P. v. Brown
Filed 3/11/13 P. v. Brown CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY BROWN,
Defendant and Appellant.
B234117
(Los Angeles
County
Super. Ct.
No. BA360070)
APPEAL from
a judgment of the Superior Court
of
County.
Henry J. Hall, Judge.
Reversed and remanded in part; affirmed in part.
Valerie G.
Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Linda C. Johnson and
Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
_______________
Appellant Anthony Brown was convicted, following a jury
trial, of four counts of attempted second
degree robbery in violation of Penal Code sections 211 and 664,
degree robbery in violation of section 211, one count of possession of a
firearm by a felon in violation of section 12021, subdivision (a)(1), and one
count of assault with a deadly weapon in violation of section 245, subdivision
(a)(1). The jury found true the
allegations that appellant personally used a firearm in the commission of the
robberies within the meaning of section 12022.53, subdivision (b) and
personally and intentionally discharged a firearm in the commission of the
count 8 robbery within the meaning of section 12022.53, subdivision (c). The jury also found true the allegation that
appellant personally used a firearm in the commission of the assault within the
meaning of section 12022.5, subdivision (a).
Appellant
appeals from the judgment of conviction, contending that the trial court's
order that he pay $10,000 in attorney's fees for his court appointed lawyer was
improper. Appellant further contends
that the trial court abused its discretion in refusing to strike any of his
prior strike convictions, and that his third strike sentence constitutes cruel and
unusual punishment. Appellant also
contends that the abstract of judgment and sentencing minute order must be
corrected to reflect the trial court's oral pronouncement of sentence. We reverse the order requiring appellant to
pay attorney's fees and remand this matter for further proceedings on that
issue. We order the abstract of judgment
corrected, as set forth in the disposition.
The judgment is affirmed in all other respects.
Facts
Between
July 10 and August 3, 2009,
appellant committed a series of robberies and attempted robberies at nine
different locations in downtown Los Angeles. All of the robberies were recorded by
surveillance cameras, and the resulting still photos and videos were played for
the jury at appellant's trial.
Appellant
began his series of robberies at a branch of Citibank located on East
First Street.
He entered the branch about 11:00 a.m.
on July 10, 2009, walked up
to teller Arturo Ramos, pointed a black handgun at him and said, "Give me
the hundreds." Ramos said that he
did not have any money. Appellant asked
who did. Ramos looked at another teller,
Sue Susuki. Appellant walked over to
her, pointed his gun at her and said something.
Susuki "yelped."
Appellant fled without any money.
Ramos identified appellant as the robber from a photographic lineup and
at trial.
In the
afternoon of July 10, appellant entered the California Bear Credit Union at 100
South Main Street in Los Angeles, walked up to teller Gayl Pinnock, pointed a
black handgun at her and said, "I'd advise you to give me all the
hundreds." Pinnock gave appellant a
stack of hundred-dollar bills totaling about $6,000. Appellant took the money and left.
On July 23, 2009, about 8:25
p.m., appellant entered a Rite Aid store on West
Seventh Street, approached cashier Esther Alejo,
asked for cigarettes, walked around the store, then returned and asked Alejo
for money. Alejo said that she was
closing. Appellant pulled out a handgun,
took money from the cash register and left the store. Alejo identified appellant from a
photographic lineup.
On July 25, 2009, about 3:50 p.m., appellant entered a Chase bank on
South Figueroa, walked up to teller Xochilt Gamez Ruiz, and asked if he could
cash a check. Gamez Ruiz asked if
appellant had an account with the bank.
Appellant pulled up his shirt, revealing a gun. He put his hand on the gun and said,
"Give me the fuckin' money or I'll kill you." Gamez Ruiz was afraid and could not
move. Another bank worker turned
around. Appellant put the gun in his
waistband and fled without any money.
In the
evening of July 25, appellant entered a Denny's restaurant on South Figueroa
and was seated by the hostess, Dina Cruz.
Appellant made several trips to the restroom, then approached Cruz when
she was at the cash register. He lifted
his shirt, displayed a gun and demanded money.
Cruz asked appellant if he was serious.
He threatened to shoot her. Cruz
opened the register and began giving appellant money. He reached over, grabbed the money and fled.
On July 27, 2009, about 7:00 p.m., appellant entered a Big Lots store
on West Seventh Street,
left and returned carrying a plastic bag.
He went to cashier Rebecca Fernandez, asked where he could find rubbing
alcohol, walked away and then returned with rubbing alcohol. Appellant put his right hand into the
register's open cash drawer and used his left hand to point a gun at
Fernandez. He told Fernandez to give him
money. She stepped back and appellant
took about $300 from the register. As
appellant walked away, he encountered security guard Carla Zanotti. He pointed a gun at her head as he walked by
her. Fernandez and Zanotti identified
appellant at the preliminary hearing and trial.
On July 29,
2009, about 9:00 p.m., appellant entered a Farmer Boys restaurant located on
South Alameda, walked up to cashier Jasmin Ivona Lopez Coultas and placed a
food order. As she was preparing
appellant's food, she saw appellant holding a handgun. She asked, "Are you kidding?" Appellant said, "I'm not joking
around." He fired the gun, hitting
a refrigerator behind Lopez Coultas.
Appellant then left, firing one more shot as he left. Lopez Coultas identified appellant in a
photographic lineup and at trial.
On August
1, 2009, about 6:00 p.m., appellant entered a Pollo Loco restaurant on East
Ninth Street, walked up to the cashier area, pointed a gun at employees Silvia
Velasquez and Gabriela Tirado, and told Tirado to give him money. Tirado opened her register and gave appellant
money. He left.
On August 3, 2009, in the evening,
appellant entered a Burger King restaurant on South
Central Avenue, and placed an order with assistant
manager Jose Francisco Ruiz. When Ruiz
opened the register, appellant pointed a gun at Ruiz and said, "Give me
the money and don't do anything stupid."
Ruiz gave him the money.
Appellant then demanded money from another register. Ruiz opened that register and appellant
grabbed the money from it and fled.
In response
to appellant's series of robberies, Los Angeles Police Department Officer
Matthew Valencia conducted surveillance of a Carl's Jr. restaurant at Olympic
and Main around closing time on August
5, 2009. He had viewed
surveillance video from the Pollo Loco robbery.
Around 8:00 p.m., Officer
Valencia observed appellant attempt to enter the restaurant. Appellant could not get in because the doors
were locked. Appellant looked like the
robber in the video. Police officers arrested
appellant about a block from the Carl's Jr.
The officers found a loaded handgun in appellant's waistband.
Appellant
made two statements to police, one on the day of his arrest and one the next
day. The first interview was
video-taped, the second audio-taped. The
video tape and portions of the audio tape were played for the jury at
trial.
In the first interview, appellant
admitted his involvement in the Citibank, Rite Aid, Big Lots, Pollo Loco,
Burger King, Denny's and Farmer Boys robberies and attempted robberies. He said that he used a plastic gun at the
Citibank robbery and then bought a real gun.
He used the money from the robberies to buy drugs. He admitted discharging the gun at Farmer
Boys.
In the
second interview, Detective Veronica Conrado showed appellant photographs from
the Citibank, California Bear Credit Union, and Farmer Boys incidents. Appellant acknowledged that he was the person
shown in the photographs. Appellant
again acknowledged committing robberies or attempted robberies at Citibank,
California Bear Credit Union, Burger King, Farmer Boys, Pollo Loco, Denny's and
Rite Aid. Appellant was shown a
photograph from Chase bank, but he denied attempting to commit a robbery there.
At trial,
appellant testified on his own behalf and denied committing any of the
attempted robberies or robberies. He
denied that he was the person in the surveillance photos and videos. Appellant explained that he had a drug
problem, but he had plenty of money to buy drugs when he got out of
prison. At that time, he had $20,000 available
to him. He falsely confessed to the
robberies because the arresting officer agreed to let him have a hit of crack
cocaine. He knew the facts of the
robberies because he was left alone in an interview room with police reports
about the robberies and he read those reports.
Appellant
also called Timothy Williams as an expert on police procedures. Williams criticized Officer Rodriguez for
using various tactics during appellant's arrest and also for leaving appellant
alone with the police reports.
Discussion
1. Attorney fees
Appellant
contends that the trial court failed to comply with the notice and hearing
requirements of section 987.8 governing payment of the costs of the public
defender or court-appointed counsel. He
further contends that there is no evidence that he had the present ability to
pay these costs and no evidence of the actual amount of the legal fees incurred
by the County for appellant's court-appointed attorney. Respondent contends that appellant has
forfeited these claims by failing to object in the trial court.
We agree
that appellant has forfeited his claims concerning lack of notice and the form
of the hearing. (People v.
1394-1396.)
Appellant's
other claims are not forfeited.
"Where, as here, the defendant's objections to the fee order go to
the sufficiency of the evidence to support the order, no objection need be made
in the trial court. [Citation.] Thus, defendant did not waive his right to
object to the lack of any finding concerning his ability to pay." (People
v. Verduzco (2012) 210 Cal.App.4th 1406, 1421.)
a. Sufficiency of the evidence – ability to pay
The court
made the following finding on appellant's ability to pay: "Mr. Brown, I'm going to also – I am
very impressed by the fact that the last time you were in prison, you managed
to earn $12,000 presumably doing legal work for your colleagues." The court ordered appellant to pay $10,000 in
attorney's fees.
The amount
of attorney's fees that a defendant may be ordered to pay is limited to the
amount the defendant has the financial ability to pay in the six months
following the hearing on this issue. (
Cal.App.4th 1186, 1217-1218 [reversing order that defendant pay attorney's fees
on ground that there was no evidence that she would be able to pay the amount
ordered over the six months following the hearing]; see § 987.8, subd.
(g)(2)(B).)
Appellant
acknowledges that there is evidence that he earned $12,000 while in prison
doing legal work for other prisoners, but points out that he was in prison for
four years. He contends that there is no
evidence to show that he was capable of earning $12,000 in a six month
period. We agree.
The only breakdown of appellant's
income in prison is found in a statement from appellant's prison account
covering a four month period just prior to his release from prison. That statement shows three deposits in four
months: $400 in December, $500 in
January and $1,000 in February. Thus he
earned $1,900 in four months, an average of $475 per month. At that rate, appellant would earn $2,850 in
a six month period. That is nowhere
close to the $10,000 ordered by the court.
Respondent
points out that appellant testified during trial that he had about $20,000
got out of prison on an earlier offence and suggests that this money could be
considered in determining appellant's ability to pay attorney's fees. The trial court did not rely on this
money. We cannot do so either. Appellant testified that he had the money in
May 2009, when he was released from prison. The sentencing hearing in this case was held
in May 2011. There is no basis to infer
that appellant still had all the money from prison two years later.
b. Sufficiency of the evidence - attorney's fees
The trial
court made the following finding concerning the amount of the attorney's fee
award: "I am going to find, based
on the complexity of this case, the fact that Mr. Atherton did both the trial,
which he had to pick up at the last minute, and a preliminary hearing and had
to prepare in a very truncated fashion, that the appropriate attorney's fees
are $10,000, and I'm imposing those."
"Penal
Code section 987.8 . . . does not give the court any discretion to determine
the reasonable value of those services.
[Citation.] The court must review
evidence of the actual costs to the county before it can assess costs or
attorney's fees to the defendant.
[Citation.]" (
Cal.App.3d 803, 810-811; see also People
v. Viray, supra, 134
Cal.App.4th at p. 1217 [there must be evidence of number of hours and cost to
county of those hours].)
name="_ftnref5" title="">[5]
Here, there was no evidence at all
of the hours worked by defense counsel, or the cost to the county of those
hours. The court simply determined what
it believed to be the reasonable value of counsel's services. The court's valuation is not evidence and is
not sufficient to support the amount of the award.
c. Remedy
The order
concerning attorney's fees is vacated.
The matter is remanded to the trial court for further proceedings. (People
v. Flores (2003) 30 Cal.4th 1059, 1068.)
2. Motion to strike prior convictions
The trial
court sentenced appellant to a determinate term of 145 years and an
indeterminate term of 278 years to life.
Appellant contends that the trial court abused its discretion in
refusing to strike two or more of his three prior strike convictions, so that
he could be sentenced to a lengthy determinate term, or an indeterminate term
with a lower minimum parole eligibility period.
Rulings on
motions to strike prior convictions are reviewed under the deferential abuse of
discretion standard. Under that
standard, an appellant who seeks reversal must demonstrate that the trial
court's decision was irrational or arbitrary.
It is not enough to show that reasonable people might disagree about
whether to strike one or more of his prior convictions. Where the record demonstrates that the trial
court balanced the relevant facts and
reached an impartial decision in conformity with the spirit of the law, we
shall affirm the trial court's ruling. (
Cal.4th 367, 373.)
Here, the
trial court explained its ruling as follows:
"The crimes in this case were dangerous. [Appellant] is a dangerous, violent serial
criminal whose crimes have demonstrated an escalating level of
violence." The court added: "I'm also mindful that [appellant] had
been on parole for a series of similar but less violent crimes for only a few
weeks. And I think the significant thing
is that he had been advised that future criminal conduct would lead to a life
sentence at the time of the commission of these offenses. And I would decline to exercise my discretion
to strike the strike allegation."
In
detailing the increasing violence of appellant's crimes, the court pointed out
that in appellant's past robberies he had been unarmed. In the current series of robberies, appellant
started out unarmed, then carried a toy gun, then brandished a real gun and
then began discharging the gun. The
court also pointed out that appellant had no insight into his conduct and did
not accept responsibility for it.
Further, although appellant was previously advised that he faced a
lengthy prison term if convicted again, this prospect did not deter him from
committing the current offenses.
Appellant
contends that the trial court failed to consider his drug addiction and its
effect on his criminality. The trial
court explicitly acknowledged that appellant blamed his crimes on his drug
addiction. The court found, however,
that appellant had begun committing robberies before the date he claimed to
have started using cocaine.
name="_ftnref6" title="">[6] Appellant proffered no evidence that he had
ever sought treatment for his problem.
Drug addiction is not necessarily a mitigating factor when a criminal
defendant "seems unwilling to pursue treatment." (People
v. Martinez (1999) 71 Cal.App.4th 1502, 1511.)
The trial court's comments indicate
that it properly considered the nature and circumstances of appellant's current
and prior convictions and the particulars of his background, character and
prospects, and reached an impartial decision.
(People v. Williams (1998) 17
Cal.4th 148, 161-164.) Appellant's
past convictions were serious felonies and were committed recently. His current crimes were numerous, serious and
involved the use and discharge of a firearm.
They were committed only weeks after appellant was released from
prison. As the court's analysis shows,
appellant "is the kind of revolving-door career criminal for whom the
Three Strikes law was devised." (
Cal.App.4th 310, 320.) The trial court
acted well within its discretion in deciding that appellant did not fall
outside the spirit of the "Three Strikes" law.
To the extent that appellant
contends that the trial court was unaware that it had discretion to strike
appellant's prior convictions on all but one count, and to sentence him to 25
years to life on that count alone, we do not agree. We see nothing in the record to indicate that
the trial court lacked such awareness.
"The general rule is that a
trial court is presumed to have been aware of and followed the applicable
law." (People v. Mosley (1997) 53 Cal.App.4th 489, 496.) It has been more than a decade since the
California Supreme Court made it clear that a trial court has discretion to
strike prior convictions on a count-by-count basis. (See People
v. Garcia (1999) 20 Cal.4th 490.)
Appellant points to nothing in the
record to suggest that the court misunderstood its discretion. In the absence of such an affirmative
indication in the record that the trial court was unaware of its discretion to
strike, relief on appeal is not appropriate.
(People v. Fuhrman (1997) 16
Cal.4th 930, 945-947.)
3. Cruel and unusual punishment
Appellant contends that his
sentence of 278 years to life, plus a determinate term of 145 years,
constitutes cruel and unusual punishment in violation of the state and federal
Constitutions. Respondent contends that
appellant has forfeited this claim by failing to object in the trial
court. We agree that appellant has
forfeited this claim.
The issue of whether appellant's
sentence is cruel and unusual punishment is a fact intensive one, and is based
on the nature and facts of the crime and
offender. (See People
1190, 1196.) It is waived if not raised
in the trial court. (People
568, 583; People v. DeJesus
(1995) 38 Cal.App.4th 1, 27; see generally People v. Scott (1994) 9 Cal.4th 331, 356.)
Appellant contends that his claims
involve pure questions of law and so may be considered in the absence of an
objection. One aspect of his claim does
fall into this category and we will consider it.
Appellant contends that no person
could serve a sentence of 278 years to life and that such an impossible
sentence is unconstitutional. Appellant
relies on Justice Mosk's concurring opinion in People v.
his contention.
We respectfully disagree with that
opinion. A sentence which exceeds any
human's life span is not by its nature cruel and unusual punishment. Such a sentence is essentially a sentence of
life without the possibility of parole.
Life without the possibility of parole is a long recognized sentence in
California. It may or may not constitute
cruel and unusual punishment under the facts of a case.
To the extent that appellant
contends that a life sentence with no realistic possibility of parole is always
cruel and unusual punishment for any crime less than murder, we do not
agree. It may or may not constitute
cruel and unusual punishment under the facts of a case and cannot be resolved
as a matter of law. (See, e.g., Lockyer v.
years to life Three Strikes sentence for two counts of petty theft with a prior
theft-related conviction did not contradict or unreasonably apply clearly
established federal law and thus was not the "extraordinary" case
under the "gross disportionality" principle which violates the Eighth
Amendment]; In re Lynch (1972) 8
Cal.3d 410, 425-427 [disportionality test under California law requires
consideration of nature of offense and offender and comparison of challenged
punishment with punishment for more serious crimes in California and same
offense in other jurisdictions].)
4.
Abstract of judgment
Appellant contends that the minute
order and abstract of judgment do not accurately reflect the trial court's oral
pronouncement of judgment and must be corrected. Respondent agrees that the
abstract of judgment must be corrected, but contends that the minute order does
not require correction. We agree with
respondent.
The trial court imposed a 25 year
to life sentence for count 1 and a 25 year to life sentence for count 2. The trial court stated: "Count 1 is consecutive to all other
terms. Count 2 is concurrent to all
other terms." The minute order for
the sentencing hearing states:
"Term imposed in Count 1 to run concurrently with term imposed in
Count 2, and to run consecutively to all other counts." The abstract of judgment shows that count 1
is ordered to run concurrently with all other terms and count 2 is ordered to
run consecutively with all other terms.
The
abstract of judgment is clearly wrong and must be corrected to reflect the
trial court's oral pronouncement of sentence.
The minute order, however, is simply a clearer statement of the trial
court's oral pronouncement. The trial
court stated that "And based on these factors, as to counts 1 and 2, I am
going to sentence concurrently."
After stating that it was imposing a sentence of 25 years to life on
count 1, the court stated: "I'm
going to run that concurrent to count 2 for all the reasons I stated
earlier." The trial court clearly
intended count 1 to run consecutively to all counts other than count 2.
Disposition
The order directing appellant to pay attorney's fees is
reversed and the matter is remanded for a hearing on attorney's fees, as set
forth in more detail in the opinion. The
abstract of judgment is ordered corrected to show that counts 1 and 2 are
concurrent to each other, count 1 is consecutive to all counts except count 2
and count 2 is concurrent to all other counts.
The judgment is affirmed in all other respects.
ARMSTRONG,
J.
We concur:
TURNER,
P. J.
KRIEGLER,
J.
to the Penal Code unless otherwise indicated.
than appellant as the robber.
