P. v. Bryson

Filed 7/3/07 P. v. Bryson CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant Eli Bryson of 30 counts of lewd and lascivious conduct upon a child under the age of 14 years. (Pen. Code,  288, subd. (a).)^[1] In bifurcated proceedings, defendant admitted a prior felony conviction for purposes of a strike prior and a five-year enhancement.

Sentenced to state prison for an aggregate term of 133 years, defendant appeals, contending (1) the trial courts order that defendant pay $2,440 in attorney fees is unauthorized and must be stricken; (2) the trial courts imposition of consecutive terms for counts two through thirty contravenes Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely); (3) the sentence of 133 years, a de facto term of life without the possibility of parole, violates the state and federal prohibitions against grossly disproportionate punishment; (4) the trial court abused its discretion in refusing to strike the strike prior and the courts abuse of discretion violates defendants due process rights; and (5) the $24.09 jail classification fee was not orally imposed at sentencing and must be stricken from the minutes and abstract of judgment.

The Attorney General concedes the attorney fee order must be reversed and the matter remanded to the trial court for notice and a hearing. We accept the concession and will remand for notice and a hearing. The minutes and abstract of judgment must be corrected to omit a jail classification fee and include the courts decision on attorney fees. We reject defendants other contentions and otherwise affirm the judgment.

FACTS

During the period of August 2004 through February 8, 2005, defendant molested T.L., the 12-year-old daughter of his girlfriend S.L. S.L. worked the swing shift and defendant watched T.L. at his home when she came home from school. At first, defendant had the victim touch his penis over his clothing. This happened two times. Eventually, defendant had the victim orally copulate him. She did so eight times or more than 10 times. Defendant touched the victims chest and vagina (all the time) under her clothing, digitally penetrated the victim eight or 10 to 20 times, sucked her breasts more than 10 times, and humped her 13 or 20 times or more, each time French kissing her.^[2] Some of the incidents had been videotaped. One evening when S.L. went to defendants home from work, she noticed a video camera. She turned it on and saw T.L. orally copulating defendant. S.L. took T.L., the video camera and tape, fled defendants home and called the police.

In a taped telephone conversation between S.L. and defendant who was in jail, defendant admitted molesting T.L. and videotaping the same. Defendant testified at trial. He admitted the incidents on the videotape but denied committing the number of incidents and certain types of conduct T.L. claimed. He claimed he molested T.L. three or four times. He admitted felony convictions for attempted burglary in 1985 and possession of cocaine with intent to distribute in 1992.

DISCUSSION

I

Defendant first contends that the $2,440 attorney fees order must be stricken as unauthorized for lack of notice and a hearing. He also claims insufficient evidence supports the amount. He argues remand for a hearing is required. The parties recognize the record reflects defendant was never given notice, when counsel was appointed, he may have to reimburse the county for the expense of counsel. At sentencing, the court simply imposed the amount based upon the current fee schedule, obtaining no information from appointed counsel as to the number of hours he had expended and his costs in representing defendant. Defendant said he had no money. The Attorney General agrees the pertinent procedural safeguards were not followed. He requests remand for the trial courts determination of the actual costs of attorney services and defendants ability to pay.

[P]roceedings to assess attorneys fees against a criminal defendant involve the taking of property, and therefore require due process of law, including notice and a hearing. [Citations.] (People v. Phillips (1994) 25 Cal.App.4th 62, 72.)

Section 987.8 provides in relevant part: (b) In any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings . . . , the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof. Here, no hearing was conducted on the issue of attorney fees; the record is insufficient to support the attorney fees order under section 987.8.

People v. Flores (2003) 30 Cal.4th 1059 (Flores) held that remand for notice and a hearing under section 987.8, subdivision (b), is the remedy when the trial court ordered defendant to pay attorney fees without these procedural safeguards. (Flores, supra, 30 Cal.4th at pp. 1068-1069.) The parties agree.

Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense. ( 987.8, subd. (g)(2)(B).) Here, the trial court made no finding as to whether defendants financial circumstances were unusual since there was no hearing. Remand is required to allow the trial court to determine whether defendants financial circumstances are unusual after conducting a hearing. (Flores, supra, 30 Cal.4th at pp. 1068-1069.)

II

The trial court sentenced defendant to state prison for an aggregate term of 133 years as follows: count one, 12 years (the midterm of six years, doubled for the strike prior); counts two through thirty, a consecutive four-year term for each count (one-third the midterm or two years, doubled for the strike prior); and a five-year enhancement for the prior serious felony. For counts two through thirty, the court ran the terms consecutively, finding that the crimes were separate offenses pursuant to statutory and case law definition. In aggravation, the court found defendant took advantage of a position of trust, had prior convictions which were numerous and increasingly serious, had been to prison before, and was on parole when he committed the current offenses. The court found no factors in mitigation.

Defendant contends the trial court engaged in judicial fact-finding in that the jury did not decide and defendant did not admit that the 29 counts were sufficiently aggravated to support consecutive terms rather than concurrent terms, contravening Blakely. Defendant notes the California Supreme Court decided otherwise in People v. Black (2005) 35 Cal.4th 1238 (Black) but raises the issue seeking reconsideration and to preserve the issue for further review.

The Attorney General argues consecutive terms were mandatory in that each offense was not committed on the same occasion, and not arising from the same set of operative facts. ( 667, subd. (c)(6), (7); People v. Deloza (1998) 18 Cal.4th 585, 591 (Deloza); People v. Jeffries (2000) 83 Cal.App.4th 15, 25-26 (Jeffries).) [S]ame occasion refers to at least a close temporal and spatial proximity between the acts underlying the current convictions. (Deloza, supra, 18 Cal.4th at p. 595; Jeffries, supra, 83 Cal.App.4th at p. 26.) Because the trial court found the crimes were separate offenses, the Attorney General argues, consecutive terms were mandatory and there was no requirement that the court set forth aggravating factors in support of consecutive terms. Assuming consecutive sentences were discretionary, the Attorney General argues the court set forth appropriate factors to justify the same.

Assuming without deciding that consecutive terms were not mandatory but instead discretionary, the court set forth several aggravating factors to justify the same. Jury determinations on aggravating factors for consecutive sentences are not required according to Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham) recently overruled Black, in part, and held that a defendant is entitled to a jury trial and proof beyond a reasonable doubt on a fact, other than a prior conviction, found to impose an upper term. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864].) Cunningham did not discuss the constitutionality of Californias judicial factfinding procedure for imposition of consecutive sentences.

While there is a statutory presumption in favor of the middle term as the sentence for an offense [citation], there is no comparable statutory presumption in favor of concurrent rather than consecutive sentences for multiple offenses except where consecutive sentencing is statutorily required. The trial court is required to determine whether a sentence shall be consecutive or concurrent but is not required to presume in favor of concurrent sentencing. (People v. Reeder (1984) 152 Cal.App.3d 900, 923.) A defendant who is convicted of more than one offense may receive a consecutive sentence in the courts discretion. A defendant does not have a legal right to concurrent sentencing which makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. (Blakely, supra, 542 U.S. at p. 309.)

Black held that the factfinding requirement for imposition of consecutive sentences is not subject to Blakely. (Black, supra, 35 Cal.4th at pp. 1261-1264.) Cunningham did not overrule this holding in Black. We must follow Black.

III

Defendant next contends that the sentence of 133 years violates the state and federal prohibitions against grossly disproportionate punishment.

Because defendant failed to object on either state or federal grounds in the trial court, the Attorney General asserts the issue is forfeited. In the event forfeiture is found, defendant claims counsel rendered ineffective assistance in failing to object. Hence, we reach the merits.

The judicial inquiry commences with great deference to the Legislature. Fixing the penalty for crimes is the province of the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among different penological approaches. [Citations.] Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive. [Citations.] (People v. Martinez (1999) 76 Cal.App.4th 489, 494.)

[I]n California a punishment may violate [California Constitution, article I, section 17] if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) To apply the foregoing rule, we (1) examine the nature of the offense and the offender, (2) compare the penalty with punishments imposed for more serious offenses in the same jurisdiction, and (3) compare the penalty with punishments imposed for the same offense in other jurisdictions. (Id. at pp. 425-427.)

In examining the nature of the offense and the offender, we must consider not only the offense as defined by the Legislature but also the facts of the crime in question (including its motive, its manner of commission, the extent of the defendants involvement, and the consequences of his acts); we must also consider the defendants individual culpability in light of his age, prior criminality, personal characteristics, and state of mind. [Citations.] (People v. Crooks (1997) 55 Cal.App.4th 797, 806.)

Relying upon the concurring opinion of Justice Stanley Mosk in Deloza, supra, 18 Cal.4th 585, defendant claims that his sentence is impossible for a human being to serve and is thus grossly disproportionate and violates the state Constitution.

As this court stated in People v. Byrd (2001) 89 Cal.App.4th 1373: We respectfully disagree with Justice Mosk. [] Preliminarily, we note that no opinion has value as a precedent on points as to which there is no agreement of a majority of the court. [Citations.] [Citations.] Because no other justice on our Supreme Court joined in Justice Mosks concurring opinion, it has no precedential value. [] In any event, we respectfully disagree with Justice Mosks analysis. In our view, it is immaterial that defendant cannot serve his sentence during his lifetime. In practical effect, he is in no different position than a defendant who has received a sentence of life without possibility of parole: he will be in prison all his life. However, imposition of a sentence of life without possibility of parole in an appropriate case does not constitute cruel or unusual punishment under either our state Constitution [citation] or the federal Constitution. [Citation.] [] Moreover, in our view, a sentence such as the one imposed in this case serves valid penological purposes: it unmistakably reflects societys condemnation of defendants conduct and it provides a strong psychological deterrent to those who would consider engaging in that sort of conduct in the future. (Id. at p. 1383.)

Ignoring the grievous and enduring impact his string of intrusive crimes imposed over more than six months on the 12-year-old victim, defendant directs our attention to what he claims is one prior serious felony conviction. He says it did not involve any physical violence or injury nor did his current crimes involve any physical injury or violence, noting that the jury rejected the allegation that counts one and two involved force.^[3] Defendants record reflects much more.

Defendants convictions include misdemeanor car burglary in 1984, attempted first degree burglary in 1985, misdemeanor battery in 1987, possession and sale of rock cocaine in 1988, and possession of cocaine base with intent to distribute in 1991. His performance on probation when granted was unsatisfactory. He has been to state prison two times and federal prison once. His crimes against this child victim began within months after his release from federal prison.

Although defendant declined to comment about his drug use to the probation officer, he claims on appeal that his prior arrests and convictions suggest[] that [he] for many years battled an addiction to rock cocaine. Defendants sister was allowed to speak at sentencing. She said defendant was abused as a child. Defendant had told the probation officer he had been physically and sexually abused by his alcoholic father. Although diagnosed as bipolar, defendant was not taking medication. Defendant expressed remorse. Defendants sister claimed that family history suggested defendant would not live much past the age of 62 years and he was already 45 years old.

Defendant committed numerous serious or violent crimes against this 12-year-old victim. Defendants crimes went beyond mere touching and included oral copulation and digital penetration. Further, defendant videotaped some of his crimes against this child. Considering the crimes here and the criminal, the punishment cannot be said to exceed the gravity of the harm done to this child victim.

For the second prong, defendant compares his punishment for lewd and lascivious conduct with a child under the age of 14 years to first degree murder with or without special circumstances, noting that although statutorily designated as a violent crime it involves no physical violence or injury. He fails to mention he was convicted of 30 counts. He also fails to recognize his crimes inflicted immeasurable harm upon the victim. Thus, his argument with respect to the second prong lacks merit and we must discuss it no further.

Defendant makes no argument with respect to the third prong. His sentence does not shock the conscience nor is it disproportionate under California law. He fares no better under federal law, we can say the same. The Eighth Amendment [to the United States Constitution], which forbids cruel and unusual punishments, contains a narrow proportionality principle that applies to noncapital sentences. [Citations.] (Ewing v. California (2003) 538 U.S. 11, 20 [155 L.Ed.2d 108, 117] (Ewing), quoting Harmelin v. Michigan (1991) 501 U.S. 957, 997 [115 L.Ed.2d 836, 866] (Harmelin).) [T]he gross disproportionality principle . . . [is] applicable only in the exceedingly rare and extreme case. (Lockyer v. Andrade (2003) 538 U.S. 63, 73 [155 L.Ed.2d 144, 156].)

Here, as discussed in connection with defendants California constitutional claim, defendants sentence is not grossly disproportionate to the numerous crimes against this child for which he is being punished. Thus, his Eighth Amendment claim fails.

IV

Defendant asked the trial court to exercise its discretion and strike the strike prior or, alternatively, to run the terms concurrently, rather than consecutively, to achieve a state prison sentence of 40 years or less. Defendant contends the trial courts refusal to do either constitutes an abuse of discretion and violates due process.

In order to strike a strike prior, a trial court must find that a defendant falls outside the spirit of the Three Strikes law. (People v. Williams (1998) 17 Cal.4th 148, 158-161; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530.) A trial courts sentencing choice will not be disturbed on appeal absent a showing of clear abuse of discretion, that is, its decision is so irrational or arbitrary that no reasonable person could agree with it; the defendant bears the burden of showing the decision was irrational or arbitrary. (People v. Carmony (2004) 33 Cal.4th 367, 376-377 (Carmony).)

Here, at sentencing, the trial court said it read and considered the probation report, including defendants criminal history. The court heard oral arguments by defense counsel and the prosecutor. It listened to the statements of defendant and his sister. The court acknowledged defendants background which included abuse and a criminal history. The court considered defendants likelihood to reoffend. The court noted, even if the strike prior was dismissed, defendant would still receive a sentence of 69 years, and if the court sentenced on the same counts concurrently to arrive at 40 years, defendant would still die in prison. The court also considered the impact of defendants crimes upon the child victim. The court refused to strike the strike prior and declined to impose concurrent sentences.

Defendant renews his arguments for a lesser sentence on appeal. We may not substitute our judgment for that of the trial court. (Carmony, supra, 33 Cal.4th at p. 377.) Defendant has not met the burden of demonstrating an abuse of trial court discretion or a violation of due process.

V

The trial court did not orally impose the $24.09 jail classification fee although it appears in the sentencing minutes and on the abstract of judgment. Defendant contends the minutes and abstract must be corrected, striking the fee.

The Attorney General argues the fee is imposed upon all felons with an ability to pay and the probation report recommended the same; thus, the judgment should be modified and the fee imposed.

Government Code section 29550.2, subdivision (a), provides that [a]ny person booked into a county jail . . . is subject to a criminal justice administration fee for administration costs incurred in conjunction with the arresting and booking if the person is convicted of any criminal offense relating to the arrest and booking. Actual administrative costs are defined to include [t]he classification of an arrestee. (Gov. Code, 29550.2, subd. (c)(7).) If the person has the ability to pay, a judgment of conviction shall contain an order for payment of the amount of the criminal justice administration fee . . . . (Gov. Code, 29550.2, subd. (a).) If the person has the ability to pay language makes the fee discretionary. The court did not impose it and the People did not object. This is not a case where a mandatory fine has been omitted and can be corrected at any time as an unauthorized sentence. (People v.Smith (2001) 24 Cal.4th 849, 853.) Thus, we address it. (People v. Tillman (2000) 22 Cal.4th 300, 303.)

DISPOSITION

The order requiring defendant to pay $2,440 in attorney fees is reversed. The matter is remanded to the trial court for notice and a hearing on attorney fees under section 987.8, subdivision (b). The trial court is directed to delete the $24.09 jail classification fee. Once the trial court, on remand, concludes its hearing on attorney fees, it shall revise its minutes and abstract to reflect its decision on attorney fees and its omission of the jail classification fee, and send a copy of its revised abstract to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.

NICHOLSON , J.

We concur:

BLEASE , Acting P.J.

CANTIL-SAKAUYE , J.

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^[1] All undesignated references to sections are to the Penal Code.

^[2] T.L.s testimony at trial differed from her statements during the multi-disciplinary interview which accounts for the differences in the number of times certain conduct occurred. The detective claimed the victim seemed to get confused quite easily when describing an incident and the conduct during the incident. S.L. testified that T.L. had difficulties in school, had been held back a grade and had problems with comprehension.

^[3] In counts one and two, defendant was charged with lewd conduct by force ( 288, subd. (b)(1)) but the jury convicted defendant of the lesser included offenses of lewd conduct ( 288, subd. (a)).