Filed 10/27/20 P. v. Marshall CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B301840
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BA435692)
v.
PATRICK MARSHALL,
Defendant and Appellant.
APPEAL from a post-judgment order of the Superior Court of
Los Angeles County, Frederick N. Wapner, Judge. Affirmed.
Law Office of G. Martin Velez and G. Martin Velez for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney
General, Kenneth C. Byrne, Supervising Deputy Attorney General, and
Christopher G. Sanchez, Deputy Attorney General, for Plaintiff and
Respondent.
Defendant Patrick Marshall appeals from the judgment following
resentencing on remand from the prior appeal in this case. As we
stated in our prior opinion, defendant identified as a man at the time of
the offenses, and identified as a woman at the time of trial, using the
name “Priscilla Marshall.” We will refer to defendant using “she” and
“her.”
Defendant contends that the resentencing court abused its
discretion by imposing the upper term of imprisonment on count 1 for
first degree residential robbery (Pen. Code, § 211, count 1),1 without
stating factors in aggravation and mitigation. She also contends the
court abused its discretion because it elected not to strike a firearm
enhancement (§ 12022.53, subd. (b)) on count 1, or another firearm
enhancement (§ 12022.5, subd. (a)) on count 2 for assault with a firearm
(§ 245, subd. (a)(1)). We disagree with both contentions and affirm the
judgment.
FACTUAL BACKGROUND
On March 4, 2015, defendant and a man named Roger visited the
apartment of the victims, Brian Hunter and Danielle Banks. Hunter
had occasionally purchased marijuana from defendant. When
defendant and Roger were seated at a table with Hunter inside the
apartment, Hunter offered to light up some marijuana. Defendant then
pulled out a handgun, pointed it in Hunter’s face, asked if Hunter
1 Undesignated statutory references are to the Penal Code.
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wanted to be shot in the kneecaps, and stated that she wanted
“everything, all the money.”
Defendant told Roger to take a laptop that was on the table.
Roger placed the laptop in a backpack. Hunter stated that he did not
have anything and that defendant could take whatever she wanted.
Defendant then pointed the gun at Banks and asked Hunter how much
he loved Banks. Defendant pulled back the slide of the pistol, allowing
a round to fall to the floor. Hunter fled from the apartment out the
front door. Defendant and Roger chased after Hunter as far as the front
door, but then turned and ran out through the back patio. Using a
neighbor’s phone, Hunter called 911. He later discovered that some of
his video equipment was missing.
PROCEDURAL BACKGROUND
In an information filed on February 8, 2016, defendant was
charged with first degree residential robbery (§ 211, count 1) and
assault with a semiautomatic firearm (§ 245, subd. (b), count 2). The
information alleged that defendant personally used a firearm during
the commission of the robbery (§ 12022.53, subd. (b)), and personally
used a firearm in during the commission of the assault (§ 12022.5, subd.
(a)). The information also alleged that defendant had suffered a prior
conviction for assault with a firearm (§ 245, subd. (a)(2)), which
constituted a strike under the Three Strikes law (§§ 667, subds. (b)–(j),
1170.12) and a serious felony (§ 667, subd. (a)(1)). Finally, the
information alleged defendant had served five prior prison terms, and
had not remained free of prison custody for a period of five years after
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the conclusion of each term (§ 667.5, subd. (b)). On January 18, 2017,
the prosecution amended the information to change count 2 to assault
with a firearm (§ 245, subd. (a)(2)).
Following a jury trial, defendant was convicted of both counts with
true findings on each firearm use allegation. Defendant admitted the
prior strike conviction and the five prior convictions and prison terms,
which the trial court found to be true.
During the initial sentencing hearing on August 24, 2017, the
People requested that the court impose the maximum sentence.
Despite that request, the court sentenced defendant to an overall term
of 27 years imprisonment, consisting of the middle term of six years on
count 2 as the base term,2 doubled to 12 years for the prior strike, plus
four years for the firearm enhancement (§ 12022.5, subd. (a)); 16
months on count 1 (one-third the middle term), doubled to 32 months
for the prior strike, plus three years four months for the firearm
enhancement (§ 12022.53, subd. (b)); and five years for the prior serious
felony (§ 667, subd. (a)(1)). The court imposed and stayed a one-year
term for the prior prison term related to the prior serious felony
(§ 667.5, subd. (d)) and struck the remaining four prior prison terms
pursuant to section 1385.
2 The court incorrectly sentenced defendant on count 2 based on the triad
of 3, 6, and 9 years in section 245, subdivision (b) (the originally charged
count), rather than triad of 2, 3, and 4 years in section 245, subdivision (a)(2)
(the amended count).
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Defendant appealed from the judgment based on the court’s
imposition of an unauthorized sentence (i.e., by imposing the incorrect
middle term of imprisonment on count 2). He also requested remand
for the court to exercise its discretion to strike or impose the firearm
enhancements under Senate Bill No. 620. We agreed with both
contentions, and remanded the matter for resentencing.
Prior to the hearing on remand, defendant filed a motion in
support of resentencing, and requested that the court impose an overall
term of 14 years 8 months (comprised of the middle term on count 2,
doubled for the prior strike, plus one-third the middle term on count 1).
Defendant argued that the term of imprisonment was supported by her
upbringing;3 sexual reassignment procedures yet to be completed; the
recent enactments of Senate Bill Nos. 620 and 1393, which grant the
court discretion to strike the firearm enhancements and prior serious
felony enhancement; and the prosecution’s offered plea bargains before
and during trial.
At the resentencing hearing on October 4, 2019, defense counsel
reiterated the same arguments that had been made in the motion. The
prosecutor argued that the court should not strike the five-year prior or
either firearm enhancement based on defendant’s conduct during the
crimes, and defendant’s priors, one of which was for violating section
3 According to counsel, defendant’s “youth, adolescent years, and 20’s
[were] essentially completely lost as a result of the breakdown of [her] family,
failed social programs, a lack of proper psychological evaluation, and
rampant drug use.”
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245, subdivision (a)(2), the same crime for which defendant was
convicted in on count 2.
Recognizing that it could not sentence defendant to a term greater
than 27 years, the court decided that the “correct” sentence was 22
years, which included the five-year prior serious felony conviction and
firearm enhancements. The court selected count 1 as the base term
based on its higher triad (i.e., 3, 4, and 6 years) than the triad for count
2 (i.e., 2, 3, and 4 years). In light of that selection, defense counsel
stated that the overall sentence based on the middle term in count 1
would be 23 years, consisting of four years, doubled for the prior strike,
plus five years for the prior serious felony conviction, and 10 years for
the section 12022.53, subdivision (b) true finding.
The court responded: “The bottom line answer is 22. . . . [¶] First
of all, as to the court’s discretion to strike the gun allegations, I
completely agree with [the prosecutor]. If there was ever a case for
imposing gun allegations, this is it. [¶] This is a home invasion
robbery, and the gun was pointed first at the first victim, albeit at his
knees, and then [defendant] turned the gun on the girlfriend,
chambered a round, and in great show of bravado, while she was doing
that, the first victim ran out into the hallway. And so the gun was used
separately on two different people. So the court exercises its discretion
not to strike the firearms allegations. [¶] With regard to the five-year
prior, I’m going to exercise my discretion to strike it because it’s the
easiest way to get to 22, and avoids all of the legal complications . . . .
[¶] So as to count 1, is the base term. The court selects the midterm of
four years, that is doubled pursuant to the Three Strikes law for a total
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of eight. Plus ten years pursuant to 12022.53(b).” The court continued:
“the court chooses to exercise consecutive sentence on count 2, it’s a
separate victim completely. So the court imposes the mid[-]term of
three years on count 2, but it’s consecutive to count 1, so it’s one-third of
that, that’s one year. It’s doubled pursuant to the Three Strikes law for
a total of two, plus the low term of three years pursuant to 12022.5(a)
through (d), which is three years consecutive, one-third of that is one,
doubled is two.”
After having an off-the-record, unreported discussion with
counsel, the court resentenced defendant because it erroneously doubled
the firearm enhancement on count 2. Ultimately, the court imposed the
upper term of six years on count 1, “and the reason for the high term is
that it’s got this prior that I intend to strike, and it’s the easiest way, as
I said, to get to 22.” The court doubled the base term of six years for the
prior strike, and added 10 years for the firearm enhancement. On count
2, the court imposed the middle term of three years and the middle
term of four years for the firearm enhancement, which it ran
concurrently to count 1. The court struck the five-year prior, and struck
all of the one-year prior prison terms.
Defendant filed a timely notice of appeal.
DISCUSSION
1. Standard of Review and Governing Law
A trial court has broad discretion to make essential sentencing
determinations, including the selection of a term other than the middle
statutory term by weighing and balancing aggravating and mitigating
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factors. (Cal. Rules of Court, rule 4.406; People v. Sandoval (2007) 41
Cal.4th 825, 847; People v. Giminez (1975) 14 Cal.3d 68, 71–72.)4
“Indeed, a trial court may ‘minimize or even entirely disregard
mitigating factors without stating its reasons.’ [Citation.]” (People v.
Lai (2006) 138 Cal.App.4th 1227, 1258.) In making any claim of
sentencing error, the burden is on the party attacking the sentence to
show an abuse of discretion—that is, a decision that is “so irrational or
arbitrary that no reasonable person could agree with it.” (People v.
Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) We presume that the
trial court considered all of the relevant factors unless the record
affirmatively shows the contrary. (People v. Kelley (1997) 52
Cal.App.4th 568, 582 (Kelley).)
When selecting a term of imprisonment, “the sentencing judge
must select the upper, middle, or lower term . . . as provided in section
1170(b) and these rules.” (Rule 4.420(a).) In doing so, the judge “may
consider circumstances in aggravation or mitigation, and any other
factor reasonably related to the sentencing decision,” and must state its
reasons for selecting one of the three authorized terms of imprisonment.
(Rules 4.420(b), (e).) As relevant here, the court may impose an upper
term based on “a fact charged and found as an enhancement . . . only if
the court has discretion to strike the punishment for the enhancement
and does so.” (Rule 4.420(c); see ibid. [“The use of a fact of an
enhancement to impose the upper term of imprisonment is an adequate
4 Subsequent references to rules are to the California Rules of Court.
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reason for striking the additional term of imprisonment, regardless of
the effect on the total term”].) Even a single, valid aggravating factor
will suffice to justify imposition of an upper term. (People v. Cruz
(1995) 38 Cal.App.4th 427, 433.)
We need not remand for resentencing even if error has been
established, where the record clearly indicates it is not reasonably
probable the trial court would have exercised its discretion to impose a
more favorable sentence in the absence of error. (People v. DeHoyos
(2013) 57 Cal.4th 79, 155 (DeHoyos); People v. Watson (1956) 46 Cal.2d
818, 836.)
2. Imposing an Upper Term Sentence on Count 1
Defendant contends the resentencing court abused its discretion
by imposing the upper base term on count 1, because it utilized a
“results oriented” approach without consideration of factors in
mitigation and aggravation.
Defendant failed to object to the trial court’s ultimate selection of
the upper term of imprisonment, which she has raised for the first time
in this appeal. Defendant has thus forfeited the contention. (People v.
Scott (1994) 9 Cal.4th 331, 352–353; see id. at p. 353 [“Routine defects
in the [sentencing] court’s statement of reasons are easily prevented
and corrected if called to the court’s attention”].) To rebut a finding of
forfeiture, defendant relies on People v. Hoover (2000) 77 Cal.App.4th
1020 (Hoover). Hoover is readily distinguishable. In that case, “both
the prosecution and the defense offered substantial argument as to why
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defendant should or should not receive the upper term” of an
enhancement over a two-day sentencing hearing. (Id. at pp. 1030–
1031.) In this case, the resentencing court changed its initial
resentencing decision following an off-the-record discussion with
counsel, after which it stated it had incorrectly multiplied the firearm
enhancement on count 2. In light of that error, and the court’s “bottom
line” to get to an overall term of 22 years, the court changed its decision
and imposed the upper term on count 1, and a concurrent term of
imprisonment on count 2. Neither the prosecution nor defense counsel
objected.
Even if not forfeited, defendant’s contention is meritless. “A
judge’s subjective belief regarding the length of the sentence to be
imposed is not improper as long as it is channeled by the guided
discretion outlined in the myriad of statutory sentencing criteria.”
(People v. Castaneda (1999) 75 Cal.App.4th 611, 614 (Castaneda).
Castaneda is instructive. In that case, the appellate court remanded
the matter for resentencing due to an unauthorized sentence. (Id. at
pp. 612, 614 [overall term of 10 years imprisonment was unauthorized
because it included a firearm enhancement and great bodily injury
enhancement on the base term, in violation of section 1170.1].) On
remand, the trial court resentenced the defendant to an overall term of
eight years imprisonment (two years lower than the initial sentence) by
imposing the upper base term, plus four years for the firearm
enhancement. (Id. at p. 612.) The court stayed the remaining
enhancement for infliction of great bodily injury, which carried a lower
term of punishment. (Ibid.) Because the trial court did not impose that
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enhancement in the new sentence, it “was thus free to select the injury
to the victim as a factor in aggravation,” which the appellate court
found was “sufficient to justify the imposition of the high term.” (Id. at
pp. 614–615.)
The resentencing court in this case used similar logic. The court
selected the upper base term of six years in light of its decision to strike
the prior serious felony conviction enhancement: “the reason for the
high term is that it’s got this prior [for assault with a firearm] that I
intend to strike.” (See Rules 4.420(c), 4.421(b)(1) [engaging in “violent
conduct that indicates a serious danger to society” is one factor in
aggravation].) The court’s identification of “[o]ne factor in aggravation
is sufficient to justify the imposition of the high term.” (Castaneda,
supra, 75 Cal.App.4th at p. 615; accord, People v. Brown (2000) 83
Cal.App.4th 1037, 1043.)
Moreover, the record amply supports the finding that the court did
in fact consider other factors in aggravation and mitigation when
resentencing defendant. When discussing whether to strike or impose
the firearm enhancements, the court discussed defendant’s conduct
during the robbery and assault. That conduct included brandishing a
firearm and threatening both victims with death or great bodily harm.
(Rules 4.421(a)(1), (2).) As discussed, the court also sentenced
defendant to a concurrent term on count 2 despite its ability to impose a
consecutive term on that count. (Rule 4.421(a)(7).) The probation
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report listed four circumstances in aggravation,5 and no circumstances
in mitigation, while defendant’s resentencing motion mentioned factors
in mitigation (rules 4.423(b), (c)) which defense counsel echoed during
the resentencing hearing. On this record, the trial court must be
presumed to have considered those circumstances. (Rules 4.409,
4.411.5; Kelley, supra, 52 Cal.App.4th at p. 582.) And in any event, the
record shows that it is not reasonably probable the resentencing court
would have exercised its discretion to impose a more favorable sentence
in the absence of any claimed error. (DeHoyos, supra, 57 Cal.4th at
p. 155.)
3. Imposing the Firearm Enhancements
Defendant contends the resentencing court abused its discretion
by not striking or dismissing the firearm enhancements on count 1
(§ 12022.53, subd. (b)) or on count 2 (§ 12022.5, subd. (a)), or striking
the 10-year term of imprisonment for the section 12022.53, subdivision
(b) in the interest of justice. We disagree.
Senate Bill No. 620 amended sections 12022.53 and 12022.5 to
permit the trial court to strike or dismiss a firearm enhancement under
those sections “in the interest of justice.” (§§ 12022.53, subd. (h),
5 The report states that the manner in which the crimes were carried out
indicates planning, sophistication, or professionalism (rule 4.421(a)(8));
defendant has engaged in violent conduct that indicates a serious danger to
society (rule 4.421(b)(1)); defendant’s prior performance on probation or
parole was unsatisfactory (rule 4.421(b)(5)); and defendant’s prior convictions
as an adult or sustained petitions in juvenile delinquency proceedings are
numerous or of increasing seriousness (rule 4.421(b)(2)).
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12022.5, subd. (c).) During the resentencing hearing, the court stated
that it understood its discretion to impose or strike the firearm
enhancements. After considering the circumstances of defendant’s
conduct during both crimes, the court elected not to strike the
enhancements. The court’s informed judgment was not arbitrary or
capricious. (Carmony, supra, 33 Cal.4th at p. 373.)
Defendant asserts that the interest of justice compels striking
both firearm enhancements, as the overall term of imprisonment of 22
years is “grossly disproportionate” to the prosecution’s offered plea
bargains (8 years before trial, and 2 years with no strike during trial).
However, given the evidence at trial and defendant’s prior record, which
the trial court properly considered, the argument is meritless. (See In
re Lewallen (1979) 23 Cal.3d 274, 281 [“a trial court’s discretion in
imposing sentence is in no way limited by the terms of any negotiated
pleas or sentences offered the defendant by the prosecution”]; United
States v. Carter (9th Cir. 1986) 804 F.2d 508, 513 [“a defendant [who]
voluntarily chooses to reject . . . a plea bargain . . . retains no right to
the rejected sentence”].)
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DISPOSITION
The post-judgment order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
COLLINS, J.
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