Filed 3/24/21 P. v. Sisemore 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F080155
Plaintiff and Respondent,
(Fresno Super. Ct. No. F19901049)
v.
LLOYD CURTIS SISEMORE, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Arlan L.
Harrell, Judge.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, and Lewis
A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
INTRODUCTION
Appellant and defendant Lloyd Curtis Sisemore pleaded no contest to failing to
register as a sex offender and admitted two prior strike convictions and six prior prison
term enhancements. The court dismissed one prior strike and imposed a second strike
term.
On appeal, defendant contends, and the People concede, that four of the prior
prison term enhancements must be stricken because of the subsequent amendments to
Penal Code1 section 667.5, subdivision (b). Defendant further argues the court
improperly ordered him to pay a restitution fine and other fees without determining his
ability to pay such amounts, based on People v. Dueñas (2019) 30 Cal.App.5th 1157
(Dueñas).
We will strike the four one-year terms imposed for the enhancements and
otherwise affirm.
FACTS2
In 1980, defendant was convicted of rape by force in violation of former section
261, subdivision 2, in Solano County, based on an offense committed in 1977. He was
initially committed to Atascadero State Hospital, and then sentenced to three years in
prison and ordered to register as a sex offender pursuant to section 290. He was released
on parole in January 1981.3
In June 1981, defendant was convicted of burglary in Oregon and placed on
probation.
1 All further statutory citations are to the Penal Code unless otherwise indicated.
2A preliminary hearing was held in this case, but the transcript is not part of the
appellate record. We thus rely on the pleadings and probation report for the factual and
procedural background for this case.
Former section 261, subdivision 2, previously defined the offense of “forcible”
3
rape. (People v. West (1999) 70 Cal.App.4th 248, 254; People v. Hopkins (1992) 10
Cal.App.4th 1699, 1702.)
2.
In August 1981, he was found in violation of parole in the rape case and returned
to prison. He was released in November 1981.
In December 1981, defendant was convicted of petty theft with a prior conviction
and placed on probation. In January 1982, he was again found in violation of parole in
the rape case and returned to prison. He was released in May 1982. He again violated
parole and was returned to prison and discharged from parole in May 1983.
In 1982 and 1986, defendant was convicted of burglary and theft in Arizona, and
burglary in Oregon, and sentenced to prison.
In 1987, defendant was convicted of petty theft with a prior conviction and
sentenced to three years in prison.
In 1989, defendant was convicted of burglary and sentenced to four years in
prison.
In 1991, defendant was convicted of rape by force in violation of former section
261, subdivision 2, in Fresno County, sentenced to 13 years in prison, and again ordered
to register as a sex offender pursuant to section 290. He was released on parole several
times, repeatedly violated parole, and returned to prison to finish his term.4
“Until its amendment in 1980, former section 261, subdivisions 2 and 3 defined
4
rape as an act of sexual intercourse under circumstances where the person resists, but
where ‘resistance is overcome by force or violence’ or where ‘a person is prevented from
resisting by threats of great and immediate bodily harm, accompanied by apparent power
of execution ....’ [¶] The Legislature amended section 261 in 1980 to delete most
references to resistance. (Stats.1980, ch. 587, § 1, p. 1595.) In pertinent part, the statute
now defines rape as ‘an act of sexual intercourse accomplished with a person not the
spouse of the perpetrator, under any of the following circumstances: ... [¶] (2) Where it
is accomplished against a person’s will by means of force or fear of immediate and
unlawful bodily injury on the person or another.’ ” (People v. Barnes (1986) 42 Cal.3d
284, 292, & fns. 6 & 8, fn. omitted.)
The current version of section 261, subdivision (a)(2) defines the offense of rape
when “accomplished against a person’s will by means of force, violence, duress, menace,
or fear of immediate and unlawful bodily injury on the person or another.”
3.
In 2003, defendant was convicted of failing to register as a sex offender in
violation of section 290, subdivision (g)(2), and sentenced to six years in prison. He was
released on parole several times, repeatedly violated parole, and returned to prison to
finish his term.
In 2012, defendant was convicted of misdemeanor failing to register his residence
in violation of section 290.011, subdivision (a), and given a two-year conditional
sentence.
In 2014, defendant was convicted of failing to register in violation of section
290.015, subdivision (a) and sentenced to seven years in prison. He released on parole
several times, and repeatedly violated parole and returned to prison to finish his term.
On March 29, 2018, defendant was released on parole. He violated the terms in
October and November 2018.
The current charges
Jorge Castro, defendant’s parole agent, reported his performance on parole was
poor and he had violations for absconding, not participating in GPS monitoring, and
removing his GPS device. Defendant was referred to the sex offender treatment program
and failed to report.
On or about January 15, 2019, defendant’s parole agent placed him in a mental
health residential placement located on East Magill Avenue in Fresno. Defendant was
outfitted with a GPS device. At that time, defendant registered as a sex offender at that
address, and signed and initialed the form that stated he understood the registration
requirements, and that he must register in person with the law enforcement agency having
jurisdiction over his location within five working days upon coming into, or when
changing his address or transient location, within any city, county, or city and county in
which he is residing or locate.
4.
On January 18, 2019, at approximately 1:18 a.m., defendant removed and disabled
his GPS device, and left the residential placement. He never returned, and he never
updated his registration address after he left.
Later, on January 18, 2019, a warrant was issued for defendant’s arrest for his
parole violation.
On January 28, 2019, defendant’s parole agent notified an investigator with the
Fresno Police Department’s sexual offender unit that defendant disabled his GPS device.
On January 28, 2019, the investigator responded to East Magill Avenue,
defendant’s last known registration location, and contacted the house manager of the
residence. The manager stated defendant removed his GPS device and left the residence
approximately three days after he had been placed there and had not returned.
On February 6, 2019, defendant was arrested on the parole violation, found in
possession of methamphetamine, and admitted that he had used alcohol and
methamphetamine.
On February 8, 2019, the investigator again spoke with the house manager, who
reported defendant had never returned to the mental health placement. The investigator
determined defendant never updated his address after he left the East Magill address.
PROCEDURAL HISTORY
On July 2, 2019, an information was filed that charged defendant with count 1, a
violation of section 290.013, subdivision (a), failure to file a change of address between
January 28 and February 6, 2019 as mandated by section 290, based on his prior
conviction for violating 261.2 in Solano County in 1980; and his conviction for violating
former section 261, subdivision 2, in Fresno County in 1991.5
5 Section 290.013, subdivision (a) states: “A person who was last registered at a
residence address pursuant to the Act who changes his or her residence address, whether
within the jurisdiction in which he or she is currently registered or to a new jurisdiction
inside or outside the state, shall, in person, within five working days of the move, inform
the law enforcement agency or agencies with which he or she last registered of the move,
5.
It was alleged defendant had two prior strike convictions, based on the same two
prior rape convictions, and that he had six prior prison term enhancements. (§ 667.5,
subd. (b)).
Amended information and plea hearing
On August 12, 2019, the parties advised the court they were ready for trial but also
discussing a resolution. The court called for a recess for the parties to further address the
matter.
When the court reconvened, it accepted an amended information for filing that
corrected the dates alleged for the six prior prison term enhancements: rape in 1980;
petty theft with a prior in 1987; burglary in 1989; rape in 1991; and failing to register in
2003 and 2014.
Defense counsel said defendant would plead no contest to count 1 and admit the
special allegations as alleged in the amended information. The court acknowledged that
defendant was pleading “straight up” to the charges, with a maximum sentence of 31
years to life.
The court stated that it did not believe that the third strike term of 25 years to life,
plus six years, “would be a fair and just sentence in this case” given the conduct alleged,
but it declined to make any determination about the sentence it would impose under it
reviewed the probation report about his prior record and the current offense.
Thereafter, defendant pleaded no contest to count 1, and admitted the two prior
strike convictions and six prior prison term enhancements. He was advised that he would
be again required to register as a sex offender under section 290, could face a fine up to
$10,000, and the court had sole discretion to determine his ultimate sentence.
the new address or transient location, if known, and any plans he or she has to return to
California.
6.
Sentencing hearing
On September 10, 2019, the court convened the sentencing hearing. Defendant
requested the court dismiss the prior strike convictions. The court stated it was “still
convinced that the nature of the conduct in this case does not warrant … 31 years to life,”
and asked for argument on whether to dismiss the prior strike convictions.
Defense counsel asked the court to dismiss at least one of defendant’s prior strike
convictions because the older offense was committed in 1977, the conviction occurred in
1980, and it was about 40 years old. Counsel further argued the current charge was “a
technical violation” and “really an act of omission and not updating his residency,” but
conceded there was evidence that defendant cut off his GPS monitor and left the
residential placement.
The prosecutor requested the third strike term of 25 years to life based on
defendant’s history of violent sex offenses and recidivism, argued the 1980 conviction
was not remote given defendant’s numerous probation and parole violations and
subsequent convictions, and defendant was a danger to society because he refused to
comply with any treatment programs while on probation and parole.
The court rejected defense counsel’s assertion that failing to register was a
“technical” violation because the section 290 orders exist “so that a person who has
shown a history of the same type of violence acts continues to not register and not make
their whereabouts known to law enforcement as required by law and when an individual
has been placed in custody at least twice for failing to do the very thing he has now
admitted to failing to do again. This is extremely troubling.”
Defendant addressed the court and said his main problem was drugs, and he
intended to register but had “the time calculations messed up in my head.”
The court trailed the matter to consider the arguments.
On September 11, 2019, the court reconvened the sentencing hearing, and again
found the third strike term of 25 years to life plus six years would be “disproportionate to
7.
the actual conduct of [defendant] in this case.” The court recognized that “it would take a
significant act of discretion” to dismiss any of the prior strike convictions based on his
prior acts of violence and failures to comply with opportunities to obtain help for his
alleged drug and/or alcohol problems.
The court decided to exercise its discretion to dismiss the 1980 prior strike
conviction, impose the prior prison term enhancements, and sentence defendant to an
aggregate term of 12 years in prison. “The Court intends to exercise its discretion
notwithstanding the defendant's noncompliance with the very simple terms of registration
based upon the age of the 1977 strike conviction.”
The prosecutor objected to the court’s decision to dismiss one prior strike
conviction based on the nature and seriousness of defendant’s prior rape convictions.
The court acknowledged the objection but dismissed the 1980 prior strike
conviction pursuant to section 1385 because of the age of the offense. The court imposed
an aggregate term of 12 years based on the upper term of three years for count 1, doubled
to six years as the second strike term, plus six one-year terms for the prior serious felony
enhancements.
The court stated it was aware that it had discretion to dismiss the section 667.5,
subdivision (b) allegations, but declined to do so “given the defendant's history and his
performance on parole when he had been granted parole,” and it had already dismissed
the prior strike conviction. “It is this Court’s intent and hope that the defendant will
remain in custody for as long as this term will keep him in custody.”
The court ordered defendant to register as a sex offender pursuant to section 290.
In a separate matter, the court found defendant violated parole, and imposed time served
for that allegation.
The court imposed a $3,600 restitution fine (§ 1202.4, subd. (b)) and suspended
the parole revocation fine of $3,600 (§ 1202.45). It also imposed a $40 court security fee
(§ 1465.8) and a $30 criminal conviction assessment (Gov. Code, § 70373).
8.
Defendant’s counsel asked the court to “suspended those fines, given
[defendant’s] age and inability to pay.” The court denied the motion:
“Given the period of time for which [defendant] will be in custody, the
Court is aware that [defendant] will be in custody, the Court is aware that
[defendant] will be allowed to earn money while in custody, so he may be
able to make money in order to pay a portion of those fines. I fully
understand that he is going into custody and remains in custody now, but he
will have the ability to make good on some of those fines that are imposed.
So I will decline the invitation to suspend the fines at this point.”
On October 15, 2019, defendant filed a notice of appeal.
DISCUSSION
I. The Prior Prison Term Enhancements
Defendant contends, and the People agree, that four of the six prior prison term
enhancements must be stricken because of the subsequent amendments to section 667.5,
subdivision (b), since the following underlying convictions were not for sexually violent
offenses: petty theft with a prior conviction in 1987 (§ 666); burglary in 1989 (§ 459);
and failing to register in 2003 and 2014 (§ 290, subd. (g); 290.015, subd. (a)).
Effective January 1, 2020, Senate Bill No. 136 (2019–2020 Reg. Sess.) amended
section 667.5, subdivision (b), to provide that the one-year prior prison term enhancement
only applies when there is a prior separate prison term for a sexually violent offense as
defined in Welfare and Institutions Code section 6600, subdivision (b). (Stats. 2019,
ch. 590, § 1.)
“By eliminating the one-year enhancement for prior prison terms that were not
imposed for sexually violent offenses, the newly amended section reduces the
punishment for such offenses. [¶] Because [the defendant’s] conviction is not yet final,
he is entitled to the retroactive benefit of the change in law.” (People v. Winn (2020) 44
Cal.App.5th 859, 872–873.)
In addition, the People state the matter may not be remanded for resentencing,
“because the trial court imposed the maximum possible sentence it could after striking
9.
[his] strike conviction, and a sentence could not be reached that was no longer than the
original if the court withdrew striking the strike conviction,” and “the remedy is for this
court to strike the four prior prison term enhancements.”6
II. The Restitution Fine, Fees, and Assessments
Defendant contends the court improperly overruled his objections to the order to
pay the restitution fine, fees, and assessments even though he did not have an ability to
pay these amounts in violation of Dueñas.
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.)7
We disagree with the holding in Dueñas and find the matter need not be remanded
for further findings. As 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 restitution fines, fees, and assessments in a
particular case are grossly disproportionate and thus excessive. (Aviles, at pp. 1068–
1072.) Under that standard, the fines and fees 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.)
6 Defendant’s case does not fall within the narrow category of negotiated
dispositions addressed in People v. Stamps (2020) 9 Cal.5th 685 and People v. Hernandez
(2020) 55 Cal.App.5th 942, petition for review granted, January 27, 2021, S265739,
where the prosecution could withdraw from the plea agreements since the enhancements
subject to dismissal were part of the indicated sentence. In this case, the court declined to
give an indicated or stipulated sentence at the time of defendant’s plea, and the
enhancements were not part of the plea agreement.
7 The 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.)
10.
Even if we agreed with Dueñas, we would still reject defendant's constitutional
claims and find any error arising from the court’s denial of his ability to pay objection
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; People v.
Jones (2019) 36 Cal.App.5th 1028, 1030–1031; Aviles, supra, 39 Cal.App.5th at
pp. 1075–1077.)
“ ‘ “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.)
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.) As noted by the trial court,
there is nothing in the record to show that defendant would be unable to satisfy the fine
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
Defendant’s admissions and the 4 one-year terms imposed for the section 667.5,
subdivision (b) enhancements are stricken based on his convictions for petty theft with a
prior in 1987; burglary in 1989; and failing to register in 2003 and 2014.
11.
The trial court shall prepare and forward to all appropriate parties a certified copy
of an amended abstract of judgment.
In all other respects, the judgment is affirmed.
12.