People v. Talley

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. MA065271, Shannon Knight, Judge. Affirmed.

William L. Heyman, 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, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and David F. Glassman, Deputy Attorney General, for Plaintiff and Respondent.

PERLUSS, P. J.

In a prior appeal we affirmed Clinton John Talley's felony convictions for making a criminal threat and stalking and several misdemeanor convictions, reversed 16 other misdemeanor convictions as time-barred and remanded for resentencing. In this appeal following his resentencing, Talley contends the trial court abused its discretion in denying his request to dismiss a five-year prior serious felony conviction enhancement; his aggregate sentence of almost 20 years-11 years in state prison plus nearly nine years in county jail-constitutes cruel and/or unusual punishment in violation of the federal and state Constitutions; and the court's imposition of fines, fees and assessments over his objection he lacked the ability to pay them violated due process. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Talley's Convictions and His Prior Appeal

A jury convicted Talley of two felony counts, making a criminal threat (Pen. Code, § 422)^[1] and stalking (§ 646.9, subd. (a)), and 25 misdemeanor counts of violating a protective order (§ 166, subd. (c)(1)). In a bifurcated proceeding Talley waived his right to a jury trial and admitted special allegations he had suffered a prior serious or violent felony conviction under the three strikes law (§§ 667, subds. (b)-(j), 1170.12) and a prior serious felony conviction within the meaning of section 667, subdivision (a)(1). The court sentenced Talley to an aggregate state prison term of 11 years for making a criminal threat plus

5, 460 consecutive days in county jail for the misdemeanor counts.^[2]

On appeal we affirmed Talley's felony convictions and nine misdemeanor convictions and reversed 16 misdemeanor convictions as time-barred. (See People v. Talley (Aug. 20, 2019, B281571) [nonpub. opn.].) We remanded for resentencing so the trial court could exercise the full scope of its sentencing discretion, including considering whether to strike the section 667, subdivision (a)(1), enhancement pursuant to then-recent amendments to sections 667 and 1385 that became effective while Talley's initial appeal was pending. (See Stats. 2018, ch. 1013, §§ 1, 2; People v. Stamps (2020) 9 Cal.5th 685, 693.) We also directed the trial court to hold a hearing, if Talley requested one, to address Talley's arguments concerning his ability to pay any applicable fines, fees and assessments.

2. Talley's Resentencing Hearing

At resentencing the court declined Talley's request to strike the section 667, subdivision (a)(1), enhancement, concluding it was not in furtherance of justice to do so. The court sentenced Talley to 11 years in state prison-the upper term of three years,

doubled under the three strikes law, plus five years for the prior serious felony conviction under section 667, subdivision (a)(1)- plus 3, 276 consecutive days in county jail (364 days for each misdemeanor offense to be served consecutively to the felony count and to each other). The court stayed sentence on the stalking offense pursuant to section 654.

In refusing Talley's request to strike the section 667, subdivision (a)(1), enhancement and exercising its discretion to impose the misdemeanor counts consecutive to each other and to the felony count of making a criminal threat, the court stated, "The defendant's prior convictions are numerous. His prior performance on probation has been unsatisfactory. The court has grave concerns for the victim in this case. The court believes that there is an excellent chance that, upon his release, Mr. Talley will make efforts to locate her to harm or even potentially kill her. So it is the court's intention to have Mr. Talley remain in custody for the longest possible available time."

The court next addressed Talley's ability to pay fines, fees and assessments in accordance with this court's decisions in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) and People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano). Initially the court stated it intended to impose fines, fees and assessments in the same amounts as at the original sentencing hearing. Talley's counsel objected, claiming his client was unable to pay them. Talley's counsel asserted his client was indigent and unable to work and earn prison wages because he was legally blind and suffered from a heart problem. He presented no evidence to support these arguments or his general assertion concerning Talley's inability to pay. After asking about Talley's ownership of a motorcycle, which was discussed at trial, and

being told by Tally's counsel simply that Talley did not have any money, the court responded, "I'm not inclined to waive all of it. I'm not inclined to make a finding at this time of inability to pay anything. However, I will reduce the amount of the victim restitution fund fine. [Pen. Code, § 1202.4, subd. (b).] It will be in the amount of $300, rather than $1, 200," the amount the court had ordered at the initial sentencing hearing. The court imposed, but stayed, a parole revocation fine in the same amount. (Pen. Code, § 1202.45.) In addition, the court reduced the assessment amounts imposed at the initial sentencing hearing: It imposed an operations assessment (Pen. Code, § 1465.8) of $440, reduced from $1, 040, and a court facilities assessment (Gov. Code, § 70373) of $330, reduced from $780. Talley's counsel told the court again, "My client still cannot pay any of those fees. This will be a burden on him when he gets out of custody." The court acknowledged Talley's objection, but declined to change its ruling.

DISCUSSION

1. The Court Did Not Abuse Its Discretion in Denying Talley's Request To Dismiss the Five-year Prior Serious Felony Enhancement; Talley Has Not Demonstrated Ineffective Assistance of Counsel

The trial court may in its discretion dismiss a prior serious felony enhancement found true under section 667, subdivision (a)(1), in furtherance of justice. (§§ 667, subd. (f)(2); 1385, subd. (b)(1); People v. Stamps, supra, 9 Cal.5th at p. 693.) In making this determination, the trial court considers "'the nature of the offense and the offender.'" (People v. Brugman (2021) 62 Cal.App.5th 608, 638; accord, People v. Shaw (2020) 56 Cal.App.5th 582, 587 ["[s]ection 1385 allows courts to ensure

'that persons are sentenced based on the particular facts of the offense and all the circumstances[;] [i]t enables the punishment to fit the crime as well as the perpetrator'"]; cf. People v. Carmony (2004) 33 Cal.4th 367, 378 [court considers all the circumstances relating to the offense and the offender in deciding whether to dismiss in furtherance of justice a strike found true under the three strikes law].)

We review the court's decision to deny a motion to strike a five-year prior serious felony enhancement for abuse of discretion. (People v. Brugman, supra, 62 Cal.App.5th at p. 638; People v. Shaw, supra, 56 Cal.App.5th at p. 587.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could disagree with it." (People v. Carmony, supra, 33 Cal.4th at p. 377; see id. at pp. 376-377 [absent a showing the sentencing decision was irrational or arbitrary, "'"the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review"'"].)

Talley contends the court did not address a number of relevant factors in exercising its sentencing discretion, primarily because his attorney did not present them, and argues his counsel's omissions constituted ineffective assistance of counsel. In particular, he asserts his counsel failed to argue, and thus the trial court did not consider, (a) he had committed his offenses while incarcerated and unlikely to carry out his threat to harm the victim; (b) imposition of the high term of three years, doubled under the three strikes law, adequately punished and enhanced his sentence without the additional five-year prior serious felony enhancement; (c) he suffered from mental and emotional

problems at the time he committed the offenses but was now benefitting from psychotropic medication; (d) he would be more than 50 years old at the time of his release even if the five-year enhancement were dismissed and studies show criminality declines significantly after age 50; (e) it was highly unlikely that Talley would risk a third strike sentence of 25 years to life by contacting the victim again, as Talley himself advised the court during the sentencing hearing; and (f) California was moving away from draconian sentencing schemes. Had his counsel made these arguments, he asserts, it is reasonably probable the court would have exercised its discretion more favorably toward Talley and dismissed the five-year serious felony enhancement.

Contrary to Talley's contention, the court, which presided over Talley's trial and original sentencing hearing, did consider Talley's criminal record, the nature of the offenses for which he was convicted, and information presented by Talley's counsel that his client was currently benefitting from psychotropic medication. In response, the court highlighted that Talley had committed his...