Opinion
E072948
11-30-2020
THE PEOPLE, Plaintiff and Respondent, v. TONY TYRONE ROGERS, Defendant and Appellant.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB10937) OPINION APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed and remanded with directions. William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
In 2001, Rogers received a sentence of life without the possibility of parole after being convicted of first degree murder with a robbery murder special circumstance—which he committed when he was 17 years old. In 2016, Rogers filed a petition for writ of habeas corpus seeking resentencing under Miller v. Alabama (2012) 567 U.S. 460 (Miller), which limited the circumstances where a juvenile may be sentenced to life without the possibility of parole. The trial court granted the petition and, after a resentencing hearing, re-imposed the original sentence.
On appeal, Rogers argues the trial court erred by failing to state the reasons for re-imposing the upper term for the firearm use enhancement and by failing to recalculate his custody credits. He also argues the abstract of judgment reflects the wrong sentence for his robbery conviction. We conclude Rogers's last two arguments have merit. We therefore remand with directions to amend the abstract of judgment to reflect the correct custody credit award and robbery sentence, but affirm in all other respects.
I
FACTS
On April 20, 1996, while Rogers held a gun on employees in the kitchen, his codefendant robbed the patrons of a restaurant and took money from the cash register. One of the patrons, a retired police officer, came into the kitchen and tried to take Rogers's gun from him. Rogers shot him several times, fatally wounding him. However, the victim was able to shoot Rogers in the chest with the gun the former kept in an ankle holster. Rogers was found shortly after the crimes 50 yards from the restaurant with a bullet wound to the stomach. During the struggle with the victim, Rogers at one point knocked the victim to the ground, stood over him, and fired several shots at him.
We take the facts from our nonpublished decision affirming Rogers's judgment of conviction, People v. Rogers (Dec. 31, 2001, E029342) 2001 Cal.App.Unpub. Lexis 299 [nonpub. opn.] (Rogers I).
On February 2, 2001, the jury convicted Rogers of first degree murder (Pen. Code, § 187, subd. (a), unlabeled statutory citations refer to this code) and second degree robbery (§ 211) and found true the robbery murder special circumstance (§ 190.2, subds. (a)(17)), as well as allegations Rogers used a gun in committing both offenses (§ 12022.5, subd. (a)). The trial court sentenced Rogers to life without the possibility of parole for the murder and the upper term of 10 years for the firearm use enhancement to run consecutively. The court also imposed the midterm of three years for the robbery and another upper term for the firearm use enhancement on that offense, but stayed both sentences under section 654. We affirmed the judgment in a nonpublished opinion later the same year. (See Rogers I, supra, E029342.)
In 2012, the United States Supreme Court decided Miller, supra, 567 U.S. 460. That case held the Eighth Amendment to the United States Constitution "forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders," but that courts may impose such a sentence after considering several factors. (Id. at pp. 479-481, italics added.)
In 2016, Rogers filed a petition for writ of habeas corpus seeking resentencing in light of Miller. The People conceded Rogers was entitled to resentencing.
On June 7, 2019, the trial court held a resentencing hearing and, after weighing several mitigating and aggravating circumstances, decided to re-impose the original sentence. The court found the following were mitigating factors—Rogers had a dysfunctional and abusive home life, he suffered from intellectual deficits and mental health issues, and he did not have a significant juvenile criminal history. In addition, his criminal partner was an adult who was "a dominant individual, dominant participant," in the robbery. As aggravating factors, the court noted that Rogers had armed himself with a gun, that he killed the victim after he no longer posed a threat, that he was solely responsible for the decision to kill the victim, and that his decision demonstrated callousness and cruelty. The court also noted Rogers was only four months from his 18th birthday at the time of the crime, which weakened any claim his culpability was mitigated by his youth.
After taking all these factors into account, the trial court felt the case was "relatively close," with "factors on each side of the scale." Nevertheless, it chose to resentence Rogers to the same terms as his original sentence, in part because it felt his decision to shoot the victim after disabling him was "particularly egregious and difficult to overcome." The court also awarded Rogers "all of his custody credits since his reception into the Department of Corrections." Rogers timely appealed.
II
ANALYSIS
Rogers argues the trial court erred by failing to state its reasons for imposing the upper term for the firearm use enhancement and by failing to recalculate his custody credits. He also argues the abstract of judgment must be amended to reflect the correct sentence on his robbery conviction. The People agree the robbery sentence in the abstract of judgment is incorrect, but argue Rogers's other two arguments lack merit.
The People also argue Rogers forfeited his right to challenge the alleged sentencing error because he failed to object at the trial court level. Because we find Rogers's argument fails on the merits, we decline to address this argument.
A. The Firearm Enhancement
As an initial matter, the People argue Rogers forfeited his right to challenge the court's alleged failure to state reasons for its sentencing decision on the enhancement because he did not object below. (See People v. Scott (1994) 9 Cal.4th 331, 356 (Scott) ["complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal"].) Rogers responds that he didn't forfeit his challenge because his counsel never had the opportunity to object. To support this argument, he points to a moment when the court was explaining its sentencing decision and his counsel apparently tried to get the court's attention by saying, "Your Honor," but the court continued speaking.
While Rogers is correct that a party cannot forfeit a claim on appeal unless they had "a meaningful opportunity to object" below, he is wrong that he did not have such an opportunity. (Scott, supra, 9 Cal.4th at p. 356.) First of all, we don't know that defense counsel was going to object when he tried to get the court's attention. Second, and more importantly, counsel could simply have made another attempt to get the court's attention. It's not as if counsel informed the court that he had an objection to make and the court refused to let him speak. Simply put, a failure to assert oneself is not tantamount to being prohibited from doing so. We therefore agree with the People that Rogers forfeited his right to challenge the trial court's sentencing decision.
But even if Rogers hadn't forfeited his challenge, we would find it fails on the merits. "When the court imposes a sentence for a felony pursuant to Section 1170 or subdivision (b) of Section 1168, the court shall also impose, in addition and consecutive to the offense of which the person has been convicted, the additional terms provided for any applicable enhancements. If an enhancement is punishable by one of three terms, the court shall, in its discretion, impose the term that best serves the interest of justice, and state the reasons for its sentence choice on the record at the time of sentencing." (§ 1170.1, subd. (d).) The requirement that a court state its reasons for imposing a specific sentence for an enhancement is reiterated in California Rules of Court, rule 4.428(a), which states "[i]f an enhancement is punishable by one of three terms, the court must . . . state the reasons for its sentence choice on the record at the time of sentencing." California Rules of Court, rule 4.406(a) clarifies that "[i]f the sentencing judge is required to give reasons for a sentence choice, the judge must state in simple language the primary factor or factors that support the exercise of discretion," and these reasons "must be delivered orally on the record."
When stating its reasons for imposing a certain sentence, a court may identify aggravating circumstances it feels warrant imposing that sentence. (Cal. Rules of Court, rule 4.420(b).) "Neither section 1170 nor the California Rules of Court attempt to provide an inclusive list of aggravating circumstances. Thus, a trial court is free to base an upper term sentence upon any aggravating circumstance that (1) the court deems significant and (2) is reasonably related to the decision being made." (People v. Moberly (2009) 176 Cal.App.4th 1191, 1196.)
"A trial court's decision to impose a particular sentence is reviewed for abuse of discretion and will not be disturbed on appeal 'unless its decision is so irrational or arbitrary that no reasonable person could agree with it.' " (People v. Jones (2009) 178 Cal.App.4th 853, 860-861.) "[A] trial court will abuse its discretion . . . if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision." (People v. Sandoval (2007) 41 Cal.4th 825, 847.) "Even if a trial court has stated both proper and improper reasons for a sentence choice, 'a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.' " (People v. Jones, at p. 861.)
Here, the court thoroughly explained, over the course of 10 transcript pages, the competing mitigating and aggravating factors that led to its decision to re-impose the original sentence. A significant aggravating factor for the court was "the callousness and the cruelty demonstrated by Mr. Rogers in standing over the disabled body of [the victim] and then shooting him at close range five additional times." This alone shows the trial court considered at least two of the aggravating factors listed in California Rules of Court, that "[t]he crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness," and that "[t]he victim was particularly vulnerable." (Rule 4.421(a)(1)-(3).) "Only one aggravating factor need be cited to support imposition of an upper term." (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1374.)
Rogers argues the court's factor weighing applied only to its decision to re-impose a sentence of life without the possibility of parole, not to its decision to re-impose the upper term for the gun enhancement. According to Rogers, the court was required to state additional or different reasons regarding its sentencing decision on the enhancement.
There is no rule that a trial court finely parse its sentencing determination and perform a factor balancing test for each component of the sentence. However, assuming for the sake of argument that Rogers is correct, he still wouldn't be entitled to remand because he cannot demonstrate prejudice. Remand is unnecessary in this context if "it is 'not reasonably probable that a more favorable sentence would have been imposed in the absence of the error.' " (Scott, supra, 9 Cal.4th at p. 355.) Here, it's not reasonably probable that the trial court would have imposed a lesser sentence on the enhancement if it had made a separate statement of reasons relating specifically to the enhancement. This is because all of the mitigating and aggravating factors the trial court considered related to the murder conviction and the firearm enhancement equally.
Rogers argues there is a reasonable probability of a lesser sentence on the enhancement because the court recognized there were many mitigating factors in his case. But this argument hurts, not helps Rogers case. The fact the court identified several mitigating sentencing factors shows that it thoroughly considered all of the relevant circumstances. That the court felt the balance of mitigating and aggravating circumstances was close doesn't mean there's a reasonable probability it would have selected a lighter sentence on the enhancement. Rather, it underscores how thoroughly the court considered the relevant surrounding circumstances before arriving at its final sentencing conclusion. "In light of the trial court's express consideration of the factors in aggravation and mitigation, its pointed comments on the record, and its deliberate choice of the highest possible term for the firearm enhancement . . . remand in these circumstances would serve no purpose but to squander scarce judicial resources." (People v. McVey (2018) 24 Cal.App.5th 405, 419.)
B. Custody Credits
Next, Rogers argues the trial court erred by failing to recalculate his custody credits. The People argue recalculation was unnecessary because his sentence was not ultimately modified. Both parties cite the same case to support their positions, People v. Buckhalter (2001) 26 Cal.4th 20 (Buckhalter). As in that case, we find both parties are partially correct.
In Buckhalter our Supreme Court considered " 'whether a trial court must recalculate custody and conduct credits following remand for resentencing.' " (Buckhalter, supra, 26 Cal.4th at p. 28.) The court ultimately concluded "that when a prison term already in progress is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody." (Id. at p. 29, italics omitted.) However, it rejected the idea that these custody credits must be calculated as presentence custody credits, finding "a convicted felon who has once been sentenced, committed, and delivered to prison, who received all credits for confinement prior to the original sentencing, and who remains behind bars pending an appellate remand solely for correction of sentencing errors, is not eligible to earn additional credits for good behavior as a presentence detainee." (Ibid.)
Rogers correctly points out that although the trial court orally awarded him "all of his custody credits since his reception into the Department of Corrections," the award wasn't reflected in the abstract of judgment or the minute order for the resentencing hearing. Instead, the minute order and abstract of judgment award him only 2,064 days' credit for time served, which is the same credit award he received with his original sentence.
The People argue this was not error, because the trial court re-sentenced Rogers to an identical sentence. According to the People, this makes re-calculation unnecessary, because nothing changed. While we agree that re-calculation of custody credits is an imprecise term for what a trial court must do in these circumstances, Buckhalter makes clear Rogers is entitled to an award of custody credits for all of his actual time served. Neither the minute order nor the abstract of judgment contains such an award. Indeed, both the minute order and abstract of judgment misstate the actual oral ruling of the court, which correctly awarded Rogers all of his custody credits since imprisonment. Accordingly, we remand to the trial court to permit it to calculate Rogers's total custody credits—both pre-sentence credits and credits for actual time served prior to resentencing—and issue a corrected abstract of judgment with an updated custody credit award.
C. Robbery Sentence
Finally, Rogers argues, and the People correctly concede that the abstract of judgment reflects the wrong sentence for the robbery conviction. At the resentencing hearing, the court re-imposed the original sentence for the robbery conviction, which was the middle term. The abstract of judgment, however, states the court imposed the upper term. When there is a conflict between the abstract of judgment and the oral pronouncement, the oral pronouncement controls, and we have the inherent power to correct the clerical error in the abstract. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, we direct the trial court to correct the abstract of judgment to reflect that it re-sentenced Rogers to the middle term, not the upper term, for his robbery conviction.
III
DISPOSITION
We remand to the trial court with directions to correct the abstract of judgment to reflect the middle term for the robbery conviction and to recalculate his custody credits. The recalculation should include all time served since his initial incarceration, including presentence jail credits and credits earned while incarcerated in prison prior to and through the resentencing date. In all other respects, we affirm. The trial court shall forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: CODRINGTON
Acting P. J. FIELDS
J.