People v. Poliquin CA3

Filed 5/11/23 P. v. Poliquin CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Tehama)
----
THE PEOPLE, C097042
Plaintiff and Respondent, (Super. Ct. No. 20CR-002507)
v.
ROBERT PAUL POLIQUIN, SR.,
Defendant and Appellant.
A jury found defendant Robert Paul Poliquin, Sr., guilty of two counts of burglary
and one count of vandalism. Following this court’s remand to the trial court for
resentencing, defendant urged the trial court to impose the low term under Penal Code
section 1170, subdivision (b)(6)1 because his childhood trauma was a contributing factor
in committing the burglary. He further urged dismissal of a prior strike under section
1385, subdivision (c) and reconsideration of certain assessments the trial court did not
orally pronounce at his original sentence. The trial court reimposed the same sentence
1 Further statutory references are to the Penal Code unless otherwise indicated.
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and restitution fines. Defendant made no specific objections to the resentencing decision
in the trial court. We affirm the judgment but order the abstract of judgment corrected to
strike the assessments because the trial court never imposed them.
FACTUAL AND PROCEDURAL BACKGROUND
A jury found defendant guilty of burglarizing two storage units—the Olive Grove
storage unit and the Fig Lane storage unit—and of vandalizing the door to the Fig Lane
unit. (People v. Poliquin (Mar. 21, 2022, C093906) [nonpub. opn.] (Poliquin).)
Defendant admitted a previous conviction under the Three Strikes law (§§ 667, subds.
(b)-(i); 1170.12). At sentencing, the trial court granted defendant’s motion to dismiss his
prior strike under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 as to one of
the burglary convictions, but it denied the motion with respect to the other burglary
conviction, citing defendant’s criminal history and the injuries that could have been
caused by the crime. The court sentenced defendant to prison for six years eight months
(three years doubled to six pursuant to the Three Strikes law for one burglary conviction,
plus a consecutive eight months for the other burglary conviction, and a concurrent 30
days for the vandalism). The trial court stated it would “reserve jurisdiction over
restitution, but [would] also order restitution fines as outlined in the probation report.” In
addition to those restitution fines, the abstract of judgment reflects that defendant pay the
following assessments: a $78 theft fine pursuant to section 1202.5, an $80 court security
fee pursuant to section 1465.8, and a $60 criminal conviction fee pursuant to Government
Code section 70373.
On his first appeal, we agreed with defendant that section 654 prohibited him from
being sentenced for both burglary of the Fig Lane storage unit and vandalism of the door
to that unit. (Poliquin, supra, C093906.) We remanded for the trial court to resentence
defendant “in full exercise of its independent discretion, including to exercise the
discretion conferred by section 654.” (Id. at [p. 17], as mod. Apr. 1, 2022.) We declined
to address defendant’s concerns regarding the assessments because they would be
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considered anew in resentencing. (Ibid.) At resentencing, the trial court stayed the
vandalism conviction under section 654 but denied both defendant’s request to strike the
prior strike as to the burglary conviction under section 1385, subdivision (c) and
defendant’s request to impose the low term on that conviction under section 1170,
subdivision (b)(6). Although represented by counsel, defendant personally questioned
the court’s decision, and the court directed him to speak to his counsel who did not
otherwise state any objections.
Defendant filed a timely notice of appeal. On appeal, defendant argues the court
erred in refusing to impose the low term under section 1170, subdivision (b)(6)2 and in
declining his request to strike his prior strike under section 1385, subdivision (c).
Defendant also argues the assessments should be stricken. We address each argument in
turn.
DISCUSSION
I
The trial court did not err in refusing to impose the low term under section 1170,
subdivision (b)(6)
Section 1170, subdivision (b) applies when the trial court imposes a judgment of
imprisonment, and the statute specifies three possible terms, generally described as the
upper, middle, and low terms. (§ 1170, subd. (b)(1).) The court must impose the low
term if the defendant’s psychological, physical, or childhood trauma was a “contributing
2 To the extent defendant contends the trial court erred in imposing the upper term
under section 1170, subdivision (b)(1) and (2), that contention is forfeited. Defendant did
not make this argument before the trial court upon resentencing. The failure to object on
this ground below forfeits his appellate challenge here. (People v. Garcia (2010)
185 Cal.App.4th 1203, 1218 [“ ‘Claims of error relating to sentences “which, though
otherwise permitted by law, were imposed in a procedurally or factually flawed manner”
are waived on appeal if not first raised in the trial court.’ ” (Italics omitted.)].) Thus,
defendant’s associated argument that the trial court “failed to set forth on the record the
facts and reasons for imposing the upper term” is also forfeited.
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factor in the commission of the offense” unless the court finds that “the aggravating
circumstances outweigh the mitigating circumstances [such] that imposition of the lower
term would be contrary to the interests of justice.” (§ 1170, subd. (b)(6).)
Defendant contends the trial court lacked awareness of its duties under section
1170, subdivision (b)(6) and therefore failed to exercise any discretion under that
provision. We disagree. In support of resentencing, defendant submitted a sentencing
brief and argued section 1170, subdivision (b)(6) required imposition of the low term
based on the childhood trauma he experienced as evidenced at the first sentencing
hearing. The People countered that defendant’s legal argument attempting to link
childhood trauma to his current pattern of criminality lacked supporting, credible
evidence in the record. The People further argued defendant’s criminal history and the
lack of mitigating factors supported the original sentence. At the resentencing hearing,
the trial court stated it “consider[ed] everything” and “agreed with the People . . . in
regards to the childhood trauma issue.” These circumstances demonstrate the trial court
applied the applicable law. (People v. Stowell (2003) 31 Cal.4th 1107, 1114 [absent an
affirmative showing to the contrary, we presume the trial court was aware of and
followed the applicable law].)
Defendant next argues that even if the trial court was aware of the standards under
section 1170, subdivision (b)(6), it erred because it failed to explicitly state a finding that
defendant’s childhood trauma was not a contributing factor in the commission of the
burglary or that aggravating circumstances outweighed mitigating circumstances. But we
may properly infer such a finding from the record. Based on the written and oral
arguments the trial court considered for purposes of resentencing, the court’s statement
that it agreed with the People regarding childhood trauma allows us to infer such a
finding, so there is no error.
Defendant’s related contention that the trial court prejudicially erred in failing to
state the specific facts and reasons for not choosing the low term under section 1170,
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subdivision (b)(5) also falls short but for a different reason. Defendant failed to raise this
objection at resentencing; thus, the argument is forfeited. (People v. Scott (1994)
9 Cal.4th 331, 356; People v. Bautista (1998) 63 Cal.App.4th 865, 868 [“defendant
cannot complain for the first time on appeal about the court’s failure to state reasons for a
sentencing choice”].) Defendant fares no better in his position that he lacked the
opportunity to object at resentencing. While he personally questioned the trial court’s
decision, he made no specific objection as to the court’s purported error. (People v. de
Soto (1997) 54 Cal.App.4th 1, 4 [“a defendant’s objections regarding claimed sentencing
mistakes must be sufficiently specific and meaningful to allow the trial court to correct
the errors . . . the sentencing judge has no obligation, when faced with an omnibus
objection, to inquire further in an effort to ferret out the basis for the objection as it may
exist in the mind of defense counsel”].) Furthermore, the trial court directed him to his
counsel who made no objection. (See People v. Sanchez (1977) 72 Cal.App.3d 356, 359
[“ ‘California law has been interpreted to permit the trial court to ignore the defendant
and to solely address his or her counsel’ ”]; People v. Powell (2011) 194 Cal.App.4th
1268, 1297 [finding defendant forfeited his claim that trial court failed to state reasons for
its sentencing choices where court asked, “ ‘Is there anything further for the record,’ ”
and defense counsel replied, “ ‘No, sir’ ”].)
Nevertheless, defendant insists that any finding by the trial court that there was no
connection between the crime and his childhood trauma is not supported by substantial
evidence. We review the evidence in the light most favorable to the People and presume
the existence of every fact the trier could reasonably deduce from the evidence in support
of the judgment. (People v. Gerson (2022) 80 Cal.App.5th 1067, 1079, citing People v.
Jones (1990) 51 Cal.3d 294, 314.)
Applying this standard, defendant’s position lacks merit. While the trial court was
presented with evidence at the sentencing and resentencing hearings that defendant
experienced trauma as a child, we do not reweigh the court’s finding of a lack of a
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connection between that trauma and the crimes at issue. The only attempts to make that
link came from defendant in legal arguments that it was logical to conclude that his
criminal conduct was a direct result of the trauma he experienced as a child and in the
two statements he submitted in support of resentencing. In those statements, defendant
asserted the abandonment, addiction, and abuse he experienced as a child created low
self-esteem and self-worth. He further described an expectation early in life that he
would eventually serve time behind bars because people told him he “was bad” and just
like his incarcerated father. The trial court was in the best position to determine the
credibility of these statements and give them the weight they deserved.
II
The trial court correctly did not apply section 1385, subdivision (c) to dismiss
defendant’s strike under the Three Strikes law
Section 1385, subdivision (c) requires the trial court to dismiss an enhancement if
it is in furtherance of justice and requires the court to consider and afford great weight to
evidence offered by the defendant to prove any of the specified mitigating circumstances.
(§ 1385, subd. (c)(1), (2).) Defendant argues an enhancement under this provision
includes a strike conviction, and the trial court therefore erred by not considering
evidence to support mitigating circumstances in determining whether to dismiss his prior
strike. Defendant is mistaken. We recently held “the Three Strikes law is not an
enhancement” under section 1385, subdivision (c), but rather “an alternative sentencing
scheme for the current offense.” (People v. Burke (2023) 89 Cal.App.5th 237, 243.)
Thus, we find no error in the trial court’s refusal to apply section 1385, subdivision (c) to
defendant’s strike.
III
The assessments must be stricken from the abstract of judgment
The parties agree the trial court never orally pronounced the following
assessments appearing on defendant’s abstract of judgment: the theft fine under section
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1202.5, the court security fee under section 1465.8, and the criminal conviction fee under
Government Code section 70373. But the People argue that defendant agreed to these
assessments or waived their oral pronouncement. Not so. While the records from
defendant’s original sentencing hearing indicate that defendant waived formal
arraignment, they do not indicate he waived oral pronouncement of the judgment.
(People v. Prater (1977) 71 Cal.App.3d 695, 702 [waiver of arraignment for judgment
does not obviate trial court’s duty to orally pronounce judgment].) Generally, only the
oral pronouncement constitutes the judgment, and any divergence in the minutes or
abstract of judgment is presumed clerical error. (People v. Mitchell (2001) 26 Cal.4th
181, 185; People v. Scott (2012) 203 Cal.App.4th 1303, 1324.) We exercise our inherent
power to order correction of the abstract of judgment by striking them. (Mitchell, at
p. 185.)
DISPOSITION
The judgment is affirmed. The trial court shall prepare a corrected abstract of
judgment by omitting the theft fine (§ 1202.5), the court security fee (§ 1465.8), and the
criminal conviction fee (Gov. Code, § 70373) and forward a certified copy to the
Department of Corrections and Rehabilitation.
/s/
MESIWALA, J.
We concur:
/s/
DUARTE, Acting P. J.
/s/
BOULWARE EURIE, J.
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