A jury convicted him of lesser included charges of petty theft on the robbery counts, and found him guilty as charged on the counts of dissuading a witness. Firearm enhancements were found not true. Defendant admitted alleged prior offenses, but asked the court to exercise its discretion under Penal Code section 1385 to dismiss a qualifying strike prior conviction. The trial court declined to do so, and sentenced defendant to 13 years in state prison. Defendant appeals, contending the trial court abused its discretion in imposing the aggravated term on the principal count, and also abused its discretion in declining to dismiss his strike prior. In addition, defendant urges that one of his petty theft convictions must be dismissed, or punishment on one of the offenses must be stayed. The People concede the latter point, agreeing that one of the petty theft convictions must be vacated. As to the other points, we find no abuse of discretion in the trial court's selection of the aggravated term of imprisonment, or in its refusal to dismiss defendant's strike conviction. Accordingly, we affirm the judgment, but remand with directions to vacate one of the misdemeanor petty theft counts.
FACTS AND PROCEDURAL HISTORY
The victims, Tammy Gilmore and her husband Ricky Bradford, operated a hot dog stand near the bus terminal in downtown Riverside. Gilmore and Bradford also operated a towing business. Bradford would park the tow truck near the hot dog stand and leave Gilmore in charge if he needed to respond to a tow call.
On or about the afternoon of December 30, 2007, defendant approached Bradford and asked for a business card for the tow service. Later that evening, Gilmore and Bradford packed up the hot dog stand, and went to the grocery store nearby to get supplies for the next day. As Bradford and Gilmore alighted from their vehicle, defendant came up behind Gilford, grabbed her by the hair, and pointed a gun at her head. He demanded that she turn over the money or he would shoot her. Gilmore gave defendant the $124 they had earned that day. Defendant stated that, if the victims went to police, he would come back and kill their whole family. Fearful that defendant would make good on the threat, Gilmore and Bradford did not report the incident for a few days. Eventually, however, they reported the matter to police, and identified defendant from a photographic lineup as the assailant.
As a result, defendant was charged with two counts of robbery (Pen. Code, § 211) (counts 1 & 2) and two counts of dissuading a witness by force or threat of force (Pen. Code, § 136.1, subd. (c)(1)) (counts 3 & 4).
At trial, defendant testified in his own behalf, telling a quite different version of events. According to defendant, he had met Bradford and Gilmore at the hot dog stand in January 2007, and saw them there approximately six or eight times over the course of the year. On the afternoon of December 28, 2007, defendant passed time with Bradford while waiting for a delayed bus. Defendant then conceived the idea of "hustling" Bradford for some money. Defendant told Bradford that he had an inside connection at the California Department of Motor Vehicles (DMV) who could fix issues with a driver's DMV records. When Bradford expressed interest, defendant pretended to call his contact at the DMV. Defendant told Bradford he could arrange to have Bradford's and Gilmore's DMV issues cleared up, at a cost of $100 each, but he would need half of the money up front. Bradford could pay the other half when the records had been cleared. Bradford gave defendant $50 right away and had Gilmore come down to the hot dog stand with an additional $50.
By this time, defendant had missed the bus he had been waiting for, and asked Bradford for a ride home. Defendant helped Bradford close up the hot dog stand, and then Bradford invited defendant to have some drinks. Bradford bought some cans of beer and drove to Bradford's apartment. Bradford and defendant were out on the balcony, drinking, while Gilmore cooked food. Defendant met the couple's son. Later that evening, Bradford and defendant left; defendant asked to stop by a store to buy some toiletries on the way home. Bradford gave defendant $20 for the purchases, and finally took defendant home at about 9:30 p.m.
After telephoning the DMV several times the next day about the status of his records, Bradford suspected something was wrong. He telephoned defendant and demanded his money back. Defendant indicated he did not have all the money then. Bradford told defendant that if he did not return all the money, Bradford would call police and say that defendant had robbed him. Over the next few days, Bradford again demanded the return of his money, or he would go to the police.
On Tuesday, January 1, 2008, defendant was approached by Lawrence Sanders, another hot dog vendor, who knew both Bradford and defendant. Sanders told defendant that Bradford was claiming that defendant had robbed him. Defendant told Sanders that he had not robbed Bradford, but had only borrowed money from him. The next day, defendant got some temporary work and earned about $80. He called Bradford to say he had a partial payment for him, but Bradford refused to take less than the full amount. On Thursday, January 3, 2008, defendant saw Sanders at Sanders's hot dog stand. Defendant gave Sanders $50 to pass along to Bradford. Defendant hoped Sanders, who knew both men, would be able to smooth things over. About a week later, defendant came up with another $50 to give to Bradford, through Sanders, but he was unable to reach either man by telephone, and eventually gave up.
On cross-examination, defendant admitted he was a hustler and con man. He admitted using different names. He had several scams he would run, including the DMV records scam. He would ask for half the money up front, but never carry out his end of the bargain.
Sanders also testified at defendant's trial. He, like Bradford, operates a hot dog stand in downtown Riverside. Sanders also runs a commissary facility through which hot dog vendors obtain their health permits to operate in the city. Bradford uses Sanders's facility, so they had known one another since about 2004 or 2005. Sanders knew defendant as a customer of his hot dog stand for approximately three or four years. They would sometimes exchange casual conversation when defendant stopped to purchase food.
Sanders first became aware of trouble between defendant and Bradford when defendant told him he was having a problem with another hot dog vendor. Defendant asked Sanders to help him settle the dispute, saying that he owed Bradford $100 and wanted to pay him back. Defendant gave Sanders $50 to pass along to Bradford, and would bring more money as soon as he could. When Sanders called Bradford, however, Bradford said he could not take the money because he had already reported the matter to the police as a robbery. Sanders also testified that he returned the original $50 to defendant, despite defendant's testimony that he had never seen the money again. Sanders testified that defendant never mentioned having borrowed money from Bradford, and never said that Bradford had threatened to file a false police report against defendant. Sanders had also said in an investigative interview that Bradford had told Sanders that he was upset because he had been nice to defendant, yet defendant had robbed him.
According to police department records, Bradford and Gilmore reported the alleged robbery on January 3, 2008. The temporary agency through which defendant claimed to have gotten work to earn the money to return to Bradford had no record of defendant working at the time in question for two of the names that defendant used. The agency had not searched all the alternate names that defendant sometimes used, however.
The jury deliberated over the conflicting versions of events, and reported on the second day of deliberations that it was unable to reach a verdict. Upon the court's further inquiry, the jury agreed that further efforts might be fruitful, and resumed deliberation. Later that day, the jury returned verdicts finding defendant not guilty on counts 1 and 2, the robbery counts, but finding him guilty of lesser offenses of petty theft as to each of those charges. The jury found the firearm enhancements not true on counts 1 and 2. As to counts 3 and 4, dissuading a witness by force or threat of force, the jury found defendant guilty as charged on both offenses, but again found the gun enhancements not true. The information had also alleged that defendant suffered a 2003 conviction for assault with a deadly weapon, which was pleaded as a prison prior, a prior serious felony, and a strike prior. After the jury's verdicts, defendant admitted the truth of his prior conviction allegations.
Defendant requested the court to vacate the true finding on the prior strike conviction, but the trial court declined to do so. The trial court imposed the aggravated term of four years on count 3, deemed the principal count, doubled to eight years as a second strike. The same sentence on count 4 was stayed pursuant to Penal Code section 654. The court imposed jail terms of 10 days each on counts 1 and 2, with credit for time served. The court also imposed a term of five years for the prior serious felony conviction, to run consecutive to the term on count 3. The court dismissed the prior prison term allegation. Thus, defendant's aggregate prison sentence was 13 years.
Defendant filed a timely notice of appeal.
ANALYSIS
I. The Court Did Not Abuse Its Discretion in Imposing the Aggravated Term
Defendant first contends that the trial court abused its discretion in selecting the aggravated term as the appropriate sentence on count 3; he argues that the court improperly weighed the aggravating and mitigating circumstances, effectively disregarding the factors in mitigation.
At the sentencing hearing, the court discussed various circumstances in mitigation and aggravation, including circumstances relating to the offense and circumstances relating to defendant, the offender. The court recognized as a factor in mitigation that defendant was financially needy and the motivation was to provide the necessities of life. Also in mitigation were a number of character references presented by defendant's friends. In aggravation, the court observed that the crime (witness/victim dissuasion by force or threat of force) involved substantial threats of force or violence and a high degree of viciousness or callousness. The court found that the crime demonstrated planning and sophistication, and noted that the crime took place within only a few days after defendant had been released from incarceration for his earlier crime. His term of imprisonment had apparently had no effect on defendant. The court also found that the victims were vulnerable, and they had suffered emotional injuries as a result of defendant's actions.
Defense counsel urged in response that the court should consider additional mitigating factors: the amount of money taken was small, and defendant had tried to pay it back, at least in part. Defendant was well-behaved in court and stayed out of additional trouble while he was out on bail in the instant case. The probation officer had indicated that he would have recommended probation, except that defendant was statutorily ineligible for probation. (Cal. Rules of Court, rules 4.423(a)(6), (b)(5).) Counsel also argued that the court could not properly use some of the aggravating circumstances it had mentioned, as, for example, the threats of force or violence constituted an element of the offense of dissuading a witness by force or threats of force; it could not be used also as a factor in aggravation under California Rules of Court, rule 4.420(d). Defense counsel similarly argued that defendant's prior record could not be used as a factor in aggravation when the same prior record is used, as here, to impose a five-year enhancement for a prior serious felony conviction. Counsel further urged the court to reconsider its evaluation of the case in line with the jury's assessment. The jury had acquitted defendant of the robbery charges, obviously disbelieving the victims' accounts of the salient events. Counsel stated, "The jury, quite frankly, saw the case less seriously than it appears the Court is seeing it. [¶] So I would just invite the Court to give a little deference to the jury's characterization of the case and consider that in deciding which term to select as the appropriate term of imprisonment, and certainly it seems that, you know, at most the middle term would be sufficient rather than the aggravated or upper term . . . ."
The prosecutor responded, taking issue with some of the proposed mitigating factors, and putting forth additional aggravating factors, including that defendant had served a prior prison term, that he was on probation at the time of the offense, and that his prior performance on probation or parole was unsatisfactory.
The court proceeded to impose sentence in accordance with its initial indication, imposing the aggravated term on the principal count of witness/victim dissuasion.
Defendant argues on appeal, first, that two factors recited by the court—use of threats or force, and defendant's prior conviction—were improperly used twice, the former because it was an element of the underlying offense, and the latter because it was used to impose a sentence enhancement. Defendant further argues, second, that three additional factors—viciousness and callousness of the offense, planning and sophistication, and vulnerability of the victims—were insufficiently supported by the evidence. Finally, defendant contends that the court did not give any weight to or ignored circumstances in mitigation, in addition to those mentioned by the court.
The appropriate standard of review for the selection of the sentence term is abuse of discretion. (Pen. Code, § 1170, subd. (b).) We find no abuse of discretion here.
Defendant acknowledges that, after Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856] the California Legislature enacted changes to the determinate sentencing law, giving discretion to trial courts to select any of the three available sentence terms as the appropriate sentence for any offense. The court would continue to be guided by the considerations of aggravating and mitigating circumstances, but would no longer be required to weigh such factors, or to cite specific facts in support of its sentencing choice. (See People v. Sandoval (2007) 41 Cal.4th 825, 846-847, 851.) While the court may not impose an aggravated term by using the fact of any enhancement upon which sentence is imposed (Pen. Code, § 1170, subd. (b)), it shall select a term which, in its discretion, best serves the interests of justice, and must set forth reasons on the record. (Ibid.)The California Supreme Court also held in People v. Black (2007) 41 Cal.4th 799, that "the presence of one aggravating circumstance renders it lawful for the trial court to impose an upper term sentence." (Id. at p. 815; see also People v. Cruz (1995) 38 Cal.App.4th 427, 433-434.)
Defendant also argues that the post-Cunningham revisions to the Determinate Sentencing Law (DSL), redefining the upper term as the statutory maximum, are a mask for increasing the sentence beyond the actual maximum without requiring a finding of the predicate aggravating "facts" to be proved to a jury beyond a reasonable doubt. Defendant recognizes that "California Supreme Court precedent precludes adoption of this position," but raises the argument to preserve it for federal review.
While it is true that the selection of the upper term may not be based upon improper factors, there were proper factors, which defendant does not challenge, which are in themselves sufficient to uphold the trial court's exercise of its discretion to select the aggravated term. For example, it is undisputed that defendant committed the instant offenses within days of his release from prison; he was thus on parole at the time of the offenses, and his performance on probation or parole was poor. " 'When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.' (People v. Price (1991) 1 Cal.4th 324, 492 . . . . )" (People v. Cruz, supra, 38 Cal.App.4th at pp. 433-434.) More specifically, improper dual use of facts does not necessitate resentencing if it is not reasonably probable that a more favorable sentence would have been imposed in absence of error. (People v. Osband (1996) 13 Cal.4th 622, 728.) Here, there is no question that the trial court was aware of its discretion, and of all the enumerated possible aggravating and mitigating considerations with respect to the offense and the offender. The arguments with respect to the insufficiency of the evidence to support certain factors, or consideration of additional factors not stated in the probation report, were all expressly made and brought to the court's attention at the time of sentencing. There is no indication that the court was unaware of, or would otherwise have been persuaded by, further repetition of those arguments. It is not reasonably probable that the court would have selected a more lenient term in the absence of its reliance on the improper factors.
The court had before it defendant, who, at the time of these crimes, had just been released from prison and was on parole. When defendant faced difficulties, he did not avail himself of lawful resources. Rather, he cultivated friendships with others, with a view to taking advantage of them for his own gain. He preyed upon their professional and personal vulnerabilities. His entire defense to the more serious robbery charges was that, instead, he was "only" an habitual liar and con artist. There may have been some evidence of an attempt to repay the victims, but other evidence showed the attempts were half-hearted and soon abandoned. The trial court was entitled to take account of such circumstances, including the assessment that defendant had lied at trial, in evaluating defendant's character and his prospects for rehabilitation. (See People v. Aragon (1992) 11 Cal.App.4th 749, 764.) Under all the circumstances, including defendant's own defense, the court was faced with an incorrigible offender who was impervious to previous correction and who had but little regard for the rights or property of others. It is not reasonably probable that the court would have imposed a more lenient sentence in the absence of error.
II. The Court Did Not Abuse Its Discretion in Declining to Dismiss Defendant's
Strike Prior
Defendant next contends that the trial court erred in failing to dismiss his prior strike conviction. We review the trial court's ruling for abuse of discretion. (See, e.g., People v. Williams (1997) 16 Cal.4th 153, 210.)
Defendant admitted one prior serious or violent felony strike conviction, a 2003 conviction for assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) The circumstances were these: During a domestic dispute, defendant wrested a baseball bat away from his former girlfriend's 14-year-old brother, then kicked the boy in the ankle, and used both hands to push the bat into the boy's ribs before running away. In the instant case, defendant asked the court to exercise its discretion to dismiss the strike prior, and to find that defendant should be treated as outside the three strikes scheme. (People v. Superior Court (Romero)(1996) 13 Cal.4th 497.) Defense counsel emphasized that the strike itself was less serious than other assaults or more violent crimes, the jury here had acquitted defendant of the most serious charges, and had disbelieved the victims' story of a violent attack. Otherwise, defendant had attempted to repay the victims; he had grown up under difficult circumstances, deprived of family relationships and guidance; he was a provider to his family and a father to his children.
The court recognized that defendant was not a seriously violent criminal, his record reflected repeat theft-related offenses, and violations of parole. The court remarked, "I cannot say with any degree of certainty that he is an individual who falls outside the parameters of the Three Strikes Law."
We agree with the trial court's assessment. Indeed, the entire theory of defendant's defense was that he did not need to resort to robbery by force to get what he wanted: he was a self-described con artist instead. Moreover, the principal count of which defendant was convicted was witness dissuasion by threats of force. Defendant clearly had not progressed beyond resorting to violence in his ordinary interactions with others. He was, and remained, a danger to society. The trial court's decision not to dismiss the strike prior was not arbitrary. (People v. Carmony (2004) 33 Cal.4th 367, 377.) Defendant's conduct and prospects placed him well within the scheme for sentencing of repeat offenders.
III. One of Defendant's Petty Theft Convictions Should Be Vacated
In supplemental briefing, defendant raises the point that the misdemeanor petty theft convictions were based on the same act of taking, although two counts were alleged, one for each victim (Bradford and Gilmore). Petty theft is a property crime, and not a crime of violence against the person. Wilkoff v. Superior Court (1985) 38 Cal.3d 345, holds that, "A defendant may properly be convicted of multiple counts for multiple victims of a single criminal act only where the act prohibited by statute is centrally an 'act of violence against the person.' [Citation.]" (Id. at p. 351.) The People agree, in this instance, that defendant could properly only be convicted of one count of petty theft based on the single act of taking money from the victims. Thus, the People concede that one of defendant's misdemeanor petty theft convictions must be vacated.
DISPOSITION
The judgment is affirmed, except that the matter is remanded to the trial court with directions to vacate the conviction on one of the misdemeanor counts.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
HOLLENHORST
Acting P. J.
CODRINGTON
J.