People v. Evans CA2/5 ( 2023 )

Filed 9/15/23 P. v. Evans CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
THE PEOPLE, B320205
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. TA144389)
MARQUES TERREL EVANS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Allen Joseph Webster, Jr., Judge. Affirmed as
modified.
Brad Kaiserman, 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, Zee Rodriguez, Supervising Deputy
Attorney General, and Yun K. Lee, Deputy Attorney General, for
Plaintiff and Respondent.
A jury found defendant and appellant Marques Terrel
Evans (defendant) guilty of numerous sex crimes committed
against two different women. In an earlier appeal, we affirmed
his convictions and remanded for resentencing. On remand, the
trial court imposed an aggregate prison term of 68 years to life in
prison. In this appeal from the resentencing, defendant
principally presents a claim of sentencing error recently rejected
by our Supreme Court in People v. Catarino (2023) 14 Cal.5th
748. In addition, defendant asks us to decide whether the trial
court prejudicially erred in imposing an upper term concurrent
sentence for one of defendant’s convictions in the absence of an
aggravating circumstance finding by the jury, whether another
remand is required so that the court may consider already-
existing alternatives to incarceration as urged by a newly enacted
penal statute, and whether fines and assessments were
erroneously imposed.
I. BACKGROUND
A. Defendant’s Convictions and Initial Sentencing
A trial jury convicted defendant of committing multiple
offenses against Abigail S. (Abigail), an acquaintance he invited
to his home in July 2017: forcible rape (Pen. Code,1 § 261, subd.
(a)(2)) (count 14), forcible oral copulation (former § 288a, subd.
(c)(2)(A)) (count 15), and misdemeanor false imprisonment (§ 236)
(count 16). The jury also convicted defendant of committing
several crimes against Ariel R. (Ariel), an exotic dancer/masseuse
who he lured to his home in October 2017: assault with a firearm
1
Undesignated statutory references that follow are to the
Penal Code.
2
(§ 245, subd. (a)(2)) (count 1), forcible oral copulation (former
§ 288a, subd. (c)(2)(A)) (counts 6 and 11), sexual penetration by a
foreign object (count 7), criminal threats (§ 422, subd. (a)) (count
9), assault with intent to commit a sexual offense (§ 220, subd.
(a)(1)) (count 19), battery with serious bodily injury (§ 243, subd.
(d)) (count 20), and false imprisonment of a hostage (§ 210.5)
(count 22). In addition, the jury found defendant guilty of
offenses committed against Ariel’s driver: assault with a firearm
(§ 245, subd. (a)(2)) (count 2) and criminal threats (§ 422, subd.
(a)) (count 21). The jury also found true sentence enhancement
allegations that defendant used a firearm, inflicted great bodily
injury, and committed sexual offenses against more than one
victim.
The trial court initially sentenced defendant to an
aggregate prison term of 155 years to life (a 50-year determinate
sentence plus 105 years to life). On direct appeal, we affirmed
defendant’s convictions but remanded for resentencing due to a
misapplication of the One Strike law (§ 667.61). (People v. Evans
(Jun. 30, 2021, B302308) [nonpub. opn.].)
B. Defendant’s Resentencing
At resentencing, the prosecution urged the trial court to
sentence defendant to at least 95 years to life in prison. The
defense asked the court to impose a sentence of 68 years to life.
Defendant also personally addressed the court at great length
(over an hour) and remarked on: what he believed to be
mitigating considerations, his use of drugs and alcohol at the
time of the crimes of conviction, complaints about guards and
inmates while he had been held in custody, his trial attorney’s
3
failure to investigate, and complaints about the trial evidence
and procedure. He also professed his innocence.2
The trial court responded to defendant’s allocution and
emphasized defendant’s lack of remorse for his crimes, his failure
to accept responsibility for his own conduct, and his difficulty
understanding that his cited mitigation, even if true, still did not
justify his criminal conduct. The court also explained it would be
imposing a sentence to do justice, which required “a sentence that
balances what’s best for you and fair to you and what’s fair to the
victims and the [P]eople.”
The trial court imposed the sentence recommended by the
defense: 68 years to life in prison. On the forced oral copulation
conviction in count 6, which was used as the base term, the court
sentenced defendant to 25 years to life. The court then ordered
the following sentences to run consecutive to that term: one year
(one-third of the middle term) for assault with a firearm in count
2, 25 years to life for sexual penetration by a foreign object in
count 7, 15 years to life for rape in count 14, and two years for
assault with intent to commit a sexual offense in count 19. The
remainder of the counts of conviction were ordered to run
concurrently, including an eight-year upper term sentence on
count 22, the false imprisonment of a hostage conviction. The
court struck all of the sentencing enhancements the jury found
true and, without any ability to pay objection from the defense,
imposed various fines, fees, and assessments.
2
For example: “There’s no way in hell you can truly,
absolutely believe I did all of these things, just no way. Yeah, the
jury voted, but even they, from their questions and deliberations,
showed how confused they actually were.”
4
II. DISCUSSION
Defendant contends his Sixth Amendment right to a jury
trial was violated when the trial court relied on facts not found by
the jury to order the indeterminate sentences on counts 6 and 7
to run consecutively. Our Supreme Court recently held in
Catarino that section 667.6 subdivision (d) does not run afoul of
the Sixth Amendment in requiring that a sentencing court
impose “full, separate, and consecutive term[s]” for particular sex
crimes if they were committed on separate occasions. (Catarino,
supra, 14 Cal.5th at 750; see also Oregon v. Ice (2009) 555 U.S.
160, 167-168; People v. Wandrey (2022) 80 Cal.App.5th 962, 978-
980.) In so holding, the Catarino court disapproved People v.
Johnson (2023) 88 Cal.App.5th 487, the California appellate
decision upon which defendant relies. (Catarino, supra, at 757.)
In light of our Supreme Court’s guidance (and the evidence fully
justifying the implied factual findings that support the statutory
predicate for consecutive sentencing), we reject defendant’s Sixth
Amendment contention without need for further discussion.
Reversal is not required for any of defendant’s other
sentencing contentions either. The error in sentencing defendant
to the upper term on count 22 without a supporting jury finding
of aggravating circumstances was harmless because only a
concurrent sentence was imposed on that count and because we
are in any event confident the court would have imposed the
same sentence based on an aggravating factor the jury would
have surely found true. Remand is also unnecessary to address
recently enacted section 17.2, which urges courts to consider
alternatives to incarceration. We have some doubts about the
Attorney General’s concession that the statute applies
retroactively to defendant (the terms of the statute appear
5
hortatory and create no new avenue for reduced punishment), but
even assuming retroactive application, the record is clear that the
trial court would not impose a non-custodial sentence in this case.
Finally, defendant’s challenge to the financial components of his
sentence under People v. Dueñas (2019) 30 Cal.App.5th 1157 is
forfeited for lack of a contemporaneous objection, and the
associated perfunctory assertion of ineffective assistance of
counsel fails because the appellate record does not reveal counsel
could have no valid reason to refrain from objecting.
A. The Upper Term Sentence on the Count 22 False
Imprisonment of a Hostage Conviction Is Harmless
Error
1. Additional background
After Ariel entered defendant’s partially furnished garage
during the early morning hours of October 1, 2017, defendant
offered her what she believed to be cocaine; she declined.
Defendant then demanded she have sex with him. When she
refused, defendant grabbed a pistol and ordered her to undress.
When she again refused, defendant snatched her phone, struck
her in the head with the handgun, beat her with his fists, and
choked her until she passed out.
When Ariel regained consciousness, defendant again
ordered her to strip. After she complied, defendant digitally
penetrated her vagina and anus as she lay on a couch. At
gunpoint, he then ordered her to kneel on the garage’s floor,
where he repeatedly forced her to orally copulate him. The forced
oral sex was interrupted on several occasions when defendant got
up from the couch to check a computer monitor which displayed a
video feed from several external security cameras.
6
After police arrived outside of the home in response to a
call from Ariel’s driver, defendant started to panic. He dragged
Ariel, naked, from one room in his house to another. Eventually,
he returned her clothes and allowed her to leave the house.3
Paramedics treated Ariel’s head laceration and transported
her to a local hospital where she received two staples in her scalp.
Two days after defendant assaulted her, Ariel was treated by a
sexual assault nurse who found (in addition to her head
laceration and various bruises) injuries consistent with
strangulation, forced oral copulation, and penetration of her
vagina and anus with a foreign object; the nurse characterized
the injuries to Ariel’s mouth and genital area to be “significant”
because they were present days after the assault.
At defendant’s first sentencing hearing, the trial court
found his criminal conduct to be as “horrific” and as “senseless”
as any case it had previously presided over. In view of the jury’s
guilty verdict on all counts and true finding on all of the
sentencing enhancements, the court denied the defense’s request
3
Abigail’s experience shared features similar to Ariel’s.
When Abigail arrived at defendant’s home late in the evening he
invited her into the garage, where they talked and eventually had
consensual oral and vaginal sex. After placing her clothes, car
keys, phone, and other personal items out of her reach, defendant
repeatedly invited Abigail to “do a line” of what appeared to be
cocaine; when she refused, defendant became upset. When she
told defendant she wanted to go home, he refused to return her
clothes and effects to her and told her she could not leave until
she performed more oral sex. Over the course of the next several
hours defendant repeatedly forced Abigail to engage in vaginal
and oral sex against her will.
7
for probation. In fashioning an appropriate sentence, the trial
court cited the following aggravating factors: the crimes involved
great bodily harm, and threats of great bodily harm (Cal. Rules of
Court, rule 4.421(a)(1)), defendant was armed with a weapon and
used it (Cal. Rules of Court, rule 4.421(a)(2)), the victims were
vulnerable (Cal. Rules of Court, rule 4.421(a)(3)), and the manner
in which defendant carried out the crimes exhibited planning,
sophistication, or professionalism (Cal. Rules of Court, rule
4.421(a)(8)). As mitigating factors, the court considered
defendant’s insignificant record of criminal conduct (Cal. Rules of
Court, rule 4.423(b)(1)), as well as his education and work history
(Cal. Rules of Court, rule 4.423(c)).4 The court found the
circumstances in aggravation outweighed those in mitigation and
imposed the upper term of eight years on count 22.
When resentencing defendant, the trial court again
imposed the upper term on count 22. The court did not re-review
the reasons for its choice of the upper term during the
resentencing hearing, however; the only mention of the particular
sentence on that count was in connection with whether the court
intended it to run concurrently or consecutively (the court stated
it was the former).
4
The probation report prepared in advance of defendant’s
original sentencing hearing also listed four aggravating factors:
(1) the crimes involved great violence and/or bodily injury; (2) the
manner of the crimes indicated planning, sophistication, or
professionalism; (3) defendant’s violent conduct indicates a
serious danger to society; and (4) defendant’s criminality is of
increasing seriousness. The report did not identify any
mitigating factors.
8
2. Analysis
“Pursuant to Senate Bill No. 567 [effective January 1,
2022], section 1170, subdivision (b) has been amended to make
the middle term the presumptive sentence for a term of
imprisonment; a court now must impose the middle term for any
offense that provides for a sentencing triad 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 beyond a
reasonable doubt at trial by the jury or by the judge in a court
trial.’ (§ 1170, subd. (b)(1) & (2).)” (People v. Lopez (2022) 78
Cal.App.5th 459, 464.) The Attorney General correctly concedes
the amended version of section 1170 applies retroactively to
defendant’s case.
That said, the eight-year sentence on count 22 was ordered
to run concurrently with the much longer indeterminate
aggregate sentence imposed as a result of defendant’s other
convictions—and there is no challenge (or at least no meritorious
challenge) to the other custodial components of defendant’s
sentence. Section 1170 error in imposing the upper-term
sentence on count 22 is therefore harmless because the sentence
will run concurrently. (People v. Brockman (1936) 15 Cal.App.2d
256, 258 [“If error arose in the decisions and judgments[,] it was
rendered harmless by the act of the court in ordering the two
sentences to be served concurrently”].)
The error was also harmless for another reason. We will
assume the more defendant-favorable standard of assessing
harmlessness for asserted Senate Bill No. 567 error outlined in
Lopez applies. (Lopez, supra, 78 Cal.App.5th at 465-467; but see
9
People v. Flores (2022) 75 Cal.App.5th 495, 500-501 [less
defendant-favorable standard].) We are confident beyond a
reasonable doubt that the jury would have found, as the trial
court previously explained when first sentencing defendant, that
“the crime involved great violence, great bodily harm, threat of
great bodily harm, or other acts disclosing a high degree of
cruelty, viciousness, or callousness.” (Cal. Rules of Court, rule
4.421(a)(1).) In addition, and after reviewing the court’s and
defendant’s comments at sentencing and resentencing, we are
convinced the trial court would have exercised its discretion to
impose the same upper term sentence solely on the basis of this
aggravating factor, i.e., even assuming for argument’s sake that
reliance on other factors was improper (Lopez, supra, at 467 & fn.
11).
C. Remand Pursuant to Section 17.2 Is Not Required
Because the Record Clearly Indicates the Trial Court
Would Not Sentence Defendant to a Less Restrictive
Alternative to Incarceration
1. Additional background
At the resentencing hearing, defendant asked the court not
to sentence him to any additional prison time. Instead, he asked
the court to “make this a combination of time I’ve done in a
mandatory supervision to appease the scheme of things [sic]. I’ll
do whatever programs available in here, if you let me, on the
outside. I’ll even wear your ankle bracelet monitoring my life.
I’ll play the probations and paroles for however long you’d like
and with drug testing so you can see I stopped using the day I
was arrested and no more a fan of it. You can tag your drunk
suspensions [sic] onto the max if need be. But give me those
10
options to save my life and let me show you . . . that I nor any of
us here will ever visit another situation of this . . . caliber ever
again. I have truly been scared straight and you know I have.
[¶] Just, please, allow me to return to my children . . . .”
The trial court rejected defendant’s request for a sentence
that would avoid incarceration. As the court put it, “[T]he law
will not allow me to let you come home with an ankle[ ] bracelet
and do drug rehab or something. You know, it’s not going to
happen.”
2. Analysis
Four months after defendant was resentenced, section 17.2
was added to the Penal Code. (Assem. Bill No. 2167 (2021–2022
Reg. Sess.) § 2, added September 29, 2022.) The law took effect
on January 1, 2023, eight months after defendant was
resentenced. (Cal. Const., art. IV, § 8, subd. (c).) Section 17.2
provides: “(a) It is the intent of the Legislature that the
disposition of any criminal case use the least restrictive means
available. [¶] (b) The court presiding over a criminal matter shall
consider alternatives to incarceration, including, without
limitation, collaborative justice court programs, diversion,
restorative justice, and probation. [¶] (c) The court shall have the
discretion to determine the appropriate sentence according to
relevant statutes and the sentencing rules of the Judicial
Council.” The Legislature’s intent in enacting the new law was
for a court presiding over a criminal matter to “impose an
alternative to incarceration, except where incarceration is
necessary to prevent physical injury to others or the interests of
justice would best be served by incarceration.” (Assem. Bill No.
2167 (2021-2022 Reg. Sess.) § 1.)
11
In this case, we will assume for the sake of argument that
the Attorney General is correct to concede section 17.2 applies
retroactively to defendant under principles first announced in In
re Estrada (1965) 63 Cal.2d 740. A remand is still unwarranted.
The trial court’s comments at sentencing make it abundantly
clear the court would not impose an incarceration-alternative
sentence. (See People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
Indeed, we can go further and say it would be an abuse of
discretion to impose such a sentence on the facts here even if the
court were inclined to do so.
D. Defendant Forfeited His Dueñas Argument and Has
Not Shown His Trial Attorney Was Ineffective by Not
Objecting to Various Criminal Assessments and Fines
Relying on Dueñas, supra, 30 Cal.App.5th 1157, defendant
argues the imposition of court operations assessments, conviction
assessments, and restitution fines was improper because the trial
court did not consider his ability to pay. Defendant was re-
sentenced in May 2022—more than three years after the Court of
Appeal issued its opinion in Dueñas. Defendant concedes his trial
attorney did not request an ability to pay determination and the
record shows his attorney did not object to any of the fines, fees,
or assessments.5 The point is accordingly forfeited on appeal.
(People v. Flowers (2022) 81 Cal.App.5th 680, 687.)
5
The defense’s silence on the ability to pay issue came after
we stated, in our prior opinion, that the trial court should
consider with care “any objections the defense may make to
[various] financial obligations.”
12
Defendant additionally contends (albeit in a perfunctory
manner) that the absence of an ability-to-pay objection by his
trial attorney constitutes ineffective assistance of counsel. “‘In
assessing claims of ineffective assistance of trial counsel, we
consider whether counsel’s representation fell below an objective
standard of reasonableness under prevailing professional norms
and whether the defendant suffered prejudice to a reasonable
probability, that is, a probability sufficient to undermine
confidence in the outcome. (Strickland v. Washington (1984) 466
U.S. 668, 694[ ]; People v. Ledesma (1987) 43 Cal.3d 171, 217[ ].)’”
(People v. Carter (2005) 36 Cal.4th 1114, 1189.) We presume
“‘counsel’s performance fell within the wide range of professional
competence and that counsel’s actions and inactions can be
explained as a matter of sound trial strategy.
Defendant . . . bears the burden of establishing constitutionally
inadequate assistance of counsel.” (Ibid.) If the record on direct
appeal “‘sheds no light on why counsel acted or failed to act . . . ,’”
a reviewing court must reject an ineffective assistance of counsel
claim “‘unless counsel was asked for an explanation and failed to
provide one, or there simply could be no satisfactory
explanation.’” (Ibid.)
We reject defendant’s ineffective assistance of counsel claim
because the record is silent as to why counsel did not interpose an
ability-to-pay objection and it is easy to hypothesize a satisfactory
explanation for the absence of an objection. (See, e.g., People v.
Keene (2019) 43 Cal.App.5th 861, 864-865 [rejecting defendant’s
“throwaway” argument that his trial counsel was ineffective by
not objecting to various criminal fines and assessments: “We have
no idea why counsel did not raise the ability to pay issue. . . . We
13
have no idea whether the fines, fees or assessments were of any
consequence”].)
E. Modifications Are Required to the Resentencing Order
and Abstract of Judgment
At the resentencing hearing, the trial court stated the
punishment for count 19 would be “one third [of the] midterm.”
The middle term for assault with intent to commit a sexual
offense is four years. (§ 220, subd. (a)(1).) As a result, defendant
should have been sentenced to 16 months on count 19, not two
years. We order the minute order and the abstract of judgment
to reflect that the correct sentence on count 19 is 16 months.
(People v. Mitchell (2001) 26 Cal.4th 181, 185 [holding reviewing
courts have the inherent power on appeal to correct clerical
errors found in court records, such as may be found in abstracts
of judgment, whether on the court’s own motion or upon
application of the parties]; accord People v. Jones (2012) 54
Cal.4th 1, 89.)
The minute order from the resentencing hearing states that
the sentence for count 11 was to “run consecutive” to counts 6 and
7. The reporter’s transcript of the hearing, however, reflects that
the trial court imposed a prison term for count 11 to run
concurrent with the sentences in counts 6 and 7, a
pronouncement that is accurately reflected in the abstract of
judgment. Defendant and the Attorney General urge us to order
the minute order be corrected to accurately reflect the concurrent
sentence for count 11. Because the oral pronouncement of
sentence controls, we so order. (People v. Price (2004) 120
Cal.App.4th 224, 242 [“Any discrepancy between the minutes and
the oral pronouncement of a sentence is presumed to be the result
14
of clerical error. Thus, the oral pronouncement of sentence
prevails in cases where it deviates from that recorded in the
minutes”].) We further order that the minute order be corrected
to reflect that the sentence on count 19 is to run consecutive, not
“conservative,” to count 6.
The trial court imposed seven court operations assessments
($210 in total) and seven criminal conviction assessments ($280
in total) for seven counts (counts 2, 6, 7, 11, 14, 15, and 19).
Because defendant was convicted of 14 crimes (13 felonies and
one misdemeanor) and because the law requires an assessment
for each conviction, the court was required to impose a total of
$420 in court operations assessments and $560 in criminal
conviction assessments. (Gov. Code, § 70373, subd. (a); § 1465.8,
subd. (a); People v. El (2021) 65 Cal.App.5th 963, 967 [“The trial
court was required to impose . . . a $30 criminal conviction
assessment under Government Code section 70373, and a $40
court operations assessment under . . . section 1465.8”].)
Accordingly, we order the abstract of judgment to be corrected to
reflect the proper amount of assessments. (People v. Castellanos
(2009) 175 Cal.App.4th 1524, 1530 [“Because the seven additional
assessments, surcharge, and penalties are mandatory, their
omission may be corrected for the first time on appeal”].) In
addition, we direct that the minute order from the resentencing
hearing, which did not reference any of the assessments or fines
imposed, be modified to show all such assessments and their
correct amounts.
15
DISPOSITION
The judgment is modified to impose a sentence of 16
months on count 19 to run consecutive to the 25 years to life
sentence imposed in connection with count 6. The judgment is
modified further to reflect that the total amount owed in court
operations assessments is $420 and the total amount owed in
criminal conviction assessments is $560. As so modified, the
judgment is affirmed. The clerk of the superior court is directed
to deliver an amended abstract of judgment reflecting the
modifications to the Department of Corrections and
Rehabilitation, and to correct the May 9, 2022, minute order as
specified in this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.
16