People v. Talley CA2/7 ( 2021 )

Filed 12/15/21 P. v. Talley CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B304017
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA065271)
v.
CLINTON JOHN TALLEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Shannon Knight, Judge. Affirmed.
William L. Heyman, 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, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, and David F. Glassman, Deputy
Attorney General, for Plaintiff and Respondent.
______________________
In a prior appeal we affirmed Clinton John Talley’s felony
convictions for making a criminal threat and stalking and several
misdemeanor convictions, reversed 16 other misdemeanor
convictions as time-barred and remanded for resentencing. In
this appeal following his resentencing, Talley contends the trial
court abused its discretion in denying his request to dismiss a
five-year prior serious felony conviction enhancement; his
aggregate sentence of almost 20 years—11 years in state prison
plus nearly nine years in county jail—constitutes cruel and/or
unusual punishment in violation of the federal and state
Constitutions; and the court’s imposition of fines, fees and
assessments over his objection he lacked the ability to pay them
violated due process. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Talley’s Convictions and His Prior Appeal
A jury convicted Talley of two felony counts, making a
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criminal threat (Pen. Code, § 422) and stalking (§ 646.9,
subd. (a)), and 25 misdemeanor counts of violating a protective
order (§ 166, subd. (c)(1)). In a bifurcated proceeding Talley
waived his right to a jury trial and admitted special allegations
he had suffered a prior serious or violent felony conviction under
the three strikes law (§§ 667, subds. (b)-(j), 1170.12) and a prior
serious felony conviction within the meaning of section 667,
subdivision (a)(1). The court sentenced Talley to an aggregate
state prison term of 11 years for making a criminal threat plus
1
Statutory references are to this code unless otherwise
stated.
2
5,460 consecutive days in county jail for the misdemeanor
2
counts.
On appeal we affirmed Talley’s felony convictions and nine
misdemeanor convictions and reversed 16 misdemeanor
convictions as time-barred. (See People v. Talley (Aug. 20, 2019,
B281571) [nonpub. opn.].) We remanded for resentencing so the
trial court could exercise the full scope of its sentencing
discretion, including considering whether to strike the
section 667, subdivision (a)(1), enhancement pursuant to then-
recent amendments to sections 667 and 1385 that became
effective while Talley’s initial appeal was pending. (See Stats.
2018, ch. 1013, §§ 1, 2; People v. Stamps (2020) 9 Cal.5th 685,
693.) We also directed the trial court to hold a hearing, if Talley
requested one, to address Talley’s arguments concerning his
ability to pay any applicable fines, fees and assessments.
2. Talley’s Resentencing Hearing
At resentencing the court declined Talley’s request to strike
the section 667, subdivision (a)(1), enhancement, concluding it
was not in furtherance of justice to do so. The court sentenced
Talley to 11 years in state prison—the upper term of three years,
2
At the initial sentencing hearing the court imposed the
upper term of three years for making a criminal threat (count 1),
doubled under the three strikes law, plus five years for the prior
serious felony conviction under section 667, subdivision (a). The
court stayed sentence on the stalking count under section 654.
The court also imposed 364 days in county jail on each of
misdemeanor counts 2 through 16 to be served consecutively to
count 1 and to each other (for an aggregate consecutive term of
5,460 days on those misdemeanor counts) and 364 days each on
misdemeanor counts 17 through 26, to be served concurrently
with the criminal threat count.
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doubled under the three strikes law, plus five years for the prior
serious felony conviction under section 667, subdivision (a)(1)—
plus 3,276 consecutive days in county jail (364 days for each
misdemeanor offense to be served consecutively to the felony
count and to each other). The court stayed sentence on the
stalking offense pursuant to section 654.
In refusing Talley’s request to strike the section 667,
subdivision (a)(1), enhancement and exercising its discretion to
impose the misdemeanor counts consecutive to each other and to
the felony count of making a criminal threat, the court stated,
“The defendant’s prior convictions are numerous. His prior
performance on probation has been unsatisfactory. The court has
grave concerns for the victim in this case. The court believes that
there is an excellent chance that, upon his release, Mr. Talley
will make efforts to locate her to harm or even potentially kill
her. So it is the court’s intention to have Mr. Talley remain in
custody for the longest possible available time.”
The court next addressed Talley’s ability to pay fines, fees
and assessments in accordance with this court’s decisions in
People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) and People
v. Castellano (2019) 33 Cal.App.5th 485 (Castellano). Initially
the court stated it intended to impose fines, fees and assessments
in the same amounts as at the original sentencing hearing.
Talley’s counsel objected, claiming his client was unable to pay
them. Talley’s counsel asserted his client was indigent and
unable to work and earn prison wages because he was legally
blind and suffered from a heart problem. He presented no
evidence to support these arguments or his general assertion
concerning Talley’s inability to pay. After asking about Talley’s
ownership of a motorcycle, which was discussed at trial, and
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being told by Tally’s counsel simply that Talley did not have any
money, the court responded, “I’m not inclined to waive all of it.
I’m not inclined to make a finding at this time of inability to pay
anything. However, I will reduce the amount of the victim
restitution fund fine. [Pen. Code, § 1202.4, subd. (b).] It will be
in the amount of $300, rather than $1,200,” the amount the court
had ordered at the initial sentencing hearing. The court imposed,
but stayed, a parole revocation fine in the same amount. (Pen.
Code, § 1202.45.) In addition, the court reduced the assessment
amounts imposed at the initial sentencing hearing: It imposed
an operations assessment (Pen. Code, § 1465.8) of $440, reduced
from $1,040, and a court facilities assessment (Gov. Code,
§ 70373) of $330, reduced from $780. Talley’s counsel told the
court again, “My client still cannot pay any of those fees. This
will be a burden on him when he gets out of custody.” The court
acknowledged Talley’s objection, but declined to change its
ruling.
DISCUSSION
1. The Court Did Not Abuse Its Discretion in Denying
Talley’s Request To Dismiss the Five-year Prior Serious
Felony Enhancement; Talley Has Not Demonstrated
Ineffective Assistance of Counsel
The trial court may in its discretion dismiss a prior serious
felony enhancement found true under section 667,
subdivision (a)(1), in furtherance of justice. (§§ 667, subd. (f)(2);
1385, subd. (b)(1); People v. Stamps, supra, 9 Cal.5th at p. 693.)
In making this determination, the trial court considers “‘the
nature of the offense and the offender.’” (People v. Brugman
(2021) 62 Cal.App.5th 608, 638; accord, People v. Shaw (2020)
56 Cal.App.5th 582, 587 [“[s]ection 1385 allows courts to ensure
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‘that persons are sentenced based on the particular facts of the
offense and all the circumstances[;] [i]t enables the punishment
to fit the crime as well as the perpetrator’”]; cf. People v. Carmony
(2004) 33 Cal.4th 367, 378 [court considers all the circumstances
relating to the offense and the offender in deciding whether to
dismiss in furtherance of justice a strike found true under the
three strikes law].)
We review the court’s decision to deny a motion to strike a
five-year prior serious felony enhancement for abuse of
discretion. (People v. Brugman, supra, 62 Cal.App.5th at p. 638;
People v. Shaw, supra, 56 Cal.App.5th at p. 587.) “[A] trial court
does not abuse its discretion unless its decision is so irrational or
arbitrary that no reasonable person could disagree with it.”
(People v. Carmony, supra, 33 Cal.4th at p. 377; see id. at
pp. 376-377 [absent a showing the sentencing decision was
irrational or arbitrary, “‘“the trial court is presumed to have
acted to achieve legitimate sentencing objectives, and its
discretionary determination to impose a particular sentence will
not be set aside on review”’”].)
Talley contends the court did not address a number of
relevant factors in exercising its sentencing discretion, primarily
because his attorney did not present them, and argues his
counsel’s omissions constituted ineffective assistance of counsel.
In particular, he asserts his counsel failed to argue, and thus the
trial court did not consider, (a) he had committed his offenses
while incarcerated and unlikely to carry out his threat to harm
the victim; (b) imposition of the high term of three years, doubled
under the three strikes law, adequately punished and enhanced
his sentence without the additional five-year prior serious felony
enhancement; (c) he suffered from mental and emotional
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problems at the time he committed the offenses but was now
benefitting from psychotropic medication; (d) he would be more
than 50 years old at the time of his release even if the five-year
enhancement were dismissed and studies show criminality
declines significantly after age 50; (e) it was highly unlikely that
Talley would risk a third strike sentence of 25 years to life by
contacting the victim again, as Talley himself advised the court
during the sentencing hearing; and (f) California was moving
away from draconian sentencing schemes. Had his counsel made
these arguments, he asserts, it is reasonably probable the court
would have exercised its discretion more favorably toward Talley
and dismissed the five-year serious felony enhancement.
Contrary to Talley’s contention, the court, which presided
over Talley’s trial and original sentencing hearing, did consider
Talley’s criminal record, the nature of the offenses for which he
was convicted, and information presented by Talley’s counsel that
his client was currently benefitting from psychotropic medication.
In response, the court highlighted that Talley had committed his
offenses while incarcerated for a similar crime against the same
victim (making a criminal threat) and observed incarceration had
not deterred his conduct. Considering all this evidence, the court,
well acquainted with the facts of the case and Talley’s
background, concluded it would not be in furtherance of justice to
dismiss the prior serious felony enhancement and that imposition
of the longest possible authorized sentence was warranted.
Nothing in this record suggests that decision was arbitrary or
irrational, let alone that Talley would have received a more
favorable sentence had his counsel made any of the additional
arguments Talley now articulates. (See People v. Rices (2017)
4 Cal.5th 49, 80 [to prevail on an ineffective assistance of counsel
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claim, the appellant bears the burden of demonstrating counsel’s
performance fell below an objective standard of reasonableness
and counsel’s deficiencies resulted in prejudice; prejudice is
established by showing that, but for counsel’s unprofessional
errors, it is reasonably probable that the result of the proceeding
would have been more favorable to the defendant]; see also
Strickland v. Washington (1984) 466 U.S. 668, 696;
In re Champion (2014) 58 Cal.4th 965, 1007 [“‘[i]f it is easier to
dispose of an ineffective[ ] [assistance of counsel] claim on the
ground of lack of sufficient prejudice, which we expect will often
be so, that course should be followed’”].)
2. Talley’s Sentence Did Not Constitute Cruel and/or
Unusual Punishment in Violation of the Federal or
California Constitutions
The Eighth Amendment’s prohibition of cruel and unusual
punishment, applicable to the states through the
14th Amendment, contains a “‘narrow proportionality principle’
that ‘applies to noncapital cases.’” (Ewing v. California (2003)
538 U.S. 11, 20 (Ewing).) Although strict proportionality
between crime and sentence is not required, “‘extreme sentences
that are “grossly disproportionate” to the crime’” are
constitutionally prohibited. (Id. at p. 23; accord, Graham v.
Florida (2010) 560 U.S. 48, 59.)
To determine whether a particular sentence is so grossly
disproportionate that it violates the federal Constitution, the
court considers all the circumstances of the case, including the
gravity of the offense and the severity of the penalty, as well as
whether more serious crimes are subject to the same penalty in
other jurisdictions. (Graham v. Florida, supra, 560 U.S. at p. 58;
Solem v. Helm (1983) 463 U.S. 277, 285.) No single criterion is
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dispositive. (Solem, at p. 290, fn. 17.) Outside “‘the context of
capital punishment, successful challenges to the proportionality
of particular sentences [will be] exceedingly rare.’” (Id. at
pp. 289-290, quoting Rummel v. Estelle (1980) 445 U.S. 263, 271.)
Still, although deference is given to the Legislature’s prescribed
sentence for a particular crime (Solem, at p. 290), no penalty is
per se constitutional. (Ibid.)
The California Constitution’s prohibition of “cruel or
unusual punishment” (Cal. Const., art. I, § 17) similarly forbids
punishment so disproportionate to the crime for which it was
imposed that it “shocks the conscience and offends fundamental
notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424;
accord, People v. Cole (2004) 33 Cal.4th 1158, 1235; People v.
Gomez (2018) 30 Cal.App.5th 493, 500.) The Lynch Court
identified three factors for the reviewing court to consider in
assessing this constitutional claim: (1) the nature of the offense
and the offender; (2) how the punishment compares with
punishments for more serious crimes in the jurisdiction; and
(3) how the punishment compares with the punishment for the
same offense in other jurisdictions. (Lynch, at pp. 425-427;
see People v. Brewer (2021) 65 Cal.App.5th 199, 213-214.)
A claim that a particular sentence amounts to cruel and/or
unusual punishment in violation of either the federal or
California Constitution is a question of law subject to de novo
review, while any underlying disputed facts are reviewed in the
light most favorable to the judgment. (People v. Gomez, supra,
30 Cal.App.5th at p. 499; People v. Martinez (1999)
76 Cal.App.4th 489, 496.)
Talley contends his aggregate state prison sentence of
11 years, plus effectively nine years in county jail, is so grossly
9
disproportionate to his crimes that it constitutes cruel and
unusual punishment in violation of the Eighth Amendment to the
United States Constitution and cruel or unusual punishment in
violation of the California Constitution. As Talley describes it, he
made ambiguous statements in letters he sent to his former
girlfriend that the jury wrongly interpreted as a criminal threat;
as an incarcerated person at the time he committed the offense,
he was unable of carrying out the threat in any event; his crimes
did not involve a weapon and no one was physically hurt; the
“extensive” criminal background the court cited at sentencing
involved mostly misdemeanor offenses; and the letters he wrote
to his girlfriend that the jury found violated the protective order
were not particularly threatening. If they had been, he asserts,
they would undoubtedly have been charged under section 422
(making a criminal threat). To impose consecutive sentences for
each misdemeanor violation—essentially for letters and
telephone calls to his former girlfriend while he was in prison—
3
and run each violation consecutive to each other and to an
11-year enhanced sentence for a nonviolent felony, he asserts,
resulted in an aggregate sentence so grossly disproportionate to
his crimes as to be unconstitutional.
Tally’s arguments in support of the constitutional challenge
to his sentence are unpersuasive. Despite Talley’s efforts to
minimize his conduct, Talley was convicted for both making a
3
As Talley implicitly acknowledges, the court was
authorized to impose full consecutive sentences in county jail for
each misdemeanor offense; a misdemeanor sentence is distinctly
different from a felony sentence. (See People v. Brown (2016)
247 Cal.App.4th 1430, 1434; People v. Erdelen (1996)
46 Cal.App.4th 86, 91-92.)
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criminal threat to kill his former girlfriend and stalking her, as
well as for numerous violations of a protective order his former
girlfriend had obtained. We affirmed those convictions on appeal,
rejecting Talley’s arguments, several of which he repeats here,
that they were not supported by substantial evidence. (See
People v. Talley, supra, B281571.) As for his criminal
background, in contending his past offenses were mostly
misdemeanors, Talley essentially ignores his 2014 conviction for
a serious felony, making a criminal threat against the same
victim in this case, his most recent prior conviction. And,
although Talley insists his punishment is unfair for a “wobbler”
felony, Talley’s enhanced felony sentence punished him not
simply for that felony, but also for his recidivism. (Ewing v.
California, supra, 538 U.S. at pp. 20-21; People v. Haller (2009)
174 Cal.App.4th 1080, 1089.) Talley has acknowledged he has a
heavy burden to demonstrate his sentence constitutes cruel
and/or unusual punishment in violation of the federal and state
4
Constitutions. He has not come close to carrying it.
4
Talley’s counsel did not object at the sentencing hearing
that his sentence constituted cruel and/or unusual punishment.
(See People v. Speight (2014) 227 Cal.App.4th 1229, 1247
[defendant who failed to object in trial court that his sentence
constituted cruel and unusual punishment forfeited argument on
appeal]; People v. Norman (2003) 109 Cal.App.4th 221, 229
[same].) Because Talley’s claim his sentence was cruel and/or
unusual fails on its merits, so too does his claim his counsel was
ineffective for failing to object on this ground. (See People v.
Anderson (2001) 25 Cal.4th 543, 587 [counsel not ineffective for
failing to make futile or unmeritorious objections]; People v.
Memro (1995) 11 Cal.4th 786, 834 [same].)
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3. Talley Failed To Demonstrate Imposition of Fines, Fees
and Assessments at Sentencing Violated Due Process or
That His Counsel Was Constitutionally Ineffective
In Dueñas, supra, 30 Cal.App.5th 1157 we held “the
assessment provisions of Government Code section 70373 and
Penal Code section 1465.8, if imposed without a determination
that the defendant is able to pay, . . . are thus fundamentally
unfair; imposing these assessments upon indigent defendants
without a determination that they have the present ability to pay
violates due process under both the United States Constitution
and the California Constitution.” (Dueñas, at p. 1168; accord,
People v. Belloso (2019) 42 Cal.App.5th 647, 654-655, review
granted, Mar. 11, 2020, S259755.) A restitution fine under
section 1202.4, subdivision (b), however, is “intended to be, and is
recognized as, additional punishment for a crime.” (Dueñas, at
p. 1169; accord, Belloso, at p. 655.) Section 1202.4,
subdivision (c), provides a defendant’s inability to pay a
restitution fine may not be considered a “compelling and
extraordinary reason” not to impose the statutory minimum fine.
To avoid a serious constitutional question if a restitution fine
were to be imposed on an indigent defendant, this court held in
Dueñas that “the court must stay the execution of the fine until
and unless the People demonstrate that the defendant has the
ability to pay the fine.” (Dueñas, at p. 1172; accord, Belloso, at
p. 655.)
In Castellano, supra, 33 Cal.App.5th 485, decided
two months after Dueñas, we clarified that, in the absence of
evidence of the defendant’s inability to pay, the People are not
required to establish the defendant has the means to pay before
the court imposes the fines, fees and assessments required by
statute. (Castellano, at p. 490 [“a defendant must in the first
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instance contest in the trial court his or her ability to pay the
fines, fees and assessments to be imposed and at a hearing
present evidence of his or her inability to pay the amounts
contemplated by the trial court”]; see People v. Santos (2019)
38 Cal.App.5th 923, 934 [“it is the defendant’s burden to
demonstrate an inability to pay, not the prosecution’s burden to
5
show the defendant can pay”].)
Talley argues it violated due process for the court to impose
any fines, fees or assessments on him, an indigent person. As
discussed, however, it was Talley’s burden to present evidence of
his inability to pay the fines, fees and assessments. He failed to
present any. Recognizing this evidentiary omission, Talley
contends his counsel’s failure to present any evidence on this
point constituted ineffective assistance. However, on this silent
record, it impossible to tell what, if any, evidence counsel could
have presented, let alone whether it would have made any
difference. For that reason alone, Talley’s ineffective assistance
of counsel claim necessarily fails. (See People v. Salcido (2008)
44 Cal.4th 93, 172 [ineffective assistance of counsel will often
have to be shown by petition for habeas corpus where evidence
outside the record can be introduced]; People v. Cunningham
(2001) 25 Cal.4th 926, 1012, fn. 12 [same].)
5
In People v. Kopp (2019) 38 Cal.App.5th 47, review granted
November 13, 2019, S257844, the Supreme Court has directed
the parties to brief the following issues: “Must a court consider a
defendant’s ability to pay before imposing or executing fines, fees,
and assessments? If so, which party bears the burden of proof
regarding defendant’s inability to pay?”
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DISPOSITION
The judgment is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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