People v. Nelson CA2/3 ( 2020 )

Filed 11/24/20 P. v. Nelson CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 THREE
THE PEOPLE, B301575
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA343411-02)
v.
FLOYD NELSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Stephen A. Marcus, Judge. Affirmed.
Emry J. Allen, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Kenneth C. Byrne and Gregory B. Wagner,
Deputy Attorneys General, for Plaintiff and Respondent.
________________________
A jury convicted defendant and appellant Floyd Nelson of
conspiracy to commit robbery, attempted robbery, and possession
of a firearm by a felon. (Pen. Code, §§ 182, 211, 664, & former
§ 12021.)1 Nelson contends the trial court abused its discretion
by refusing to strike or dismiss firearm and serious felony
enhancements. We disagree, and affirm the court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts2
Between October 2007 and May 2008, Alonzo Harris,
sometimes assisted by an accomplice, committed a series of
robberies or attempted robberies and associated crimes at 11 Los
Angeles area stores and one restaurant. Detective Tracey
Benjamin began investigating the robberies, which had been
nicknamed “The Morning Masked Bandits” case, in November
2007. Through that investigation, Detective Benjamin identified
1
All further undesignated statutory references are to the
Penal Code.
2
We derive the factual and procedural background from our
prior opinions in this case and the record in Nelson’s direct
appeal, of which we take judicial notice at appellant’s request.
(People v. Harris (Dec. 20, 2018, B257675) [nonpub. opn.]; People
v. Harris (Aug. 20, 2018, B257675) [nonpub. opn.]; People v.
Harris (Aug. 29, 2017, B257675) [nonpub. opn.]; Evid. Code,
§§ 452, subd. (d), 459.) We deny appellant’s request that we take
judicial notice of our opinion filed March 26, 2018, as we granted
rehearing after issuance of that opinion, which was superseded
by our August 20, 2018 opinion. (See Cal. Rules of Court, rule
8.268(d) [order granting petition for rehearing vacates the
opinion].) We grant the People’s motion to augment the record
with portions of the record in case No. B257675.
2
Harris as a suspect. Beginning in May 2008, a team of detectives
began a 27-day surveillance of him. On 12 of those days, Harris
spent time with appellant Nelson, visiting over 60 different
businesses. Nelson and Harris appeared to be casing the
businesses, rather than shopping.
Starting at about midnight on July 11, 2008, the
surveillance team followed Harris and Nelson to various
businesses: a K-mart, a Vallarta market, a Gelson’s market, a
Marshall’s store, and finally, at approximately 5:30 a.m., a
Lawry’s Prime Rib restaurant located in Beverly Hills. The
restaurant was not open for business at the time. Walter
Eckstein was inside the restaurant, working as the executive
chef. When an employee briefly exited the restaurant and then
went back inside, Harris and Nelson entered through the same
door. Nelson carried a black duffel bag. Harris and Nelson came
back out of the restaurant, hid behind some dumpsters, and then
reentered. Eckstein observed one of them come through the door,
holding a gun; the other grabbed Eckstein from behind and put a
gun to his forehead. Eckstein was ordered to open the safe, but
said he could not. Harris and Nelson forced Eckstein to lie on the
floor and one of them tried to tie his hands, but failed. Harris
and Nelson exited the restaurant and ran to Harris’s truck.
Nelson threw the black bag into the back of the truck, and they
drove off.
Police officers stopped Harris’s truck shortly thereafter.
Harris pointed a firearm at an officer and a gunfight ensued,
during which Nelson was injured. The defendants were arrested.
Harris had a handgun in his waistband. In the bed of the truck,
police found a black bag, which contained 10 zip ties and a second
handgun. Inside the truck’s passenger compartment police found
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a bag containing a pair of gloves; three black half-masks that
would “cover[ ] the lower portion of the face”; a black hoodie
sweatshirt; black and white zip ties; and more gloves.
2. Procedure
a. Nelson’s conviction and the original sentence
Nelson was convicted of conspiracy to commit robbery,
attempted second degree robbery, and possession of a firearm by
a felon. (§§ 182, 211, 664, & former § 12021.)3 The jury also
found true personal firearm use enhancements as to the
conspiracy count (§ 12022.5, subd. (a)) and the attempted robbery
(§ 12022.53, subd. (b)). As relevant here, the trial court found
Nelson had suffered three serious felony convictions (§ 667,
subd. (a)) as well as numerous other felony convictions. (§§ 667,
subds. (b)–(i), 1170.12, subds. (a)–(d).) It sentenced Nelson to a
term of 50 years to life, as follows: on count 2, the attempted
robbery, 25 years to life pursuant to the Three Strikes law, plus
three 667, subdivision (a) five-year serious felony enhancements,
plus a 10-year firearm enhancement pursuant to section
12022.53, subdivision (b). It stayed sentence on count 1,
including a section 12022.5 firearm enhancement, pursuant to
section 654, and imposed a concurrent sentence on the felon in
possession of a firearm count.
b. Nelson’s appeals
In an unpublished opinion filed on August 29, 2017, we
affirmed Nelson’s convictions, but found the trial court had erred
by imposing two out of three section 667, subdivision (a) serious
felony enhancements, because they had not been properly pled.
We modified the judgment by striking the two enhancements,
3
Harris was convicted of these and additional crimes. He
died in prison in 2018, and consequently we dismissed his appeal.
4
affirmed it as modified, and remanded to the trial court for
resentencing. At a hearing conducted on November 15, 2017, the
trial court resentenced Nelson to 25 years to life on the attempted
robbery pursuant to the Three Strikes law, plus one 5-year
section 667, subdivision (a) serious felony enhancement, plus a
10-year, section 12022.53, subdivision (b) firearm enhancement.
The court again stayed sentence on the conspiracy charge
pursuant to section 654, but imposed a consecutive four-year
sentence on the felon in possession of a firearm count.
Thereafter, our Supreme Court granted Nelson’s petition
for review and transferred the matter back to us with directions
to reconsider the cause in light of the enactment of Senate Bill
No. 620 (Senate Bill 620), which took effect during the pendency
of Nelson’s appeal and gave trial courts discretion to strike or
dismiss firearm enhancements. In an unpublished opinion issued
on August 20, 2018, we affirmed Nelson’s convictions but vacated
his sentence and remanded for resentencing.
The Supreme Court granted Nelson’s subsequent petition
for review and directed us to reconsider the cause in light of then-
recent Senate Bill No. 1393, which gave trial courts discretion to
strike or dismiss serious felony enhancements imposed pursuant
to section 667, subdivision (a). In an unpublished opinion issued
on December 20, 2018, we affirmed Nelson’s convictions but
vacated his sentence and remanded for resentencing.
c. August 2019 resentencing
On August 7, 2019, the trial court held a resentencing
hearing. It declined Nelson’s requests to strike the firearm
enhancements and the one remaining serious felony
enhancement. Defense counsel argued that Nelson’s age, 60
years old at the time of the resentencing, made it statistically
5
unlikely he would reoffend, and he would serve a substantial
sentence even if the enhancements were stricken. The People
argued that Nelson’s prior record was “substantial,” and he had
“essentially lived his life in and out of prison and committing
robberies . . . .”
The trial court expressly recognized it had discretion to
strike the enhancements, but declined to do so based on the facts
of the current offense and Nelson’s serious criminal history. The
court explained: “After reviewing the facts of the case,
defendant’s prior record, and the serious nature of the robbery at
Lawry’s,” it would not exercise its discretion to strike the
enhancements. “The biggest reason the court has made this
decision is the criminal history of this defendant. He is a
recidivist and poster child for the Three Strikes law.” The court
observed that in 1978, Nelson was convicted of robbery and was
sentenced to three years in prison. In 1981, he was again
convicted of robbery, and was sentenced to 10 years in prison. In
1989, he was charged with robbery but pled to possession of a
firearm by a felon, and was sentenced to 16 months. In 1990, he
was convicted of four counts of assault with a firearm and four
counts of robbery, and was sentenced to 28 years. At the time he
committed the attempted robbery at Lawry’s, he had been out of
prison for approximately nine months. The court opined, “Nelson
has a profession like I have a profession as a judge. He is a
professional robber.” Moreover, the court observed that in the
current offense, Nelson was carrying a firearm in his bag.
The court expressly recognized, as mitigating factors, that
no one was hurt during the Lawry’s incident, and Nelson was
shot during the shootout between Harris and police. The court
also opined that Nelson was “a smart guy and could have done so
6
much more with his life.” However, the court concluded, “I can’t
ignore this record. There is hardly any crime-free time in
Mr. Nelson’s life . . . .” “The scales of justice do not lean towards
Mr. Nelson, and so I’m declining to exercise any discretion.”
Nelson timely appealed.
DISCUSSION
The trial court’s ruling was not an abuse of discretion
Nelson argues that the trial court’s refusal to exercise its
discretion to strike the firearm and serious felony enhancements
was an abuse of discretion. We disagree.
We review a trial court’s discretionary decision to strike or
dismiss a sentencing allegation under section 1385 for abuse of
discretion. (People v. Carmony (2004) 33 Cal.4th 367, 373; People
v. Pearson (2019) 38 Cal.App.5th 112, 116 [considering court’s
denial of request to strike firearm enhancement pursuant to
Senate Bill 620]; People v. Shaw (Oct. 26, 2020, D076124) __
Cal.App.5th __ [2020 Cal.App.Lexis 1007] [abuse of discretion
standard applies to trial court’s denial of request to strike serious
felony enhancement pursuant to Senate Bill 1393]; People v.
Brooks (2020) 53 Cal.App.5th 919, 926–927.) “ ‘In reviewing for
abuse of discretion, we are guided by two fundamental
precepts. First, “ ‘[t]he burden is on the party attacking the
sentence to clearly show that the sentencing decision was
irrational or arbitrary. [Citation.] In the absence of such a
showing, 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.’ ” [Citation.] Second, a “ ‘decision will not be
reversed merely because reasonable people might disagree. “An
appellate tribunal is neither authorized nor warranted in
7
substituting its judgment for the judgment of the trial judge.” ’ ”
[Citation.] Taken together, these precepts establish that a trial
court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree with
it.’ ” (People v. Pearson, at p. 116.) Unless the record
affirmatively reflects otherwise, we presume the trial court
considered the relevant sentencing factors listed in the California
Rules of Court. (Id. at p. 117; see Cal. Rules of Court, rules
4.409, 4.428(b), 4.410. 4.421, & 4.423.)
No abuse of discretion is apparent here. The trial court
appropriately considered Nelson’s criminal history, the facts of
the offense, and the few mitigating factors that existed.
California Rules of Court, rule 4.409, provides, “[r]elevant factors
enumerated in these rules must be considered by the sentencing
judge, and will be deemed to have been considered unless the
record affirmatively reflects otherwise.” Among the aggravating
factors listed in California Rules of Court, rule 4.421, are those
relating to the crime, including that the defendant was armed
with or used a weapon and that the manner in which the crime
was carried out indicated planning, sophistication or
professionalism. Both these factors existed here. Nelson carried
a gun into the restaurant, and used it against the victim. Nelson
and Harris extensively planned the offense: they cased
numerous businesses and brought firearms, zip ties, and masks
with them.
Circumstances in aggravation also include factors relating
to the defendant, including that he has engaged in violent
conduct indicating a serious danger to society; his convictions as
an adult are numerous or of increasing seriousness; and he has
served a prior prison term. (Cal. Rules of Court, rule 4.421(b).)
8
Armed robbery presents a danger to society, as did Nelson’s
earlier robbery and assault with a firearm offenses. Nelson’s
criminal history, as recited by the trial court, was lengthy and
serious.
Of the 15 mitigating circumstances listed in California
Rules of Court, rule 4.423, only a single one exists here: that the
victim was not actually harmed. (Rule 4.423(a)(6).) The trial
court expressly considered this factor, and found it did not
outweigh the aggravating circumstances. Nelson’s age was the
primary—indeed, the only—mitigating circumstance argued by
defense counsel. We have no reason to believe the trial court
ignored this circumstance. The fact the court rejected defense
counsel’s argument does not mean the court failed to consider
Nelson’s age. In short, the court’s ruling was neither arbitrary
nor capricious, and no abuse of discretion is apparent.
Nelson argues that the trial court abused its discretion for
several reasons, none persuasive. First, he argues that the trial
court improperly based its decision “exclusively” on his prior
record. As we have explained, it did not. Citing People v.
Superior Court (Alvarez ) (1997) 14 Cal.4th 968 (Alvarez) and
People v. Garcia (1999) 20 Cal.4th 490 (Garcia), Nelson argues
that it is improper for a trial court to “plac[e] undue emphasis on
the defendant’s prior record and recidivism.”
Alvarez and Garcia do not stand for this proposition.
Alvarez considered the scope of the trial court’s discretion to
reduce an offense, originally charged as a felony under the Three
Strikes law, to a misdemeanor. (Alvarez, supra, 14 Cal.4th at
pp. 972–973.) Rejecting the People’s argument that there should
be a “nonstatutory presumption against reducing wobblers in
three strikes cases,” the court reasoned that to “judicially
9
mandate that a single factor predominate the trial court’s
exercise of discretion would eviscerate the essence of its statutory
authority; indeed, it would be one step shy of declaring the three
strikes law eliminates the court’s discretion entirely.” (Id. at
p. 979.) Alvarez concluded that “courts continue to have broad
authority the exercise of which should be reviewed in accordance
with the generally applicable standard. While a defendant’s
recidivist status is undeniably relevant, it is not singularly
dispositive.” (Id. at p. 973, italics added.) “A necessary
concomitant of this authority is the discretion to weigh the
various sentencing considerations commensurate with the
individual circumstances. [Citations.] For that reason, the fact a
wobbler offense originated as a three strikes filing will not
invariably or inevitably militate against reducing the charge to a
misdemeanor.” (Id. at p. 979.)
In other words, Alvarez held that despite a defendant’s
recidivism and the Three Strikes law’s goal of ensuring longer
sentences for recidivists, trial courts retain discretion to reduce
offenses to misdemeanors. By using the language italicized
above, Alvarez did not indicate that when exercising its
discretion, a court is prohibited from giving preponderant weight
to a defendant’s criminal history, just that it is not required to do
so. In fact, a court “ ‘must accord ‘preponderant weight . . . to
factors intrinsic to the [Three Strikes] scheme, such as the nature
and circumstances of the defendant’s present felonies and prior
serious and/or violent felony convictions, and the particulars of
his background, character, and prospects.’ ” (Garcia, supra, 20
Cal.4th at pp. 498–499, quoting People v. Williams (1998) 17
Cal.4th 148, 161.)
10
The issue in Garcia was whether a trial court was
permitted to strike a prior “strike” allegation as to one count, but
not another. (Garcia, supra, 20 Cal.4th at pp. 492–493, 496.) In
considering the People’s argument that the primary purpose of
the Three Strikes law was to ensure longer prison sentences,
Garcia reasoned that “this purpose is not a mantra that the
prosecution can invoke in any Three Strikes case to compel the
court to construe the statute so as to impose the longest possible
sentence.” (Id. at p. 501.) In support of this conclusion, Garcia
cited Alvarez’s point that while a defendant’s recidivist status is
relevant, it is not “ ‘singularly dispositive.’ ” (Ibid.)
In short, these cases do not stand for the proposition that a
trial court cannot assign preponderant weight to a defendant’s
criminal history when deciding whether to strike or dismiss an
enhancement. And, contrary to Nelson’s argument, we do not
view the trial court’s comments as indicating it believed Nelson
was unentitled to relief as a matter of law, thereby depriving him
of individualized sentencing consideration. “ ‘[A] court abuses its
discretion if it dismisses a case, or strikes [or vacates] a
sentencing allegation [or finding], solely “to accommodate judicial
convenience or because of court congestion.” . . . A court also
abuses its discretion by dismissing a case, or a sentencing
allegation [or finding], simply because a defendant pleads guilty. .
. . Nor would a court act properly if “guided solely by a personal
antipathy for the effect that the three strikes law would have on
[a] defendant,” while ignoring “defendant’s background,” “the
nature of his present offenses,” and other “individualized
considerations.” ’ ” (People v. Williams, supra, 17 Cal.4th at
p. 159.) The trial court here did not consider such impermissible
non-individualized factors, but instead based its decision on
11
precisely the type of “individualized considerations” referenced by
Williams.
Second, Nelson argues that the court “failed to afford full
mitigating weight” to his age, 60 at the time of sentencing.
Although Nelson references “mitigating aspects of [his]
background” (italics added), he points to no purportedly
mitigating factor other than age, nor did his counsel below alert
the court to any other additional circumstance. Instead, his
argument is entirely based upon his age. But advanced age alone
is not necessarily a mitigating factor, and did not here require
that the trial court strike the enhancements. “While some courts,
in considering whether to dismiss a strike, have considered age in
conjunction with the length of the sentence and the defendant’s
prospects, middle age, considered alone, does not remove a
defendant from the spirit of the Three Strikes law. Otherwise,
those criminals with the longest criminal records over the longest
period of time would have a built-in argument that the very
factor that takes them within the spirit of the Three Strikes
law—a lengthy criminal career—has the inevitable
consequence—middle age—that takes them outside the law’s
spirit.” (People v. Strong (2001) 87 Cal.App.4th 328, 345, internal
fn. omitted; cf. People v. Babbitt (1988) 45 Cal.3d 660, 716 [for
purposes of penalty phase in capital case, age is neither a
mitigating nor an aggravating factor]; People v. Williams, supra,17 Cal.4th at p. 163 [lapse of 13 years between appellant’s prior
and current felonies was not significant where he did not refrain
from criminal activity during that period and “did not add
maturity to age.”].) The same is true here in regard to striking
the enhancements.
12
Moreover, Nelson was approximately 49 years old when he
committed the Lawry’s crimes. As the court recounted, Nelson
has committed repeated robberies throughout his entire life.
(See People v. Strong, supra, 87 Cal.App.4th at p. 345 [fact that
defendant’s prior violent strike was committed when he was 38
contravened the conclusion that at age 41, he was less likely to
pose a risk to society].) The trial court was not required to strike
the enhancements simply because Nelson was 60 years old.
Nelson’s reliance on Graham v. Florida (2010) 560 U.S. 48(Graham) for the proposition that the court “must give full
mitigating weight to the defendant’s age,” is inapt. Graham
concluded that, under the Eighth Amendment, juvenile offenders
could not be sentenced to life in prison without the possibility of
parole for a nonhomicide crime. (Id. at pp. 52–53, 74.) The
court’s analysis was based, among other things, on the facts that
as compared to adults, juveniles are less culpable; they lack
maturity, are more vulnerable to negative influences and outside
pressures, and their characters are not as well formed. (Id. at
p. 68.) “A juvenile is not absolved of responsibility for his actions,
but his transgression ‘is not as morally reprehensible as that of
an adult.’ [Citation.]” (Ibid.) Obviously, these concerns are
absent here: Nelson was an adult, not a juvenile; his character as
a professional criminal appears to have been fully formed over
many years; and his offenses were not less morally reprehensible
simply because he had reached the age of 60.
Nor does People v. LaBlanc (2015) 238 Cal.App.4th 1059assist Nelson. That case concerned a petition by a sexually
violent predator (SVP) for unconditional discharge, which the
trial court dismissed as frivolous. (Id. at pp. 1062–1063.) The 70-
year old petitioner suffered from a plethora of medical conditions
13
that, in the opinion of an expert, reduced his recidivist rate to
“ ‘almost nonexistent.’ ” (Id. at pp. 1068, 1077.) LaBlanc
reasoned that “advanced age and onset of serious medical
conditions of an SVP are potentially relevant factors in
determining whether a petition for unconditional release is
frivolous, because various studies have concluded that
recidivism rates decrease significantly among older male sex
offenders.” (Id. at p. 1076.) Accordingly, these factors, as set
forth in the expert’s opinion, provided a “colorable showing”
entitling the defendant to an evidentiary hearing. (Id. at
p. 1077.) As is readily apparent, LeBlanc is factually and
procedurally distinguishable from the instant matter. The
LaBlanc court did not suggest a trial court ruling on a motion to
strike enhancements is required to treat age as the paramount,
overriding factor in its calculus.
Finally, Nelson argues that in this court’s March 26, 2018
opinion in this case, we held that codefendant Harris’s case did
not need to be remanded for resentencing because “relief was
unavailable to Harris as a matter of law,” whereas in Nelson’s
case, we remanded for resentencing, “in effect acknowledg[ing]
that [Nelson’s] record was not so egregious that he should be
denied the benefits of ameliorative legislation as a matter of law.”
But we granted rehearing after issuing our March 26, 2018
opinion, which was therefore vacated. (See Cal. Rules of Court,
rule 8.268(d) [“An order granting a rehearing vacates the decision
and any opinion filed in the case and sets the cause at large in
the Court of Appeal.”].)4 Reliance on this opinion is therefore
misplaced.
4
Even if the March 26, 2018 opinion were still extant,
Nelson misconstrues it. We reasoned that remand was
14
In sum, the trial court’s ruling was neither arbitrary nor
capricious, and did not constitute an abuse of discretion.5
unnecessary in Harris’s case because the trial court’s comments
at sentencing indicated it would not have stricken the
enhancements, even had it possessed the discretion to do so, not
because he was ineligible “as a matter of law,” as Nelson avers.
And nothing in our opinion “acknowledged” or implied that the
trial court should strike Nelson’s enhancements; we expressly
offered no opinion on the matter.
5
Nelson states in passing that the denial of his “Romero
motion” (sic) infringed his state and federal rights to due process
and to be free of cruel or unusual punishment. We do not
understand Nelson to assert these constitutional claims as
separate bases for relief. To the extent he seeks to assert a claim
that his sentence constitutes cruel or unusual punishment, he
has failed to offer authority or reasoned argument on the
question, and any such contention is waived. (People v. Barnett
(1998) 17 Cal.4th 1044, 1107, fn. 37 [contention perfunctorily
asserted without analysis or argument rejected as not properly
raised]; People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1543,
fn. 3 [argument waived where asserted without pertinent
argument or citation to applicable authority]; People v. Harper
(2000) 82 Cal.App.4th 1413, 1419, fn. 4.)
15
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
DHANIDINA, J.
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