People v. Flowers ( 2022 )

Filed 7/26/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B312522
(Super. Ct. No. 20F-02462)
Plaintiff and Respondent, (San Luis Obispo County)
v.
RACE FARRELL FLOWERS,
Defendant and Appellant.
“Incredible leniency.” This is the Attorney General’s
description of the trial court’s ruling dismissing a “strike” and
sparing appellant from a 25 year to life “Three Strikes” sentence.
An objective reader might think that appellant would graciously
accept this judicial largesse. The reader would be wrong.
Appellant seeks to whittle down the sentence even further on
appeal. The short answer is, no. The long answer follows.
Appellant was convicted by jury of robbery (Pen. Code,1 §
211). He waived jury as to the charged enhancements and the
trial court, based upon certified records, found true the
allegations that he had two serious prior felony convictions (§
1 All further statutory references are to the Penal Code.
667, subd. (a)) and two “strike” convictions (§§ 667, subds. (d), (e);
1170.12, subds. (b), (c)).
The trial court sentenced appellant to 20 years in state
prison (the upper term of five years for the robbery conviction,
doubled for a strike (§ 667), and five years each for the two
serious prior felony convictions (§ 667, subd. (a)). It ordered
appellant to pay a court operations assessment of $30, a court
facilities assessment of $40, and a $5,000 restitution fine.
Appellant contends the trial court erred in imposing the
upper term pursuant to section 1170 as it existed at the time,
there should be a reversal and remand for resentencing because
of recent legislative changes, and the trial court erred in
imposing fines and fees without determining ability to pay.
Facts
In November 2019, appellant’s codefendant, Alford, entered
a check cashing store and pointed a gun at the manager. He told
her to go to the safe. He bound her face, legs, and wrists with
duct tape. He warned her not to “look up or go out [of the room]”
or “somebody will get mad.” The manager saw Alford take money
from the front register, later determined to be $2,122. When
Alford left, the manager was able to call the police.
In a photo show-up, the manager recognized appellant as a
previous customer. Another witness identified appellant in a
photo show-up as one of two people she saw walking toward the
check cashing store at the time of the robbery.
Cellphone records showed appellant’s phone was in the
vicinity of the check cashing store at the time of the robbery.
There were also several calls and communications between
Alford’s and appellant’s cellphones before, during, and after the
robbery. Appellant’s phone records showed internet searches
2
before the robbery for the phone number of the check cashing
store, and after the robbery regarding its commission.
Sentencing
The probation report, which the sentencing court was
required to consider (§ 1203, subd. (b)(3)), included a summary of
appellant’s prior record. He had 16 felony and misdemeanor
convictions between 1994 and 2019. The report listed five factors
in aggravation: (1) the manner in which the crime was carried
out indicates planning, sophistication, or professionalism, (2)
engagement in violent conduct which indicates a serious danger
to society, (3) prior convictions as an adult or sustained petitions
in juvenile delinquency proceedings are numerous or of
increasing seriousness, (4) prior prison terms, and (5) prior
performance on probation or parole was unsatisfactory. The
probation report listed no factors in mitigation.
After striking one of appellant’s strike priors, the trial court
selected the upper term of five years for the robbery conviction,
and explained, “I selected the upper term because of your long
and significant criminal history, and because of the numerous
factors in aggravation.” As indicated, appellant was sentenced to
20 years in state prison. The present prison term is his fifth time
he has been sent to prison. Prior to this commitment, appellant
was sentenced to prison in (1) 1995, for robbery, (2) 1997, for
attempted burglary, (3) 2003, for domestic violence, and (4) 2011,
for grand theft.
Former section 1170
Appellant contends the trial court erred in imposing the
upper term pursuant to section 1170 as it existed at the time.
The People contend that appellant forfeited the issue on appeal
because he did not object to the upper term sentence when it was
3
imposed. We agree the issue is forfeited. (See People v. Scott
(1994) 9 Cal.4th 331, 351-354 [defendant cannot challenge trial
court’s sentencing choice for the first time on appeal because
“defects in the court’s statement of reasons are easily prevented
and corrected if called to the court’s attention” at the time of
sentencing].)2
Even if appellant had objected to the imposition of the
upper term under former section 1170, there was no error.3
Former section 1170 provides that when “a judgment of
imprisonment is to be imposed and the statute specifies three
possible terms, the choice of the appropriate term shall rest
within the sound discretion of the court. . . . In determining the
appropriate term, the court may consider the record in the case,
the probation officer’s report, other reports . . . and any further
evidence introduced at the sentencing hearing. The court shall
select the term which, in the court’s discretion, best serves the
interests of justice. The court shall set forth on the record the
reasons for imposing the term selected and the court may not
impose an upper term by using the fact of any enhancement upon
which sentence is imposed under any provision of law.” (Former
§ 1170, subd. (b).)
2 There is a good reason, and a sound tactical reason, why
there was no objection. The trial court struck a prior “strike.”
This was a truly lenient ruling saving appellant from a 25 year to
life sentence. Had an objection to the upper term been made and
credited, appellant might have received a “Three Strikes”
sentence.
3Because we conclude there was no error, we need not
address whether counsel was ineffective for “failing” to object.
4
Here, the trial court reasoned that the upper term was
appropriate because of appellant’s “long and significant criminal
history, and because of the numerous factors in aggravation.”
The trial court considered his criminal history, which began in
1994 and was continuous throughout his adult life. The trial
court also considered the probation report, which, as indicated,
identified several factors in aggravation. Any one of these factors
in aggravation constitutes a sufficient basis to support the upper
term. (People v. Osband (1996) 13 Cal.4th 622, 730.)
Appellant contends the trial court erred in its dual use of
his prior strike convictions “as grounds for the upper term
sentence.” (Former § 1170, subd. (b); Cal. Rules of Court, rule
4.420 (c).) That is not supported by the record. There were three
other felony convictions. The trial court did not violate the “dual
use” rule, and it did not abuse its discretion in imposing the
upper term.
Senate Bill No. 567
Appellant contends his upper term sentence should be
vacated and remanded for resentencing in light of the recent
amendments to section 1170, pursuant to Senate Bill No. 567.
Effective January 1, 2022, Senate Bill No. 567 (2021-2022
Reg. Sess.) (Stats. 2021, ch. 731, § 1.3) (Senate Bill 567) amended
section 1170 such that the middle term is now the presumptive
term of imprisonment. It did not alter the triad of punishments
for robbery. Pursuant to the newly amended law, the trial court
must “order imposition of a sentence not to exceed the middle
term” unless there are “circumstances in aggravation of the crime
that justify the imposition of a term of imprisonment exceeding
the middle term, and the facts underlying those circumstances
have been stipulated to by the defendant, or have been found true
5
beyond a reasonable doubt at trial by the jury or by the judge in a
court trial.” (§ 1170, subd. (b)(1), (2).) There is an exception to
this rule: “[t]he court may consider the defendant’s prior
convictions in determining sentencing based on a certified record
of conviction without submitting the prior convictions to a jury.”
(§ 1170, subd. (b)(3).)
The People concede that the amendment of section 1170 by
Senate Bill 567 applies retroactively to appellant because his case
is not final on appeal. (See In re Estrada (1965) 63 Cal.2d 740,
745; People v. Frahs (2020) 9 Cal.5th 618, 627-637.) We need not
rule on this contention.
We conclude that remand for resentencing is here
unnecessary and would be an idle act. The trial court relied upon
“numerous factors in aggravation” identified by the probation
report. Three of the five factors in aggravation (i.e., prior
convictions that are numerous or increasing in seriousness, prior
prison term, and prior performance on probation and parole) are
readily established by the certified records. They show numerous
felony convictions and prior prison terms.
The certified records also show several probation violations,
which reflect his poor performance on probation. (See People v.
Towne (2008) 44 Cal.4th 63, 79-82 [determinations that a
defendant’s prior convictions are numerous or of increasing
seriousness, prior prison term, parole status, and prior
unsatisfactory performance on probation or parole may be
determined by the record of prior convictions]; People v. Black
(2007) 41 Cal.4th 799, 815, 819-820, overruled on other grounds
in Cunningham v. California (2007) 549 U.S. 270[“determinations whether a defendant has suffered prior
convictions, and whether those convictions are ‘numerous or of
6
increasing seriousness’ [citation], require consideration of only
number, dates, and offenses of the prior convictions alleged” and
a jury determination on these aggravating factors is not
necessary if a record of prior convictions support them].)
Given that several factors relied upon by the trial court, i.e,
appellant’s criminal history, prior prison terms, and prior poor
performance on probation, are supported by the certified records
of convictions and that the trial court found no mitigating
circumstances, we conclude the trial court’s original sentencing
decisions should be affirmed.
Phrased otherwise, the record “clearly indicates” that the
trial court would not impose a more favorable sentence upon
theoretical reversal for resentencing. (People v. Gutierrez (2014)
58 Cal.4th 1354, 1391; People v. Flores (2022) 75 Cal.App.5th 495,
500 [harmless beyond a reasonable doubt standard]; People v.
Salazar (June 28, 2022, B309803) ___Cal.App.5th___ [2022
Cal.App. Lexis 560].) We ourselves have applied the “clear
indication” rule and reversed to allow for resentencing where the
standard had not, in our opinion, been met. (People v. Yanaga
(2020) 58 Cal.App.5th 619, 628 [opn. by Yegan, J., Gilbert, P.J.,
and Perren, J., concurring].) Application of the rule is, of course,
addressed in our judgment. The California Constitution requires
us to “opine” on whether or not there has been a miscarriage of
justice. (Cal. Const., art. VI, section 13.) We do so and conclude
that any error is harmless, and there is no miscarriage of justice
here.
Senate Bill No. 81
Appellant also contends he is entitled to resentencing on
his enhancements in light of Senate Bill No. 81’s amendment to
section 1385. We disagree. Effective January 1, 2022, Senate
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Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81) amended
section 1385 to add subdivision (c)(1). (Stats. 2021, ch. 721, § 1.)
That subdivision provides: “Notwithstanding any other law, the
court shall dismiss an enhancement if it is in the furtherance of
justice to do so, except if dismissal of that enhancement is
prohibited by any initiative statute.” (Italics added.) Senate Bill
81 also added subdivision (c)(2), which provides that “the court
shall consider and afford great weight to evidence offered by the
defendant to prove” various “mitigating circumstances . . . . Proof
of the presence of one or more of these circumstances weighs
greatly in favor of dismissing the enhancement, unless the court
finds that dismissal of the enhancement would endanger public
safety.” Senate Bill 81 “shall apply to sentencings occurring after
the effective date of the act that added this subdivision.” (§ 1385,
subd. (c)(7), italics added.) Here, the sentencing hearing was
held on May 12, 2021 and Senate Bill 81 does not apply. In
addition, there are no mitigating circumstances to consider and
there is no reason to dismiss any enhancement.
Fines and Fees
Appellant contends the trial court’s order imposing a court
operations assessment of $30, a court facilities assessment of $40,
and a $5,000 restitution fine without determining his ability to
pay violated his state and federal right to due process. (People v.
Dueñas (2019) 30 Cal.App.5th 1157.) He did not object when
these fines and fees were imposed at his sentencing hearing in
May 2021, which was over two years after Dueñas was decided.
Therefore, this issue is forfeited. (People v. Fransden (2019) 33
Cal.App.5th 1126, 1153-1154; People v. Greeley (2021) 70
Cal.App.5th 609, 624.)
8
Appellant argues that trial counsel’s ‘failure” to object
amounted to ineffective assistance of counsel. But the record is
silent as to counsel’s reasons, if any, for failing to object. If “‘“the
record on appeal sheds no light on why counsel acted or failed to
act in the manner challenged[,] . . . unless counsel was asked for
an explanation and failed to provide one, or unless there simply
could be no satisfactory explanation,” the claim on appeal must
be rejected.’” (People v. Mendoza Tello (1997) 15 Cal.4th 264,
266.) In these circumstances, the claim of ineffective assistance
is more appropriately decided in a habeas corpus proceeding. (Id.
at p. 267.)
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Michael L. Duffy, Judge
Superior Court County of San Luis Obispo
______________________________
John Derrick, 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, Steven D. Matthews and Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.