P. v. Corsini
Filed 7/16/13 P. v. Corsini CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
THOMAS CORSINI,
Defendant and Appellant.
D062236
(Super. Ct.
No. SCE318006)
APPEAL from
a judgment of the Superior Court
of
County, Patricia K. Cookson, Judge. Affirmed.
Robert
Booher, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, William M. Wood and Meagan J.
Beale, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Thomas Corsini of one count of
Code, §§ 211, 213, subd. (a)(1)(A))
while a principal was armed with a firearm (§ 12022, subd. (a)(1)); one
count of resisting a peace officer
(§ 148, subd. (a)); and one count of possession of a billy
(§ 22210). The trial court sentenced
Corsini to prison for a term of four years eight months and ordered Corsini to
pay $1,300 in direct victim restitution.
Corsini
contends that (1) his conviction for possession of a billy should be reversed
because the statute under which he was convicted violates the Second Amendment
to the United States Constitution; and (2) the restitution order should be
modified to specify that the liability is joint and several as to other persons
also convicted for the residential robbery.
We conclude that Corsini has forfeited both arguments by failing to
raise them in the trial court, and accordingly we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On January 17, 2012, Haresh Gobin went
to a house in La Mesa to see a
woman he had met on a chat line. After
Gobin was let into the house by a woman (later identified as Jessica Smith) he
was approached by two men (later identified as Corsini and Sean Fragger). Corsini and Fragger robbed Gobin at gunpoint,
taking $450 and diamond earrings from him.
Smith took Gobin's credit cards and identification from his wallet. Gobin reported the incident to police a week
later.
On January 28, 2012, police conducted a
search of the house where Corsini was living after detaining another resident
of the house, who was on probation.
During the search, when officers attempted to conduct a patdown of
Corsini, he resisted by swinging his arms, kicking, thrashing around and trying
to reach for a gun concealed in his waistband.
Corsini stopped resisting only after the officers threatened to use a
taser on him. In Corsini's bedroom, the
officers found a billy club, which was "an old style police
baton."
For the
incidents occurring on January 17 and 28, 2012, Corsini was charged with
robbery in concert (§§ 211, 213, subd. (a)(1)(A)), including a weapons
allegation (§ 12022, subd. (a)(1)) (count 1); resisting an executive
officer (§ 69) (count 2); and possession of a billy (§ 22210)
(count 3).
title="">[2] The jury convicted Corsini on counts 1 and 3
as charged, and on count 2 it convicted Corsini of the lesser included offense
of resisting a peace officer (§ 148, subd. (a)). The trial court imposed a prison term of four
years eight months and ordered Corsini to pay $1,300 in direct victim
restitution to Gobin for the items taken in the robbery.
II
DISCUSSION
A. By
Not Raising It in the Trial Court, Corsini Forfeited His Second Amendment Challenge to the Statute Criminalizing
Possession of a Billy
Corsini
argues that his conviction for possessing a billy should be reversed because
the statute under which he was convicted —
section 22210 — violates the Second Amendment to the
States Constitution under District of Columbia v. Heller (2008) 554
U.S. 570 (Heller) and McDonald v.
City of Chicago (2010) 561 U.S. __ [130 S.Ct. 3020, 177 L.Ed.2d 894] (
Corsini has
forfeited this issue because he did not raise it in the trial court. " ' "[N]o
procedural principle is more familiar to this Court than that a constitutional
right," or a right of any other sort, "may be forfeited in criminal
as well as civil cases by the failure to make timely
to determine it." ' [Citations.]
'The purpose of this rule is to encourage parties to bring errors to the
attention of the trial court, so that they may be corrected. [Citation.]' " (
875, 880-881.)
Corsini
contends that even though he did not raise the Second Amendment issue in the
trial court, we should nevertheless consider it. Although an appellate court may chose to
entertain a forfeited issue, " '[w]hether or not it should do so is entrusted to its
discretion.' " (In re
Sheena K., supra, 40 Cal.4th
at p. 887, fn. 7.) One of the
factors a court considers in deciding whether to exercise its discretion to
consider a forfeited issue is whether case law developments after the trial
proceedings explain the failure to raise the issue earlier. (People
v. Villa (2009) 178 Cal.App.4th 443, 448 [considering a Second Amendment
challenge based on Heller because
"defendant's trial predated Heller, making a timely objection impossible"].) Here, both Heller and
proceedings in Corsini's case. We
therefore elect not to exercise our
discretion to decide the forfeited Second Amendment issue.
B. Corsini
Forfeited His Request That the Restitution Order Specify Joint and Several Liability with the Other
Parties Involved in the Robbery
Corsini's
second appellate argument concerns the restitution order. As we have explained, the trial court ordered
Corsini to pay $1,300 in restitution to Gobin based on the value of the money
and jewelry taken from him during the robbery.
have specified that the restitution order was joint and several as between
Corsini, Fragger and Smith — all of whom suffered convictions arising from the
robbery of Gobin. Corsini requests that
we correct the abstract of judgment to expressly provide that the restitution
order is joint and several to any restitution ordered against Fragger and
Smith. (See People v. Neely (2009) 176 Cal.App.4th 787, 800.)
Corsini has
forfeited his claim because he failed to raise it in the trial court. (People v. O'Neal (2004) 122
Cal.App.4th 817, 820 [waiving challenge to restitution order by not raising it
in the trial court].) " '[C]laims involving the
trial court's failure to properly make or articulate its discretionary sentencing choices' raised for the first time on
appeal are not subject to review."
(People v. Smith (2001) 24 Cal.4th 849, 852, italics added.)
restitution order is a discretionary sentencing choice, as it is within the
trial court's discretion to specify
that a victim restitution order is joint and several as to other
codefendants. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535-1536.) Therefore, because Corsini did not ask the
trial court to exercise its discretion to specify the joint and several nature
of the restitution order, he may not raise the issue on appeal.
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE,
J.
name="_ftn1" title="">[1] Unless otherwise indicated, all further statutory references
are to the Penal Code.
name="_ftn2" title="">[2] Smith and Fragger were also charged with crimes and entered
guilty pleas.
