People v. Moore CA2/4 ( 2023 )

Filed 10/12/23 P. v. Moore CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
THE PEOPLE, B322489
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA078625)
v.
LAMARR MOORE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Kathleen Blanchard, Judge. Affirmed as modified.
Aaron J. Schechter, 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, Wyatt
E. Bloomfield, Supervising Deputy Attorney General, and Nicholas J.
Webster, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted defendant Lamarr Moore of attempted murder, three
counts of assault, and other firearm-related offenses. Defendant asserts
multiple sentencing errors on appeal. He contends the trial court erred in:
(1) imposing the upper term on one of his firearm enhancements (Pen. Code,
§ 1170, subd. (b));1 (2) failing to dismiss all but one firearm enhancement
(§ 1385, subd. (c)(2)(B)); (3) miscalculating his presentence credits; and
(4) imposing two assessments and a restitution fine without determining
defendant’s ability to pay.
We conclude that defendant forfeited any claim of error based on the
trial court’s imposition of the upper term as well as the court’s failure to
assess defendant’s ability to pay. We further conclude the court was not
required to dismiss all but one enhancement under section 1385, subdivision
(c)(2)(B). We accept the Attorney General’s concession that the presentence
credits were miscalculated but reject defendant’s assertion the court erred in
applying all of his conduct credits to his 364-day county jail term in count 1.
We therefore modify the judgment but otherwise affirm.
PROCEDURAL BACKGROUND
We provide only the facts relevant to the issues raised on appeal.
In June 2022, a jury found defendant guilty of exhibiting a concealed
firearm in public (§ 417, subd. (a)(2)(A), count 1), four counts of felon in
possession of a firearm (§ 29800, subd. (a)(1), counts 2 and 7 through 9),
attempted murder (§§ 664/187, subd. (a), count 3), three counts of assault
with a firearm (§ 245, subd. (a)(2), counts 4 through 6), and unlawful
1 All further statutory references are to the Penal Code unless otherwise
stated.
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possession of ammunition (§ 30305, subd. (a)(1), count 10). As to counts 3
through 6, the jury found true the allegation that defendant personally used
a firearm (§ 12022.5, subd. (a)). Prior to trial, defendant admitted he had a
prior felony conviction for carrying a concealed firearm (§ 25400, subd. (a)(2))
for purposes of the felon in possession of a firearm charge.
At the sentencing hearing in July 2022, the trial court noted both
parties had stipulated that the court could use the probation officer’s report
for purposes of sentencing. The court acknowledged the “newly amended
Penal Code section 1170[, subdivision] (b)(2),” and explained that it was “now
limited to imposing a sentence that does not exceed the middle term, except
when circumstances in aggravation have been admitted by the defendant,
proven to the jury or to the court.” However, “the court can look at the
defendant’s criminal history.”
The court then sentenced defendant to an aggregate term of 27 years
and 4 months in state prison. As relevant here, the court designated count 3
(attempted murder) as the base term and sentenced defendant to the
midterm of 7 years plus the upper term of 10 years for the firearm
enhancement. The court explained that the upper term on the firearm
enhancement was imposed based on its finding the following two factors in
aggravation: “[t]he defendant has engaged in violent conduct that indicates a
serious danger to society” (Cal. Rules of Court, rule 4.421(b)(1));2 and “[t]he
defendant’s prior convictions as an adult or sustained petitions in juvenile
delinquency proceedings are numerous or of increasing seriousness” (Cal.
Rules of Court, rule 4.421(b)(2)).
2 The trial court indicated it was relying on California Rules of Court,
rules 4.421(b)(2), (b)(3). However, it is clear from the record (and to the
parties) that the court intended to reference rules 4.421(b)(1) and (b)(2).
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The court granted defendant 541 days of presentence credits, which
included 470 days of actual credits and 71 days of conduct credit. The court
then applied all 71 days of conduct credit and 293 days of actual credit to
satisfy the 364-day sentence he was to serve in county jail in count 1. After
the credit for time served, the court indicated “there will be a . . . total of 165
days of credit” remaining. The court imposed $400 in court operations
assessments, $300 in conviction assessments, and a $500 restitution fine.
Defendant filed a timely notice of appeal.
DISCUSSION
1. Imposition of the Upper Term
Defendant contends that we must vacate the sentence and remand the
matter because he did not admit, and the jury did not find true beyond a
reasonable doubt, the facts underlying the circumstances in aggravation that
the trial court relied upon in imposing the upper term for the firearm
enhancement in count 3. We agree with the Attorney General that the issue
is forfeited.
A. Senate Bill No. 567
In late 2021, Senate Bill No. 567 was signed into law, amending the
determinate sentencing scheme in section 1170, subdivision (b). Prior to the
bill’s passage, section 1170, subdivision (b), permitted sentencing courts to
impose determinate sentences comprised of either the lower, middle, or upper
terms. Sentencing courts had broad discretion to impose any of the three
terms and could make factual findings regarding aggravating or mitigating
circumstances as described in California Rules of Court, rules 4.421 and
4.423.
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On January 1, 2022, under the newly amended law, the middle term
was deemed the presumptive term of imprisonment. (§ 1170, subd. (b)(1).)
Following the enactment of Senate Bill No. 567, sentencing courts may only
impose the upper term sentence where there are circumstances in
aggravation that justify imposition of a term of imprisonment exceeding the
middle term, and the facts underlying all of the aggravating circumstances
have been stipulated to by the defendant or are found true beyond a
reasonable doubt by a jury or a trial court. (§ 1170, subds. (b)(1), (2).) As an
exception to the general rule, a trial court is permitted to rely upon a certified
record of conviction to determine prior criminality for purposes of sentencing
without submitting the prior conviction to a jury. (§ 1170, subd. (b)(3).)
B. Forfeiture
“[T]he right to challenge a criminal sentence on appeal is not
unrestricted. In order to encourage prompt detection and correction of error,
and to reduce the number of unnecessary appellate claims, reviewing courts
have required parties to raise certain issues at the time of sentencing. In
such cases, lack of a timely and meaningful objection forfeits or waives the
claim.” (People v. Scott (1994) 9 Cal.4th 331, 351, italics omitted.) The
forfeiture doctrine applies to “claims involving the trial court’s failure to
properly make . . . its discretionary sentencing choices.” (Id. at p. 353; accord,
People v. Scott (2015) 61 Cal.4th 363, 406.) For the forfeiture doctrine to
apply, the trial court must give the parties a meaningful opportunity to object
or seek clarification of potential errors in a sentence. (People v. Gonzalez
(2003) 31 Cal.4th 745, 752.)
Here, defendant was sentenced in July 2022 after Senate Bill No. 567’s
effective date. (Stats. 2021, ch. 731, eff. Jan. 1. 2022.) At sentencing, the
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parties and the trial court were aware of the newly amended section 1170.
Defendant did not object to the court’s reliance on two aggravating factors
(Cal. Rules of Court, rule 4.421(b)(1), (2)) to impose the upper term.
In a footnote, defendant resists this conclusion by contending the issue
is preserved for appellate review because his substantial rights are at stake,
citing section 1259. In In re Seaton (2004) 34 Cal.4th 193, 198, our Supreme
Court held: “Penal Code section 1259, provides: ‘Upon an appeal taken by
the defendant, the appellate court may . . . review any question of law
involved in any ruling, order, instruction, or thing whatsoever said or done at
the trial or prior to or after judgment, which thing was said or done after
objection made in and considered by the lower court, and which affected the
substantial rights of the defendant.’ (Italics added.) Thus, as a general rule,
‘the failure to object to errors committed at trial relieves the reviewing court
of the obligation to consider those errors on appeal.’ [Citations.] This applies
to claims based on statutory violations, as well as claims based on violations
of fundamental constitutional rights. [Citations.]” (Id. at pp. 197–198.)
Accordingly, defendant’s contention is forfeited on appeal.
2. Section 1385, subdivision (c)(2)(B)
In 2021, the Legislature enacted Senate Bill No. 81 (2021-2022 Reg.
Sess.) (Stats. 2021, ch. 721, § 1), amending section 1385 to set forth factors
that the trial court must consider when determining whether to exercise its
discretion to strike enhancements from a sentence in the interest of justice.
(People v. Sek (2022) 74 Cal.App.5th 657, 674.) Defendant contends that the
newly added subdivision (c)(2)(B) of section 1385 mandates dismissal of all
but one of his firearm enhancements.
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Section 1385, subdivision (c), now provides in relevant part: “(1)
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. [¶] (2) In exercising its
discretion under this subdivision, the court shall consider and afford great
weight to evidence offered by the defendant to prove that any of the
mitigating circumstances in subparagraphs (A) to (I) are present. 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.” The mitigating circumstance
relevant here provides, “Multiple enhancements are alleged in a single case.
In this instance, all enhancements beyond a single enhancement shall be
dismissed.” (§ 1385, subd. (c)(2)(B).)
Defendant argues use of the word “shall” in section 1385, subdivision
(c)(2)(B), required the trial court to dismiss all but one of his firearm
enhancements, and the court erred in failing to do so. California courts have
consistently rejected this same argument in interpreting the “‘shall be
dismissed’” language of subdivision (c)(2)(B) and the similarly worded
subdivision (c)(2)(C)3 of amended section 1385. (See People v. Mendoza (2023)
88 Cal.App.5th 287, 294–297 [rejecting appellant’s assertion that under subd.
(c)(2)(C), dismissal is required where an enhancement would result in a
prison sentence of over 20 years]; People v. Anderson (2023) 88 Cal.App.5th
233, 239–241 (Anderson) [concluding the use of the word “shall” in subd.
(c)(2)(B) and (C) is permissive, not mandatory], review granted Apr. 19, 2023,
3 Subdivision (c)(2)(C) of section 1385 states: “The application of an
enhancement could result in a sentence of over 20 years. In this instance, the
enhancement shall be dismissed.” (Italics added.)
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S278786; People v. Lipscomb (2022) 87 Cal.App.5th 9, 15–21 [rejecting
appellant’s contention the court was required to strike an enhancement
under subd. (c)(2)(C)]; People v. Walker (2022) 86 Cal.App.5th 386, 396–398
(Walker) [explaining that if the court were to interpret subd. (c)(2)(B) and (C)
as mandatory, then the existence of the mitigating factors therein “would not
‘weigh greatly’ in favor of dismissal—it would weigh dispositively”], review
granted Mar. 22, 2023, S278309.)4
We agree with our colleagues and adopt the reasoning in these cases.
Therefore, we reject defendant’s assertion that the trial court was required to
dismiss all but one firearm enhancement under subdivision (c)(2)(B) of
section 1385. The dismissal of an enhancement where “[m]ultiple
enhancements are alleged in a single case” (§ 1385, subd. (c)(2)(B)) is not
required if “dismissal of the enhancement would endanger public safety” (Id.
subd. (c)(2)).
3. Presentence Credit
The trial court awarded 541 days of presentence credits, which
consisted of 470 days of actual credit plus 71 days of conduct credit.
Defendant contends, and the Attorney General agrees, this award of
presentence credits miscalculates the actual credit he should have received
for the days he spent in custody. (§ 2900.5, subd. (a).) Based on the record,
4 In Walker, the Supreme Court granted review on a different issue:
“Does the amendment to Penal Code section 1385, subdivision (c) that
requires trial courts to ‘afford great weight’ to enumerated mitigating
circumstances (Stats. 2021, ch. 721) create a rebuttable presumption in favor
of dismissing an enhancement unless the trial court finds dismissal would
endanger public safety?” The petition for review in Anderson was
subsequently granted, and the matter was deferred pending consideration
and disposition of the issue presented in Walker.
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we agree with the parties that defendant was entitled to 472 days of actual
credit. He served two periods in custody from March 24, 2020 to March 25,
2020, and then from April 6, 2021 to July 19, 2022, the date of the sentencing
hearing. Likewise, the conduct credits must be adjusted to reflect 15 percent
of the modified actual credits. (§ 2933.1, subd. (c).) Thus, defendant was
entitled to 70 days of conduct credit. (See People v. Ramos (1996) 50
Cal.App.4th 810, 816–817 [determining that in applying the 15 percent
credit, the court should round the credit to the nearest whole number that
does not exceed 15 percent].)
Defendant does not dispute the trial court properly applied 364
presentence credits to the 364-day sentence in county jail in count 1. After
applying these presentence credits to count 1, the parties agree defendant
has 178 presentencing credits remaining (not 165 as indicated by the court).
However, defendant disagrees with the ratio of actual credits and conduct
credits used for his 364-day sentence. It appears from the abstract of
judgement that the trial court applied all of defendant’s conduct credits and
then satisfied the remainder of the 364 days with actual credits. Citing
section 2933.1, defendant argues that the court should have applied
defendant’s presentence credits to count 1 at a ratio of 75 percent actual
credits and 15 percent conduct credits. We disagree.
Section 2933.1 provides, in pertinent part, “any person who is convicted
of a [violent] felony offense . . . shall accrue no more than 15 percent of
worktime credit.” (§ 2933.1, subd. (a), italics added.) This subdivision
dictates how conduct credits are accrued, not how such credits are applied to
a sentence. Defendant cites no authority to the contrary. Moreover,
defendant readily admits in reply and at oral argument that the court’s
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allocation of the presentence credits has not prejudiced him in any way. (See
Cal. Const., art. VI, § 13.)
Therefore, we modify the judgment to reflect 178 days of presentence
credit remaining, which consists of only actual credits.
4. Assessments and Restitution Fine
At sentencing, the trial court ordered defendant to pay $400 in court
operations assessments, $300 in conviction assessments, and a $500
restitution fine. Defense counsel did not object to the imposition of these
sums or request a hearing on defendant’s ability to pay them, and the court
did not inquire into or make a finding on defendant’s ability to pay these
assessments and fines.
Citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), decided
several years before his sentencing hearing, defendant argues that the trial
court violated his right to due process by imposing these financial obligations
without first finding he had the ability to pay them. In Dueñas, the court
held that “due process of law requires the trial court to conduct an inability to
pay hearing and ascertain a defendant’s present ability to pay before it
imposes court facilities and court operations assessments under Penal Code
section 1465.8 and Government Code section 70373.” (Id. at p. 1164.) It also
held that “although Penal Code section 1202.4 bars consideration of a
defendant’s ability to pay unless the judge is considering increasing the fee
over the statutory minimum, the execution of any restitution fine imposed
under this statute must be stayed unless and until the trial court holds an
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ability to pay hearing and concludes that the defendant has the present
ability to pay the restitution fine.” (Ibid.)5
The absence of a timely objection on ability to pay grounds forfeits
defendant’s challenge to the restitution fine and assessments. (People v.
Flowers (2022) 81 Cal.App.5th 680, 687, review granted on other grounds on
Oct. 12, 2022, S276237; People v. Frandsen (2019) 33 Cal.App.5th 1126,
1153–1154; People v. Greeley (2021) 70 Cal.App.5th 609, 624.) Dueñas was
decided nearly three years before defendant’s sentencing hearing in July
2022. Defendant was thus on notice for over two years of the decision in
Dueñas and, therefore, his challenge to the assessments and restitution fine
is forfeited.
To avoid forfeiture, defendant contends the trial court failed to exercise
its discretion by holding a hearing. However, the defendant bears the burden
of raising this issue in the first instance. (People v. Castellano (2019) 33
Cal.App.5th 485, 490.) Defendant then contends the failure to assess his
ability to pay means that the resulting imposition of assessments and
restitution fine constitutes an “unauthorized sentence” that can be attacked
at any time. We disagree. (People v. Torres (2020) 44 Cal.App.5th 1081, 1085
[imposition of fines and assessments without an ability-to-pay finding is not
an “unauthorized sentence”]; People v. Avila (2009) 46 Cal.4th 680, 729
[same].) Moreover, defendant’s attempt to frame this issue as a
constitutional one does not preserve it for appeal. (People v. McCullough
5 Our Supreme Court is poised to resolve a split in authority regarding
whether Dueñas was correctly decided, having granted review in People v.
Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844,
on 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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(2013) 56 Cal.4th 589, 592–593 [forfeiture principles apply to constitutional
claims]; see also In re Sheena K. (2007) 40 Cal.4th 875, 880–881 [“‘“[n]o
procedural principle is more familiar to this Court than that a constitutional
right,” or a right of any other sort, “may be forfeited in criminal as well as
civil cases by the failure to make timely assertion of the right before a
tribunal having jurisdiction to determine it”’”].)
Defendant’s ineffective assistance of counsel claim is equally
unavailing. 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; People v. Caro (2019) 7 Cal.5th
463, 488.) Because the record does not affirmatively exclude a rational basis
for counsel’s omission, defendant fails to establish ineffective assistance of
counsel. (See People v. Mickel (2016) 2 Cal.5th 181, 198.)
In support of his alleged inability to pay, defendant points out he was
indigent and appointed counsel at trial and on appeal. However, the fact that
a defendant is represented by appointed counsel does not automatically
establish his inability to pay fines or assessments. (See e.g., People v.
Douglas (1995) 39 Cal.App.4th 1385, 1397 [noting defendant may lack the
ability to pay the costs of court-appointed counsel yet have the ability to pay
a restitution fine]; see also People v. Vournazos (1988) 198 Cal.App.3d 948,
958 [record supported finding of defendant’s ability to pay $2,180 in
restitution despite being indigent enough to qualify for court-appointed
counsel and inability to post bail].)
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DISPOSITION
The judgment is modified to reflect that defendant has 178 days of
presentence credit, and specifically 178 days of actual credit. As modified,
the judgment is affirmed. The superior court clerk is directed to prepare a
minute order and amended abstract of judgment to reflect the modification
and to forward a copy of the amended abstract of judgment to the California
Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ZUKIN, J.
WE CONCUR:
COLLINS, Acting P. J. MORI, J.
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