People v. Small CA2/6 ( 2021 )

Filed 9/13/21 P. v. Small CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B306178
(Super. Ct. Nos. 19F-04294,
Plaintiff and Respondent, 18F-00391)
(San Luis Obispo County)
v.
FREDRIC BYRON SMALL,
Defendant and Appellant.
Fredric Byron Small appeals a judgment after his no
contest pleas to failing to file a change of address as a sex
offender, a felony (Pen. Code, § 290.013, subd. (a))1 and failing to
register upon release from incarceration (§ 290.015, subd. (a)).
He admitted he had two prior section 288, subdivision (b) felony
convictions. The trial court sentenced him to an aggregate prison
term of seven years four months. We conclude, among other
things, that 1) the trial court did not err by denying Small’s
1 All statutory references are to the Penal Code.
motions to withdraw his no contest pleas; and 2) Small’s sentence
did not constitute cruel or unusual punishment. We affirm.
FACTS
Small is a convicted sex offender who is required to
register. Sheriff Detective Spencer Garrett had the responsibility
of monitoring compliance by convicted sex offenders with their
registration and reporting responsibilities. Garrett learned that
Small had moved from his former residence but he had not filed a
new registration as required by law. On January 12, 2018,
Garrett arrested Small for not filing a change of address as a sex
offender. Small eventually pled no contest to the section 290.013,
subdivision (a) offense.
Small was serving time in jail in 2019. He was released
from jail on June 4, 2019.
At the time of his release, Small was provided a “CJIS
8047” form that provided notice to Small of a “sex offender
registration requirement” upon “release from the jail.” Small
signed that form on June 4 and acknowledged that “he had the
obligation to register.”
Small had “five working days” from the time of his release
to register. Garrett checked a “California statewide database” to
verify whether Small had registered.
On June 12, 2019, Garrett checked the database and
determined that Small violated the law because he had not
registered. Garrett requested “a Ramey warrant from the court
and it was granted.” Small was arrested.
On February 5, 2020, Small pled no contest to failing to
register upon release from incarceration. (§ 290.015, subd. (a).)
This was pursuant to a plea agreement with Small’s counsel in
the prior section 290.013 offense case (Mr. Osman) and his
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counsel in the current section 290.015 case (Mr. Greco). Small,
Osman, and Greco agreed that as part of the plea agreement
Small would be sentenced in both cases, and “the total term
between the two cases would be seven years four months.” The
trial court asked Small if he understood the plea agreement.
Small nodded his head.
In order to accept the plea agreement proposed by Small’s
counsel, the trial court would have to strike one of Small’s two
prior strike offenses. Small fell within the purview of the “Three
Strikes” law. The People objected to striking a prior for
sentencing.
The trial court responded, “I do recognize the People’s
argument that there are a number of factors about [Small’s]
background, character, and prospects that could arguably . . .
keep him squarely within the Three Strikes Law.” The court
said, “I believe [Small] knows he’s legally required to register, but
there were a number of factors that I suspect played into his
commission of the offense . . . .” These included his advanced age
of 83 “and the fact that he has suffered from both some physical
medical issues [and] perhaps some potential mental health issues
as well.” The court said, “So for these reasons, I am prepared to
indicate that I would strike the strike and go forward with the
plea that the parties are contemplating.”
The trial court asked Small if he was currently taking
medication for his health issues. Small said he was taking
medication “[f]or all of them.” The court asked one of his defense
counsel, “[Y]ou’re confident that [Small] can enter into this plea
this morning freely, voluntarily, knowingly, and intelligently?”
Counsel responded: “I am, Your Honor.”
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The trial court asked Small, “Do you understand and give
up your right to a jury trial?” Small: “No.” The proceedings
were paused so that Small could confer with his counsel. After a
break, Small’s counsel said Small is “ready to go forward with his
plea today.”
In response to the trial court’s questions, Small said he
agreed to give up his right to a jury trial, to present a defense, to
testify, and to call witnesses, and he understood that he would
receive a sentence of seven years four months. The court
accepted Small’s no contest plea and found he “freely, voluntarily,
knowingly, and intelligently waived [his] rights.”
On March 11, 2020, defense attorney Osman filed a motion
to “withdraw plea” and a request for appointment of counsel. In
his declaration he said, “I am informed by the defendant [Small]
that he wishes to withdraw his plea . . . due to insufficient
counsel . . . .”
At the hearing on April 6, 2020, Small told the trial court,
among other things, that his pleas should be set aside because of
“coercion” by his defense counsel; that he did not understand the
plea; and that due to mental health issues, he was not capable of
making a plea.
Greco, Small’s defense counsel, presented facts to dispute
these claims. He said, “[I]t’s my belief there’s not a legal basis for
the withdrawal of the plea.”
Judge Guerrero denied Small’s motion to withdraw his
pleas. He also scheduled a sentencing hearing before Judge
Duffy. Small had declined to give an “Arbuckle waiver.”
On April 20, 2020, the trial court called the case for
sentencing. Small indicated he wanted a continuance to obtain
different counsel. The prosecutor objected claiming the case had
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been continued for sentencing “several times” and Small was
engaging in “another stall tactic.” Small requested to withdraw
his pleas again. He repeated many of the claims he had made at
the prior hearing where the court had denied his request to
withdraw his pleas. The court again denied the request to
withdraw the pleas by stating, “[W]e are going forward with
sentencing today.”
Small told the trial court, “I’m having pains in my chest.”
He said he was asking “for medical assistance right now.” The
court ordered a recess.
At the April 22, 2020, sentencing hearing, the trial court
said that Small was not present because he “was refusing to be
taken from his cell”; that at the last hearing the court had taken
a recess because Small claimed he was having chest pains. Small
was transported to a hospital by ambulance, but when he arrived
at the hospital, “he refused treatment.” He was “medically
cleared” to return to his jail cell. The court said it knew he
claimed to have medical issues “but it appears that what occurred
on Monday may have been an attempt to delay proceedings.” The
court noted that when Small is in court, he is “disruptive of the
proceedings.”
Defense counsel Greco told the court, “I share, as an officer
of the court, concerns . . . about dilatory tactics on behalf of Mr.
Small.” The trial court sentenced Small to an aggregate state
prison term of seven years four months, the same sentence that
was agreed to in the negotiated plea agreement.
DISCUSSION
Denying the Motions to Withdraw Small’s No Contest Pleas
Small contends the trial court abused its discretion in
denying his motions to set aside the plea agreements.
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The People claim “no one made any relevant promises to
[Small]” and his health problems “did not overcome his free will
to plead no contest.”
The trial court is authorized to allow a defendant to
withdraw a plea before judgment is entered. (People v. Gari
(2011) 199 Cal.App.4th 510, 521.) A defendant must show good
cause to set aside a plea. Good cause for a motion to vacate a
plea “ ‘must be shown by clear and convincing evidence.’ ” (People
v. Hunt (1985) 174 Cal.App.3d 95, 103.) “Grant or denial of a
motion lies within the trial court’s sound discretion . . . .” (Ibid.)
“Guilty pleas resulting from a bargain should not be set aside
lightly . . . .” (Ibid.) Consequently, an appellant must meet a
strong burden to establish a trial court’s abuse of discretion in
deciding not to set aside the plea. (Ibid.)
Small sought to vacate his no contest pleas on the grounds
of health, that his counsel coerced him, and that he did not
understand the consequences of his pleas.
At the April 6, 2020, hearing, Small said, among other
things, “I have a bipolar condition, I spent eight years at
[Atascadero State Hospital], and there’s psychiatric
documentation of it, and it switches on and off. So when I talk to
the attorneys and they said just plead guilty, plead guilty. I said,
‘I want a trial because I’m innocent.’ I’m innocent in the first
case, the second case, the third case. So it was coercion on the
part of the attorneys and . . . I feel that I didn’t understand it and
I wasn’t capable of making a true-true plea.”
Small’s counsel told the trial court he reviewed the records
and “a neuropsychological assessment that was conducted on
December 17, 2019.” He said, “I have to represent to the court
there’s not a basis, a legal basis for a withdrawal of plea.” He
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said that Small made “knowing, voluntary, intelligent waivers.
He said, “[Small] understood when we had conversations of the
legal ramifications, gave clear instructions to me and the public
defender, and when we entered our pleas in the last case, some of
the ideas came from him personally. So his statements made in
court today belie the record . . . .”
Here there was a conflict between what Small claimed and
what his attorney stated. Small has not shown why the trial
court could not reasonably resolve the conflicting claims against
him. The trial court exclusively decides the credibility of the
parties before it. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
We do not decide credibility issues. (Ibid.)
Moreover, the trial court made negative credibility findings
about how Small had been using claims about his health
conditions to manipulate various court proceedings. At the April
22, 2020, hearing, the court noted that at a prior hearing Small
said that “he was suffering from a serious medical condition that
required the proceeding to be recessed.” An ambulance
transported him to the hospital, but he refused medical
treatment and was “medically cleared to return back to the jail.”
At the April 22nd sentencing hearing, he had the option to
appear in court or “to appear via video remote at the jail.” But he
refused “to be removed from his cell.” The court found that “when
he is present in court,” he is “disruptive of the proceedings.” The
court recognized his health claims, but it believed he was using
them in “an attempt to delay proceedings.”
In addition, the record shows that Small knowingly waived
his rights before he entered his no contest pleas. At the February
5, 2020, plea hearing, the court asked Small, “Do you understand
and give up your right to a jury trial?” Small: “Yes.” The court
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asked Small if he was willing to give up his “right to present [his]
own defense, testify on [his] own behalf,” and subpoena his
witnesses. Small answered in the affirmative. The court asked
Small if he understood that as a result of his plea he would
receive an aggregate sentence of seven years four months. Small
answered “Yes.” The court asked, “Have any threats been made
to you or anyone close to you in order to get you to enter into this
plea and admissions?” Small: “No.” “Have you had enough time
to talk about your cases with Mr. Osman and Mr. Greco [defense
counsel]?” Small: “Too much time.” His counsel agreed that
there was a factual basis for the plea.
After his no contest plea, the trial court found: 1) Small
“voluntarily, knowingly, and intelligently waived [his] rights”; 2)
he understood the “nature of the charges”; 3) he understood the
“possible consequences” of his plea and admissions; and 4) there
was a factual basis for his plea and admissions. Small has not
shown that the court abused its discretion by denying his motions
to vacate his pleas.
The Sentence
Small contends his sentence is unconstitutionally cruel or
unusual. He claims that a seven year four month sentence for an
83-year-old defendant for failure to register offenses is
constitutionally infirm. He argues that it is “in effect a life
sentence.”
The People claim Small is not entitled to raise this claim
for the first time on appeal because he forfeited it at sentencing.
“A claim that a sentence is cruel or unusual requires a ‘fact
specific’ inquiry and is forfeited if not raised below.” (People v.
Baker (2018) 20 Cal.App.5th 711, 720, italics added.)
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At sentencing, Small’s counsel did not raise a cruel or
unusual punishment claim. Counsel did mention Small’s age.
But that was only in reference to his financial ability to pay fines.
Consequently, there is merit to the People’s position on forfeiture.
But even on the merits of this claim, Small has not shown cruel
or unusual punishment.
“The punishment provided by law may . . . run afoul of the
constitutional prohibition against cruel or unusual punishment in
article 1, section 17, of the California Constitution.” (People v.
Mora (1995) 39 Cal.App.4th 607, 615.) The court may consider
facts about the offender in making its determination on this
constitutional issue, including the defendant’s age, prior
criminality, personal characteristics, his or her state of mind, etc.
(People v. Dillon (1983) 34 Cal.3d 441, 479.) But successful
challenges based on claims that the sentence is so grossly
disproportional that it “shocks the conscience” are rare. (People
v. Reyes (2016) 246 Cal.App.4th 62, 86.)
A 25-years-to-life sentence may be unconstitutional for sex
offender defendants who have provided law enforcement with
accurate information to meet their reporting responsibilities,
have acted in good faith, but, because of a mere “negligent
oversight,” did not comply with a requirement. (In re Coley
(2012) 55 Cal.4th 524, 551.) Here, by contrast, the trial court did
not find an innocent omission on Small’s part. The court said,
“[Small] knows he’s legally required to register.” The People
note, “[Small] repeatedly flouted the registration requirement.
Even when he was out on bail for failing to register, he again
failed to register.”
Small has not made a sufficient factual showing to identify
the various facts that support a claim of an unconstitutional
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sentence. Advanced age with health conditions does not
automatically and categorically immunize that group from
punishment for crimes. If it did, it would have the impact of
encouraging a certain demographic to commit crimes with
impunity. This would undermine the integrity of the criminal
justice process.
Small is a recidivist with two prior serious felony
convictions. The probation report reflects that he has a
significant prior criminal record extending back from the 1950’s,
1960’s, 1970’s, 1980’s, 1990’s, and 2009, and that there are no
factors in mitigation. Moreover, Small has not shown how a
sentence he agreed to in his plea agreement is an
unconstitutional sentence.
Small notes the trial court considered his health issues in
striking a prior strike. But the court later discovered that Small
was using health claims to manipulate court proceedings and
improperly delay them. The court could reasonably infer his
health claims were substantially impeached by this conduct.
Moreover, Small’s claim that he is subject to a life sentence
is not accurate. As the People note, the trial court imposed a
seven year four month sentence. But it then gave him
presentence credits for 1,645 days. The People have calculated
that Small “is eligible for parole this December.” Small has not
shown that he received an unconstitutional sentence.
We have reviewed Small’s additional contentions and we
conclude he has not shown grounds for reversal.
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DISPOSITION
The orders and judgment are affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
TANGEMAN, J.
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Jacquelyn H. Duffy, Judge
Superior Court County of San Luis Obispo
______________________________
Will Tomlinson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr., and Michael Katz,
Deputy Attorneys General, for Plaintiff and Respondent.
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