P. v. Williams

Filed 4/11/07 P. v. Williams CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Christopher J. Warner, Judge. Affirmed.

David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Respondent.

Defendant was convicted of robbery (Pen. Code, 211)^[1]and kidnapping for robbery ( 209, subd. (b)). Following a third sentencing hearing, he was sentenced to a total determinate term of 11 years, consecutive to an indeterminate sentence of life with the possibility of parole.

I

FACTUAL AND PROCEDURAL BACKGROUND^[2]

The indictment against [defendant] contained nine counts based on three separate incidents. Counts 1 and 2 (robbery) and counts 3, 4, and 5 (kidnaping for robbery) stemmed from a June 1996 incident at a Kragen Auto Parts Store in San Bernardino. [Defendant] entered the store, pointed a gun at the clerk, and stated This is a robbery and Give me all the money. After the clerk put money into a box, [defendant] instructed another employee to carry the box and forced him and two other employees to accompany [defendant] approximately 200 yards to a parking lot. [Defendant] then took the box and ordered the employees to walk back to the store.

Count 6 (robbery) and counts 7 and 8 (kidnaping for robbery) were based on a July 1996 incident at a San Bernardino Radio Shack. [Defendant] showed a gun to two men working at the store and told them it was a robbery. One of the two employees put money from the register into a box and, at [defendants] direction, the two accompanied him approximately 200 hundred [sic] feet down the street. [Defendant] then took the box from the employee holding it and instructed the two to return to the store.

An August 1996 incident gave rise to count 9 of the indictment (robbery). [Defendant] entered a Redlands Kragen Auto Parts store, pointed a gun at the clerk, and directed him to open the safe. The clerk placed money from the safe into a box, handed it to [defendant], and let [defendant] out of the store. (Williams, supra, 421 F.3d at pp. 884-885.)

After defendant waived his right to a jury trial, the trial court found him guilty of four counts of robbery ( 211, counts 1, 2, 6, and 9) and five counts of kidnapping for the purpose of robbery ( 209, subd. (b), counts 3, 4, 5, 7, and 8). The court also found true the enhancement alleging that defendant personally used a firearm within the meaning of section 12022.5, subdivision (a), with regard to counts 1, 4, 5, 6, 7, 8, and 9. The court sentenced defendant to prison for life by imposing two consecutive life terms and a consecutive determinate term of 27 years.

Defendant subsequently appealed. This court affirmed the convictions, but vacated the sentence because the trial court had violated section 654 in imposing separate sentences for the robbery and the kidnapping for robbery convictions. This court ordered the trial court to resentence defendant to the longest potential term of imprisonment, which, in this case, would be kidnapping for robbery mandated by the 1997 amendment to section 654. This court later modified its opinion, rejecting defendants claim that the retroactive application of the 1997 amendment of section 654 constituted an ex post facto violation.

On March 15, 2000, pursuant to this courts remand, the trial court resentenced defendant to a total determinate term of 26 years 4 months (excluding the Orange County sentence), plus two consecutive life sentences with the possibility of parole. The court sentenced defendant under the amended version of section 654, which provided that an act punishable under different provisions of law could only be punished under one of those provisions. The amended statute also required the court to impose the sentence for the count carrying a higher sentence when multiple counts were based on the same act.

Subsequently, the California Supreme Court denied defendants petition for review. The trial court later denied defendants petition for a writ of habeas corpus. He then filed a habeas petition in this court, which was also denied. Our high court also denied a subsequent habeas petition. (See Williams, supra, 421 F.3d at p. 885.)

Defendant then filed a federal habeas petition, which the United States District Court denied. He then filed a timely notice of appeal, but the district court denied defendant a certificate of appealability (COA). The Ninth Circuit Court of Appeals subsequently issued a COA limited to the question of whether the state trial courts application of the amended version of section 654 violated defendants rights under the ex post facto clause. (Williams, supra, 421 F.3d at p. 885.)

In a published opinion, the Ninth Circuit Court of Appeals remanded the matter for a third sentencing hearing, finding the application of the amended statute was an ex post facto violation. (Williams, supra, 421 F.3d at pp. 886-887.) The court explained, Under the earlier version of [section] 654, the trial court had the discretion to sentence [defendant] for either of two crimes he was convicted of based on the same act, i.e., robbery or kidnaping for robbery. By contrast, the amended version of the statute required the trial court to sentence him for the crime carrying the higher penalty. Because the amended statute removed the judges discretion to impose a lighter sentence, applying it to [defendant] violated the Ex Post Facto Clause under Lindsey [v. Washington (1937)] 301 U.S. [397,] 401, 57 S.Ct. 797 and Weaver [v. Graham (1981)] 450 U.S. [24,] 29, 101 S.Ct. 960. The state trial courts application of the amended version of [section] 654 was thus contrary to clearly established Supreme Court precedent. (Id. at p. 887.) The Ninth Circuit Court of Appeals also found that such an error required reversal without inquiring into its harmfulness. (Id. at pp. 887-888.)

On April 4, 2006, following arguments from counsel and defendant,^[3]the trial court resentenced defendant to a total determinate term of 11 years, consecutive to an indeterminate sentence of life with the possibility of parole.^[4] The court also imposed a $10,000 restitution fine and a $10,000 parole revocation fine, staying the latter pending

successful completion of parole. Restitution to the victims was ordered in an amount to be determined by the Department of Corrections and Rehabilitation pursuant to Penal Code section 1202.4 and Government Code section 13967, subdivision (c). The court, at that time, however, failed to pronounce sentence on count 4 as well as to award any presentence custody credits.

On October 23, 2006, defendant filed a motion in the trial court to correct an unauthorized sentence and for award of presentence custody credits. On October 25, 2006, the court corrected the sentence to impose life with the possibility of parole on count 4, which was stayed pursuant to section 654. The court also awarded defendant 884 days of presentence custody credits (751 actual days plus 133 conduct) and an additional 2,212 actual days served in state prison between the March 15, 2000, sentencing and the April 4, 2006, resentencing.

II

DISCUSSION

Defendant timely appealed, and upon his request this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.

We offered defendant an opportunity to file a personal supplemental brief, and he has done so. In his supplemental brief, defendant makes two purported arguable issues: (1) the trial court had the power or discretion to strike his prior felony convictions and enhancements in the furtherance of justice pursuant to section 1385; and (2) his constitutional rights were violated when the court determined the amount of restitution without holding a hearing to determine his ability to pay. We have reviewed the entire record and the contentions of both counsel and defendant and have not found any arguable issues.

Romero is inapplicable in the present matter. In Romero, the Supreme Court held that under section 1385, subdivision (a), a trial court may exercise judicial discretion to strike a prior felony conviction in cases brought under the three strikes law. (Romero, supra, 13 Cal.4th at pp. 529-532; see also People v. Carmony (2004) 33 Cal.4th 367, 375; People v. Williams (1998) 17 Cal.4th 148, 158.) Here, there were no prior strike convictions alleged. In addition, it is well established that a trial court has no discretion under section 1385 to strike the punishment for a personal firearm use enhancement. (People v. Thomas (1992) 4 Cal.4th 206, 213-214; People v. Herrera (1998) 67 Cal.App.4th 987, 991-992.)

To the extent defendant argues the court erred in failing to strike his current convictions on the kidnapping charges or the court misunderstood its discretion in striking the current charges, we find defendants arguments unmeritorious. Though a trial court generally has the power to strike current convictions pursuant to section 1385 (see People v. Orin (1975) 13 Cal.3d 937, 946; People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 502-503), there is no evidence that the trial court here believed it did not have the power to dismiss a current conviction or that it abused its discretion in impliedly refusing to dismiss the current convictions. At the third sentencing hearing, after noting the court was giving defendant a break, defense counsel asked the court to again consider striking the sentence as it applies to the kidnapping charge as well, so that he is only sentenced as to the principal term of robbery . . . . The court impliedly denied counsels request to strike the current convictions. Based on this record, we cannot say the court abused its discretion in declining to dismiss any of defendants current convictions.

Defendants claim that he was denied his constitutional right to due process when the court ordered him to pay a $10,000 restitution fine without a hearing on his ability to pay is likewise not well taken. Initially, we note defendant, who was very vocal during his sentencing hearing, waived this issue by failing to object below. Failure to object to the sentencing court concerning the ability to pay a statutory restitution fine constitutes a waiver of the issue on appeal. (People v. McMahan (1992) 3 Cal.App.4th 740, 750; see also People v. Tillman (2000) 22 Cal.4th 300, 302-303.)

In any event, defendants claim lacks merit. As indicated above, the court imposed a restitution fine pursuant to section 1202.4 in the amount of $10,000 and a section 1202.45 parole revocation fine in the same amount. Section 1202.4 mandates the imposition of a restitution fine in every case in which a person is convicted of a crime, unless [the court] finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. ( 1202.4, subd. (b).) If the defendant is convicted of a felony, the fine shall be no less than $200 and no more than $10,000, and shall be set at the discretion of the court and commensurate with the seriousness of the offense . . . . ( 1202.4, subd. (b)(1).) In setting the amount of the fine, the court shall consider any relevant factors including, but not limited to, the defendants inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered any losses as a result of the crime, and the number of victims involved in the crime. ( 1202.4, subd. (d).) Section 1202.45 mandates, in every case in which a person is convicted of a crime the sentence for which includes a period of parole, the imposition of an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of section 1202.4, which shall be suspended unless the persons parole is revoked.

Defendants reliance on In re Enrique Z. (1994) 30 Cal.App.4th 464, in which the court indicated [a]n ability-to-pay finding is required . . . where the court imposes a restitution fine exceeding the statutory maximum, (id. at p. 469) is misplaced. That case discussed former Government Code section 13967, subdivision (a), then applicable to adult offenders, and former Welfare and Institutions Code section 730.6, subdivision (b), then applicable to juvenile offenders, which mandated restitution fines under certain circumstances, subject to the defendants ability to pay . . . . (In re Enrique Z., supra, at p. 469.) The requirement of an ability-to-pay finding was based on this language.

Section 1202.4, however, contains no comparable language. The statute indicates only that a defendants inability to pay is a relevant factor [ ] for the court to consider in imposing a restitution fine in excess of the $200 statutory minimum. ( 1202.4, subd. (d).) Nothing in the statute suggests that the record must reflect a finding, either express or implied, that the defendant has the ability to pay the fine imposed. Indeed, with respect to the former sort of finding, as indicated above, the statute specifically states that no express findings bearing on the amount of the fine are required, and [s]ince ability to pay is a factor bearing on the amount of the fine, the trial court was not required to make [an express] finding on that issue. (People v. Romero (1996) 43 Cal.App.4th 440, 448.)

We have now concluded our independent review of the record and find no arguable issues.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

McKINSTER

Acting P.J.

GAUT

J.

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^[1] All future statutory references are to the Penal Code unless otherwise stated.

^[2] The factual background is taken from the Ninth Circuit Court of Appeals published opinion entitled Williams v. Roe (9th Cir. 2005) 421 F.3d 883, 884-885 (Williams).

^[3] During his statements to the court, defendant made an oral motion to strike pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). However, as the prosecutor noted, Romero did not apply because there were no strike allegations alleged in this case. The court agreed, explaining that Romero had no application in the instant matter.

^[4] The court also resentenced defendant on the Orange County case, again adding a consecutive determinate term of four years eight months.