People v. Robinson CA5

Filed 11/19/20 P. v. Robinson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT

THE PEOPLE,
F078077
Plaintiff and Respondent,
(Tuolumne Super. Ct.
v. No. CRF51748)

MARLON JOSEPH ROBINSON,
OPINION
Defendant and Appellant.

THE COURT*
APPEAL from a judgment of the Superior Court of Tuolumne County. Donald I.
Segerstrom, Jr., Judge.
Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General,
Catherine Chatman and Angelo S. Edralin, Deputy Attoneys General, for Plaintiff and
Respondent.
-ooOoo-

* Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
 INTRODUCTION
Appellant/defendant Marlon Joseph Robinson was convicted of two felonies and
sentenced to a second strike term. On appeal, he contends the court abused its discretion
when it denied his request to dismiss the prior strike conviction pursuant to Penal Code
section 13851 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
He further argues the court improperly imposed a restitution fine without finding he had
the ability to pay those amounts based on People v. Dueñas (2019) 30 Cal.App.5th 1157
(Dueñas). We affirm.
FACTS
On the evening of November 10, 2016, Andrew Tolley walked into Applebee’s
restaurant in Sonora and paid for a take-out order with a $100 bill. The restaurant’s host
examined the bill, realized it was counterfeit, and called the Sonora Police Department.
Tolley left the restaurant without taking the order and got into an SUV in the parking lot.
Sonora Police Officer Naomi Kneip responded to the restaurant. As she arrived,
the restaurant’s employees were outside and pointed to the SUV as it was driving away.
Kneip activated her patrol car’s signal lights and tried to conduct a traffic stop, but the
vehicle failed to stop. Kneip followed the SUV through the shopping center’s parking
lot, and it eventually stopped.
Officer Kneip testified there were four people in the SUV: Tamika Hicks was
driving, Tryonza Gresham was in the front passenger seat, and Tolley and defendant
Marlon Joseph Robinson were in the back seat; they were all from Stockton.
An employee from Applebee’s identified Tolley as the person who passed the
counterfeit bill. Gresham was found in possession of counterfeit currency. Hicks was
cited and released for driving without a license.

1 All further statutory references are to the Penal Code unless otherwise stated.

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 Officer Kneip testified that when she asked defendant for his name, he identified
himself as “Tramaine” Robinson (Tramaine), falsely using his brother’s name. She
conducted a records check and determined Tramaine was on active probation with an
outstanding misdemeanor arrest warrant. Kneip arrested defendant on Tramaine’s
warrant and asked if he had any drugs, needles, or weapons on his person. Defendant
said no.
Additional officers arrived to assist Officer Kneip, and the SUV was searched.
Defendant’s identification and an Acer brand computer were found in a closed
compartment in the back seat where defendant had been sitting. Kneip compared the
photograph on defendant’s identification photograph with a photograph of Tramaine that
she received from a records check, determined the photographs did not match, and
Tramaine was defendant’s brother. Kneip also determined defendant had active warrants
for his own arrest.
There were multiple bottles of Grey Goose and Ciroc vodka in the car that still had
security caps from Safeway. There were also multiple bags of dog food, packages of
coffee, and canned food in the SUV, along with baggies of methamphetamine and heroin,
and used hypodermic needles. There were two televisions in the SUV’s rear
compartment. A paper cup in the front passenger door’s cup holder contained several
counterfeit $50 and $100 bills.
California Highway Patrol Officer Eli Dillon asked defendant if he had anything
on him that he could not bring into jail, such as narcotics, knives, or guns. Defendant
again said no.
Officer Kneip noticed a dealer’s “paper” plate covered the SUV’s metal license
plate. She ran a check on the actual license plate and determined it was registered to
Judith Williams, defendant’s mother. Ms. Williams was contacted, and she said that
defendant was driving her vehicle and not Tramaine.

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 Defendant was transported to jail and searched during the booking process. The
deputy found a bag of methamphetamine in his left sock and counterfeit bills in his right
sock.
The officers determined that earlier on November 10, 2017, there were reported
thefts of alcohol, dog food, and other items from Safeway, and a computer and two
televisions from Walmart; the property was found in the SUV. The surveillance videos
from the two Sonora stores showed Tolley walk around, put merchandise in a cart, and
walk out without paying. The Safeway video showed Hicks and defendant walking
around the store but not taking anything.
Defense evidence
Defendant testified at trial that he had a dog grooming and boarding business and
made enough money to support his family and child. He admitted that he had a robbery
conviction in 2002.
Defendant said that on November 10, 2017, he argued with his wife and left home
to cool off. He was driving his mother’s car and went to a lounge, met some friends
there, and drank. He and his friends got back into his mother’s car, but he let Ms. Hicks
drive because he had been drinking. They went to the Chicken Ranch Casino in Sonora
to gamble, and Tolley lost all his money.
Defendant testified they left the casino and Tolley said he wanted to do some
shopping. They went to Safeway and Walmart, but he did not steal any property, help
anyone steal, or know about or have a plan to steal any merchandise from either store.
He walked around Safeway and bought a lottery ticket, realized he won, and went to a
cashier to cash it. He left Safeway and went by himself to another store while they went
to Walmart. He never went into Walmart.
After he finished at the other store, defendant rejoined his friends in the parking
lot, and got back into the vehicle because did not have an alternative way to get home.
The group drove around in his mother’s car. He noticed the computer and televisions in

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the back of the SUV but did not know how they were obtained, did not ask if they were
stolen, and thought there was a sale because it was close to the Black Friday sales. When
the police stopped the SUV, he gave his brother’s name because he had an outstanding
warrant.
Defendant testified Tolley gave him the counterfeit bill found in his sock to help
with gas money. He often puts money in his sock. He did not remember having
methamphetamine in his sock because he was intoxicated.
PROCEDURAL BACKGROUND
On May 31, 2017, a consolidated information was filed with the following
allegations. Defendant Robinson and codefendants, Tyronza Gresham and Andrew
Tolley, were jointly charged with count I, grand theft of the Acer computer and two
televisions from Walmart (§ 487, subd. (a)); count II, receiving stolen property, based on
the computer and two televisions (§ 496, subd. (a)); count III, misdemeanor making,
passing or possessing counterfeit bills (§ 476); and count IV, conspiracy to commit grand
theft at Walmart (§§ 182, subd. (a)(1), 487, subd. (a)).
Defendant was separately charged with count V, bringing narcotics into a jail
(§ 4573, subd. (a)); and count VI, false personation (§ 529, subd. (a)(3)).
Defendant Robinson, and codefendants Tolley and Tamika Hicks were jointly
charged with count VII, conspiracy to commit grand theft and commercial burglary at
Safeway (§§ 182, subd. (a)(1), 487, subd. (a), 459); count VIII, grand theft from Safeway
of multiple bottles of vodka, cans of Spam, cans of corned beef, packages of instant
coffee, and packages of dog food (§ 487, subd. (a)); and count IX, second degree
commercial burglary of Safeway (§ 459).
As to counts I through IV, it was alleged defendant had one prior strike conviction
for robbery (§ 211) in San Joaquin County in 2002 (§ 667, subds. (b)–(j), § 1170.12).

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Verdicts
On May 31, 2017, defendant’s jury trial began; he was tried separately for the
charges against him.
On June 7, 2017, the jury found defendant guilty of count V, bringing narcotics
into a jail, and count VI, false personation. He was found not guilty of counts I, IV, and
VIII. The jury was unable to reach verdicts on the remaining counts. The court declared
a mistrial and the prosecutor dismissed those charges. Defendant admitted the prior
conviction allegation.
Defendant’s request to dismiss the prior strike conviction
On July 21, 2017, defendant filed a request for the court to dismiss his prior strike
conviction for robbery from 2002. Defendant asserted he was 19 years old when he
committed the offense and 20 years old when he was convicted. Defendant stated that
after the 2002 conviction, he had two parole violations and felony convictions for
violating section 4573, bringing narcotics into jail, in 2004 and 2007. He had four
misdemeanor convictions between 2011 and 2017.
Defendant argued he fell outside the spirit of the “Three Strikes” law and a second
strike term would be inappropriate because his prior robbery conviction occurred 15
years ago; his current convictions were based on the nonviolent offenses of giving a false
identification and possessing about a half gram of methamphetamine when he was
booked into jail; he had his own business and a place to live at the time of his arrest; and
he had the support of his family during the trial, including his brother whose identity he
had claimed. Defendant also argued imposition of a second strike term based on his prior
robbery conviction would violated the constitutional prohibition against double jeopardy.
The prosecutor’s opposition argued defendant was not outside the spirit of the
Three Strikes law based on the nature and circumstances of the current offenses; his prior
robbery conviction included his admission to being armed with a firearm (§ 12022,
subd. (a)(1)); and he had a lengthy record of felony and misdemeanor convictions

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beginning in 2000 including theft in 2000 and 2017 (§ 484), three felony convictions for
petty theft with a prior conviction in 2001 and 2002 (§ 666), felony possession of drugs
in prison in 2004 (§ 4573.8), and felony bringing drugs into prison in 2007 (§ 4573.8)
while he was serving time for his robbery conviction; resisting an officer in 2016
(§ 148.9), and making or circulating unauthorized money in 2016 (§ 648). He was
released on parole while serving the sentence for robbery, absconded in 2012 and 2013,
and returned to prison after his second parole violation.
Sentencing hearing
On August 9, 2017, the court addressed defendant’s motion to dismiss his prior
strike conviction. The court accepted an offer of proof that defendant attended adult
school while in custody, completed a GED, and engaged in a methadone program in
2007.
The court acknowledged that defendant was young when he committed the armed
robbery. The court reviewed the probation report about the offense and remarked it was a
“straight up” armed robbery that defendant committed with his brother, and then denied
any involvement. The court found defendant had an extensive criminal history, many of
his offenses were primarily theft-related, and that he committed prior offenses of bringing
or possessing drugs in prison while serving his robbery sentence.

“But the thing that is unmistakable to the Court here is that once the strike
offense is committed, the defendant commits two new felony violations,
which is the same violation that he’s convicted of this time, some form of
[section] 4573, either possessing contraband in a jail or prison or bringing
contraband or drugs into a custodial facility. So this is his third offense in
barely – relatively rapid succession.”
The court found there was only a four-year period when defendant did not commit
additional offenses. His next offense was “astonishingly similar to … the offenses here”
of giving a false identification of an officer and possessing counterfeit money. The court
also found defendant was “extraordinarily fortunate” that the jury in this case acquitted

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him of some of the more serious charges and was unable to reach verdicts on the other
counts. “The Court can’t essentially turn a blind eye to the evidence that was presented
in the trial that while he’s in the car … it is his mother’s car, indicating that he had some
responsibility for the car, and the car is just loaded with stolen property.”

“Now, he was not convicted of any of that stuff; granted. But he was
convicted of the crimes that the jury found true and convicted him of. And
what I’m looking at … this sort of connects over to his prospects because
the defendant tells me he started a business, he has custody of his son, he’s
doing all these good things. What in the world is he doing in Sonora with
these three people who appear – even if he was completely unaware of what
they were doing, I mean, they’re out on, basically, a stealing spree here in
Sonora and he happens to be with them. Why? [¶] Now, [defendant] can
say just – ‘I was just with my friends.’ But in terms of his prospects, it sort
of cuts the other way. If he’s … got custody of his son and has a business
and is getting his life on track, why isn’t he in Stockton keeping his life on
track being with his son? So there is a question there that the Court can’t
answer.”
The court denied defendant’s motion to dismiss because it could not find he was
outside the spirit of the Three Strikes law.

“… I will accept as true the references that [defense counsel] makes about
the defendant’s character, that he was at least at some point trying to get his
life back on track. But it is clear to the Court that something happened in
that effort that derailed his process or derailed getting his life back on track
because he’s in possession of methamphetamine, he gives a false name, he
is in … a car with a bunch of people who are apparently out on a stealing
spree, and he’s at least 60 miles from his home in a different county. That
is not consistent with the representations that the defendant makes about his
character, if I accept them as true. [¶] And so what are his prospects if he
continues in this way? His prospects are very poor.”
The court sentenced defendant to an aggregate term of nine years four months
based on the upper term of four years, doubled to eight years as the second strike term for
count V; plus a consecutive term of eight months (one-third the midterm) doubled to 16
months as the second strike term for count VI.

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 The court imposed a restitution fine of $2,700 (§ 1202.4, subd. (b)) and suspended
the parole revocation fine of $2,700 (§ 1202.45). The court did not impose any other fees
or assessments.
DISCUSSION
I. The Court’s Denial of Request to Dismiss the Prior Strike Conviction
Defendant contends the court abused its discretion when it denied his request to
dismiss the prior strike conviction pursuant to section 1385.
A. Section 1385
The trial court has discretion to dismiss a prior strike conviction in furtherance of
justice under section 1385. (§ 1385, subd. (a); Romero, supra,13 Cal.4th at pp. 529–530.)
In considering whether to exercise its discretion, the trial court “must consider whether,
in light of the nature and circumstances of his present felonies and prior serious and/or
violent felony convictions, and the particulars of his background, character, and
prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part,
and hence should be treated as though he had not previously been convicted of one or
more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
“[T]he three strikes law not only establishes a sentencing norm, it carefully
circumscribes the trial court’s power to depart from this norm and requires the court to
explicitly justify its decision to do so. In doing so, the law creates a strong presumption
that any sentence that conforms to these sentencing norms is both rational and proper. [¶]
In light of this presumption, a trial court will only abuse its discretion in failing to strike a
prior felony conviction allegation in limited circumstances. For example, an abuse of
discretion occurs where the trial court was not ‘aware of its discretion’ to dismiss
[citation], or where the court considered impermissible factors in declining to dismiss.
[Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).)
We review the court’s decision under section 1385 under the deferential abuse of
discretion standard. (Carmony, supra, 33 Cal.4th at pp. 375–377; People v. Williams,

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supra, 17 Cal.4th at p. 162.) “ ‘It is not enough to show that reasonable people might
disagree about whether to strike one or more’ prior conviction allegations. [Citation.]
Where the record is silent [citation], or ‘[w]here the record demonstrates that the trial
court balanced the relevant facts and reached an impartial decision in conformity with the
spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled
differently in the first instance’ [citation]. Because the circumstances must be
‘extraordinary … by which a career criminal can be deemed to fall outside the spirit of
the very scheme within which he squarely falls once he commits a strike as part of a long
and continuous criminal record, the continuation of which the law was meant to attack’
[citation], the circumstances where no reasonable people could disagree that the criminal
falls outside the spirit of the three strikes scheme must be even more extraordinary.”
(Carmony, supra, 33 Cal.4th at p. 378.)
B. Analysis
Defendant asserts the court abused its discretion because its ruling was not
“grounded in sound judgment” since he deserved “the chance to become a productive
citizen and make a life with his family.” Defendant acknowledges his history of theft-
related offenses, but argues it was “clear” he had “a debilitating drug habit” and it would
be more beneficial for society to place him in a residential drug program instead of state
prison.
Defendant’s double jeopardy argument is meritless. “Recidivist statutes do not
impose a second punishment for the first offense in violation of the double jeopardy
clause of the United States Constitution. [Citation.]” (People v. White Eagle (1996) 48
Cal.App.4th 1511, 1520; People v. Sipe (1995) 36 Cal.App.4th 468, 488–489.) “[T]he
use of prior convictions to enhance a later sentence under a recidivism statute, such as the
Three Strikes law, does not offend double jeopardy principles because ‘the enhanced
punishment imposed for the later offense “is not to be viewed as either a new jeopardy or
additional penalty for the earlier crimes,” but instead as “a stiffened penalty for the latest

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crime, which is considered to be an aggravated offense because a repetitive one.” ’
[Citations.]” (Allen v. Stratton (C.D. Cal. 2005) 428 F.Supp.2d 1064, 1078, quoting
Witte v. United States (1995) 515 U.S. 389, 400.)
In addition, the court did not abuse its discretion when it declined to dismiss
defendant’s prior strike conviction. As noted by the People, the trial court was well
aware of its discretion, extensively reviewed defendant’s record, and explained defendant
was not outside the scope of a second strike sentence because of the seriousness of his
prior conviction for armed robbery, his commission of the current charges, his presence
in his mother’s car in the midst of stolen property, his decision to associate with people in
another county who were on a crime spree, falsely identifying himself as his brother, his
concealed possession of narcotics and counterfeit bills when he was booked into jail, and
his prior commission of two similar offenses of giving a false identification and
possession of drugs while in custody.
II. The Restitution Fine
Defendant relies on Dueñas and argues the restitution fine was imposed in
violation of his due process rights because the court failed to find he had the ability to
pay. Defendant argues the fine must be vacated or the matter remanded for the court to
conduct a hearing on his ability to pay.
Dueñas held that “due process of law requires the trial court to conduct an ability
to pay hearing and ascertain a defendant’s present ability to pay” before it imposes any
fines or fees. (Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1167.)2 As we explained in
People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles), we believe Dueñas was wrongly
decided and an Eighth Amendment analysis is more appropriate to determine whether

2The California Supreme Court is currently considering whether trial courts must
consider a defendant’s ability to pay before imposing or executing fines, fees, and
assessments; and if so, which party bears the applicable burden of proof. (See People v.
Kopp (2019) 38 Cal.App.5th 47, 94–98, review granted Nov. 13, 2019, S257844.)

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restitution fines, fees, and assessments in a particular case are grossly disproportionate
and thus excessive. (Aviles, at pp. 1068–1072.) Under that standard, the fine imposed in
this case are not grossly disproportionate to defendant’s level of culpability and the harm
he inflicted, and thus not excessive under the Eighth Amendment. (Aviles, at p. 1072.)
More importantly, even if Dueñas applied to this case, defendant has forfeited any
challenge to his alleged inability to pay the restitution fine of $2,700 under section
1202.4, subdivision (b). When the court imposes a restitution fine greater than the $300
statutory minimum amount, “[s]ection 1202.4 expressly contemplates an objection based
on inability to pay.” (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153 (Frandsen);
Aviles, supra, 39 Cal.App.5th at p. 1073.)
While Dueñas had not been decided at the time of defendant’s sentencing hearing,
defendant had the statutory right to object to the $2,700 restitution fine and demonstrate
his alleged inability to pay, and such an objection “would not have been futile under
governing law at the time of his sentencing hearing. [Citations.]” (Frandsen, supra, 33
Cal.App.5th at p. 1154; Aviles, supra, 39 Cal.App.5th at pp. 1073–1074.)
Even if we agreed with Dueñas, however, we would still reject defendant’s
constitutional claims and find any error arising from the court’s failure to make an ability
to pay finding was harmless beyond a reasonable doubt since defendant has the ability to
pay the fines and fees imposed in this case. (Chapman v. California (1967) 386 U.S. 18,
24; Aviles, supra, 39 Cal.App.5th at pp. 1075‒1077; People v. Jones (2019) 36
Cal.App.5th 1028, 1030–1031.)

“ ‘ “Ability to pay does not necessarily require existing employment
or cash on hand.” [Citation.] “[I]n determining whether a defendant has
the ability to pay a restitution fine, the court is not limited to considering a
defendant’s present ability but may consider a defendant’s ability to pay in
the future.” [Citation.] This include[s] the defendant’s ability to obtain
prison wages and to earn money after his release from custody. [Citation.]’
[Citations.]” (Aviles, supra, 39 Cal.App.5th at p. 1076.)

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 We can infer from the instant record that defendant has the ability to pay the
aggregate amount of fines and fees from probable future wages, including prison wages.
(Aviles, supra, 39 Cal.App.5th at p. 1076; People v. Ellis (2019) 31 Cal.App.5th 1090,
1094; People v. Douglas (1995) 39 Cal.App.4th 1385, 1397.) There is nothing in the
record to show that defendant would be unable to satisfy the fines and fees imposed by
the court while serving his prison term, even if he fails to obtain a prison job. While it
may take defendant some time to pay the amounts imposed in this case, that circumstance
does not support his inability to make payments on these amounts from either prison
wages or monetary gifts from family and friends during his prison sentence. (See, e.g.,
People v. Potts (2019) 6 Cal.5th 1012, 1055–1057; People v. Lewis (2009) 46 Cal.4th
1255, 1321; People v. DeFrance (2008) 167 Cal.App.4th 486, 505.)
DISPOSITION
The judgment is affirmed.

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