People v. Perlman CA1/3 ( 2021 )

Filed 10/13/21 P. v. Perlman CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v. A157409
ROBERT PERLMAN,
Defendant and Appellant.
(Marin County Super. Ct. No.
SC195601A)
Robert Perlman pressed the muzzle of what appeared to be a
semiautomatic handgun into a pharmacy employee’s cheek as he stole more
than $12,000 worth of prescription drugs. In 2019, a jury convicted Perlman
of second degree robbery (Pen. Code, § 211)1 and commercial burglary (§§ 459,
460, subd. (b)) and found true an allegation that Perlman personally used a
deadly and dangerous weapon during the commission of the robbery (§ 12022,
subd. (b)(1), deadly weapon enhancement).2 The trial court found Perlman
1 Undesignated statutory references are to the Penal Code.
The jury found the allegations that Perlman personally used a firearm
2
“within the meaning of” sections 12022.5 and 12022.53 were not true.
1
ineligible for probation and sentenced him to six years in state prison,
comprised of the aggravated five-year term for the robbery and an additional
year for the deadly weapon enhancement.
Perlman appeals. He contends the court erred by excluding
impeachment evidence and by declining to instruct the jury with CALCRIM
No. 306 regarding untimely disclosure of evidence. Perlman also raises
claims of sentencing error: he argues the court abused its discretion by
denying probation, sentencing him to the aggravated term, and declining to
strike the deadly weapon enhancement.
We modify the judgment to impose a midterm sentence of two years on
the commercial burglary conviction and to stay execution of that sentence
pursuant to section 654. As modified, we affirm.
BACKGROUND
The prosecution charged Perlman with second degree robbery (§ 211)
and commercial burglary (§§ 459, 460, subd. (b)) and alleged Perlman used
a firearm in the commission of the robbery (§§ 12022, 12022.5, 12022.53).
Perlman’s first trial ended in a mistrial after the jury was unable to reach
a verdict.
A.
In 2015, Jose M., M.M., and Bryce L. worked at a pharmacy in a Corte
Madera shopping center. The pharmacy stored controlled substances—
Although the verdict form for the allegation under section 12022, subdivision
(b)(1) expressly referred to the deadly weapon as a “firearm,” defense counsel
referred to the weapon as a BB gun or a “replica” firearm. We therefore refer
to the weapon used in the robbery as a weapon. Perlman does not challenge
the sufficiency of the evidence supporting the deadly weapon enhancement.
(Upshaw v. Superior Court (2018) 22 Cal.App.5th 489, 504, fn. 7 [appellate
court need not consider issues unsupported by cognizable legal argument or
citation to authority].)
2
including Oxycodone and Percocet—in a locked cabinet. Only Bryce, the
pharmacist, had a key to the cabinet.
At 1:00 p.m. on an April 2015 afternoon, a man carrying what appeared
to be a black semiautomatic handgun leaped over the pharmacy counter. He
was wearing white overalls, a mask, sunglasses, and a hat. The man
approached Jose, pointing the weapon at him. Afraid, Jose raised his hands
in the air. The man pressed the muzzle of the weapon into Jose’s cheek. He
demanded Oxycodone and Percocet. Then he ordered Jose to put the drugs in
a bag. Jose retrieved a plastic shopping bag from underneath a cash register
and brought it to the controlled substances cabinet.
M.M. saw what was happening and tried to escape. The man stopped
her. He pointed the weapon at M.M., approached her, and said “ ‘bitch,
where do you think you are going.’ ” He told M.M. to “ ‘get [her] ass over’ ” to
the back of the store, near the controlled substances cabinet. She complied.
Bryce was next to the cabinet. He was “panicked” because he saw the man
jump the counter, point the weapon at Jose, and demand the painkillers.
Bryce unlocked the cabinet and put the prescription drugs—26 bottles of pills
worth $12,400—into the plastic bag. Jose gave the bag to “the robber.”
The man ordered the employees to lie on the floor; then he left the
pharmacy holding the white bag. Pharmacy surveillance cameras recorded
the robbery. After the man left, Bryce called 911.
B.
Minutes later, Central Marin Police Sergeant Jenna McVeigh arrived
at the pharmacy. She checked with nearby businesses for video surveillance.
She was looking for a person or a car leaving the area quickly, “like somebody
would when they are trying to get away from the scene.” The next day,
3
McVeigh watched surveillance video from a gas station adjacent to the
shopping center. It showed a BMW enter the gas station parking lot at
12:55 p.m. on the day of the robbery. Just before 1:00 p.m., a man wearing
white overalls walked through the shopping center.
A few minutes later, a man “matching the description of the suspect
from the robbery” walked quickly along a row of bushes separating the
shopping center from the gas station. He was carrying a “white bundle” but
no longer wearing white overalls. The man paused at the bushes, then
continued toward the BMW. Upon reaching the BMW, the man placed the
bundle in the trunk and got into the passenger seat. Then the car sped away,
cutting across several lanes of traffic and nearly colliding with another
vehicle.
In the bushes separating the shopping center from the gas station,
McVeigh found “a set of clear vinyl gloves.” The gloves appeared to have been
“shoved” in the bushes recently. McVeigh photographed the gloves and
booked them into evidence. Perlman’s DNA was found on the gloves.3
C.
Law enforcement officers discovered that Kurt Allsman was driving the
BMW on the day of the robbery. Perlman and Allsman were friends:
Perlman regularly spent the night at Allsman’s apartment. Both men used
drugs. Two weeks before the robbery, Perlman predicted that Allsman was
“ ‘going to feel betrayed’ ” by Perlman. Allsman thought Perlman’s comment
was “strange,” but he did not ask Perlman to explain himself. Allsman had
a distinctive limp.
3 The parties described the gloves as rubber, latex, and/or thin plastic.
The color of the gloves, according to the parties, was clear or off-white.
Officers found a BB gun in a parking lot near the pharmacy. It did not
resemble the weapon used by the robber.
4
On the day of the robbery, Allsman drove his BMW to the gas station
near the shopping center. Perlman accompanied him. Just before they
arrived at the gas station, Perlman said he needed to go to the shopping
center. Perlman got out of the car; Allsman drove to the gas station. Several
minutes later, Perlman returned to the BMW. He put something in the
trunk and got into the passenger seat.
Perlman told Allsman he had “ ‘robbed a pharmacy’ ” and discarded the
“overalls [and] gloves.” Worried the police would apprehend them, Allsman
quickly left the gas station and drove back to his apartment. Perlman
brought the drugs inside; then the two men ingested Oxycodone. Later,
Allsman hid the drugs.
Law enforcement officers searched Allsman’s apartment. They found
a large quantity of latex gloves, as well as items packaged together in a way
that suggested a robbery was in the works, including a sheathed knife,
electric tape, batting and motorcycle gloves, a wig, and a camouflage mask.
At least one vinyl glove was also found in the apartment. Allsman told the
officers where the drugs were hidden.
Allsman was arrested and pled guilty to robbery. Later, officers
arrested Perlman.
DISCUSSION
I.
Exclusion of Impeachment Evidence
Perlman contends the trial court erred by refusing to allow defense
counsel to impeach McVeigh “with her prior use of a false identification.”
A.
Background
In his opening statement, defense counsel conceded “there was a
5
robbery of a pharmacy” and that Allsman “was the getaway driver.” Counsel
also acknowledged Perlman’s DNA was on the gloves found in the bushes.
But counsel attempted to diminish the significance of the DNA evidence by
noting an unidentified male contributor’s DNA was also on the gloves and
that anyone—including Allsman—could “have gotten ahold of [the] gloves.”
On direct examination, McVeigh testified the gloves she found in the
bushes were made of “clear vinyl.” McVeigh explained that she was familiar
with the difference between latex and vinyl gloves because she once worked
in the paint department of a hardware store. According to McVeigh, latex
gloves are “solid white.” By contrast, vinyl gloves “are more transparent” and
“tend to give off a little bit of a shine or sheen” when worn.
On cross-examination, defense counsel noted McVeigh had previously
testified the gloves were latex or rubber. Counsel pointed out that McVeigh
had changed her testimony and was now “saying [the gloves are] vinyl.” In
response, McVeigh acknowledged she “misspoke” the last time she testified.
McVeigh explained that in her police report, she stated the gloves were “clear
latex or clear gloves,” but as she prepared to testify for a second time, she
realized the gloves were “actually vinyl.” McVeigh conceded the term “latex”
was a “poor description” for the gloves. Defense counsel cross-examined
McVeigh at length regarding her discovery of the gloves in the bushes, the
difference between latex and vinyl gloves, and the change in her testimony.
After McVeigh finished testifying, defense counsel filed a supplemental
motion in limine seeking to impeach McVeigh with a 2004 arrest or citation
for “attempting to enter a bar with a California Driver’s License in another
woman’s name” in violation of Vehicle Code section 14610, subdivision (a)(3).
Counsel argued the misdemeanor conduct was relevant because McVeigh
“changed her testimony on a critical point” and the link between Perlman’s
6
DNA and the robbery was “entirely dependent on her credibility.” But
counsel made no offer of proof about the 2004 incident, other than to assert
that McVeigh was cited or arrested for attempting to use false identification.
The prosecutor opposed the motion.
The court declined to admit the evidence. It concluded the “arrest” was
“too stale” and had “very little if any probative value.” During closing
argument, defense counsel emphasized the change in McVeigh’s testimony
regarding the gloves’ material and urged the jury to consider the possibility
that she “fudged the evidence” about the gloves in an attempt to “set
[Perlman] up.”
B.
No Abuse of Discretion in Excluding the 2004 Incident
Subject to Evidence Code section 352, prior misconduct involving moral
turpitude is admissible to impeach a witness in a criminal trial. (People v.
Clark (2011) 52 Cal.4th 856, 931.) Evidence Code section 352 allows a court
to “exclude evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time
or (b) create substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.” A trial court’s exercise of discretion regarding
whether to admit or exclude impeachment evidence will ordinarily be upheld
on appeal. (Clark, at p. 932.) A “reasonable difference of opinion” does not
establish an abuse of discretion. (People v. Clair (1992) 2 Cal.4th 629, 655.)
When determining whether to admit a prior conviction for
impeachment, a relevant factor is whether the conviction “is near or remote
in time.” (People v. Clark, supra, 52 Cal.4th at p. 931.) “Additional
considerations apply when the proffered impeachment evidence is misconduct
other than a prior conviction. This is because such misconduct generally is
7
less probative of immoral character or dishonesty and may involve problems
involving proof, unfair surprise, and the evaluation of moral turpitude.
[Citation.] . . . ‘[C]ourts may and should consider with particular care
whether the admission of such evidence might involve undue time, confusion,
or prejudice which outweighs its probative value.’ ” (Id. at pp. 931–932.)
Perlman complains the court erred by precluding defense counsel from
impeaching McVeigh with “her prior use of a false identification.” This
argument fails because defense counsel made no offer of proof regarding the
2004 incident. A defendant’s failure to make an offer of proof or present any
evidence of the underlying conduct, so that the reviewing court does “not
know what the underlying conduct was, whether or how it would have been
significant, how defendant would have attempted to prove it, or whether he
could have done so,” normally renders a claim that a trial court should have
admitted evidence of the underlying conduct “noncognizable.” (People v.
Chatman (2006) 38 Cal.4th 344, 373.)
The argument also fails on the merits. We assume for the sake of
argument that the unlawful use of a driver’s license is a crime of moral
turpitude. (See People v. Bedolla (2018) 28 Cal.App.5th 535, 549 [trial court
admitted misdemeanor conviction for providing false identification to a peace
officer in violation of section 148.9 “because it was a crime of moral
turpitude”].) But we discern no abuse of discretion in the trial court’s
exclusion of the evidence under Evidence Code section 352. As the court
observed—and as Perlman acknowledges—the incident was 15 years old. At
a certain point, evidence that is too remote lacks probative value. (People v.
Shoemaker (1982) 135 Cal.App.3d 442, 448, fn. 4.) The court was well within
its discretion to conclude McVeigh’s use of another person’s driver’s license
more than a decade earlier had limited relevance. (People v. Clair, supra,8
2 Cal.4th at p. 655; People v. Mireles (2018) 21 Cal.App.5th 237, 246–247 [no
abuse of discretion in excluding remote misdemeanor convictions].)
The court’s implied conclusion that the slight probative value of the
2004 incident was substantially outweighed by the danger of undue prejudice
and confusion was also reasonable. (People v. Clair, supra, 2 Cal.4th at
p. 655; People v. Calhoun (2019) 38 Cal.App.5th 275, 301 [no abuse of
discretion in excluding evidence of victim’s criminal conduct pursuant to
Evidence Code section 352]; People v. Feaster (2002) 102 Cal.App.4th 1084,
1094 [impeachment with conviction that was 12 years old posed “significant
danger of undue consumption of time and undue prejudice”].)
We conclude the trial court did not abuse its discretion by excluding the
evidence. Having reached this conclusion, we reject Perlman’s claim that the
court’s ruling violated his federal constitutional rights to present a defense, to
confront and cross-examine witnesses, and to receive a fair trial. Excluding
evidence with marginal impeachment value pursuant to Evidence Code
section 352 does not impermissibly infringe on a defendant’s federal
constitutional rights. (People v. Robinson (2005) 37 Cal.4th 592, 626–627.)
During defense counsel’s vigorous cross-examination, McVeigh acknowledged
changing her testimony and conceded mistakenly describing the gloves as
latex. On this record, Perlman has not shown the admission of the 2004
incident “ ‘ “would have produced ‘a significantly different impression of
[McVeigh’s] credibility.” ’ ’ ” (People v. Pearson (2013) 56 Cal.4th 393, 455.)
II.
CALCRIM No. 306
Perlman contends the court erred by declining to instruct the jury on
untimely disclosure of evidence.
9
A.
Background
Defense counsel’s supplemental motion in limine requested the court
instruct the jury with CALCRIM No. 306.4 Counsel suggested the
prosecution knew McVeigh planned to testify that the gloves were vinyl—not
latex—and failed to timely disclose that information. The prosecutor
disagreed. She explained that she spoke to McVeigh the afternoon before
McVeigh testified at Perlman’s retrial. During that conversation, McVeigh
divulged that she learned about gloves while working at a hardware store.
Before this unprompted disclosure, the prosecutor had no knowledge of
McVeigh’s experience with gloves. That evening, the prosecutor disclosed the
information to defense counsel. The prosecutor did not, however, disclose
that McVeigh would testify that the gloves were vinyl because, as she
explained, she did not know that McVeigh would so testify until she did so.
The court declined to give CALCRIM No. 306. It explained: “I’m not
hearing anything that causes me to disbelieve the prosecution, or to believe
that [the prosecutor] is lying, and as a result I’m not inclined to give the
instruction . . . because the information I have is [the prosecutor] received the
information” and “timely” disclosed it. The court also concluded McVeigh’s
change in testimony had not harmed the defense because vinyl and latex
gloves were found in Allsman’s apartment.
4 CALCRIM No. 306 provides: “Both the People and the defense must
disclose their evidence to the other side before trial, within the time limits set
by law. Failure to follow this rule may deny the other side the chance to
produce all relevant evidence, to counter opposing evidence, or to receive
a fair trial. [¶] An attorney for the (People/defense) failed to disclose:
[within the legal time period].
[¶] In evaluating the weight and significance of that evidence, you may
consider the effect, if any, of that late disclosure.”
10
B.
No Abuse of Discretion in Declining to
Give CALCRIM No. 306
As relevant here, section 1054.1—the reciprocal discovery statute—
requires the prosecution to disclose to the defendant certain categories of
evidence “ ‘ “in the possession of the prosecuting attorney or [known by] the
prosecuting attorney . . . to be in the possession of the investigating
agencies.” ’ ” (People v. Verdugo (2010) 50 Cal.4th 263, 279–280.) Evidence
subject to disclosure includes “[r]elevant written or recorded statements of
witnesses . . . whom the prosecutor intends to call at the trial.” (§ 1054.1,
subd. (f).) Section 1054.1, subdivision (f) also requires disclosure of “relevant
oral statements of witnesses, other than the defendant, whom [the
prosecutor] intend[s] to call at trial.” (Roland v. Superior Court (2004)
124 Cal.App.4th 154, 167; People v. Hughes (2020) 50 Cal.App.5th 257, 280.)
“ ‘Absent good cause, such evidence must be disclosed at least 30 days before
trial, or immediately if discovered or obtained within 30 days of trial.’ ”
(Verdugo, at p. 280; § 1054.7.)
“Upon a showing both that the defense complied with the informal
discovery procedures provided by the statute, and that the prosecutor has not
complied with section 1054.1, a trial court ‘may make any order necessary to
enforce the provisions’ of the statute,” including advising “ ‘the jury of
any . . . untimely disclosure.’ ” (People v. Verdugo, supra, 50 Cal.4th at
p. 280; People v. Riggs (2008) 44 Cal.4th 248, 306–311 [approving use of
instruction “congruent with” CALCRIM No. 306].) We review a trial court’s
finding on whether a discovery violation occurred for substantial evidence
(Riggs, at p. 306) and its ruling on whether to impose a sanction for abuse
of discretion (People v. Ayala (2000) 23 Cal.4th 225, 299).
11
The trial court did not abuse its discretion by declining to instruct the
jury with CALCRIM No. 306. The court found the explanation from the
prosecutor regarding her knowledge of McVeigh’s prior experience with
gloves and identification of the gloves as vinyl to be credible. The court also
determined that the prosecutor, upon learning the information, “timely”
disclosed it to defense counsel. We will not disturb these conclusions, which
are supported by substantial evidence and premised on the lower court’s
credibility determination. (In re S.C. (2006) 138 Cal.App.4th 396, 415.)
In any event, any assumed failure to give the untimely disclosure
instruction was harmless under any standard of reversible error. (Chapman
v. California (1967) 386 U.S. 18, 22; People v. Watson (1956) 46 Cal.2d 818,
836.) To be sure, the gloves containing Perlman’s DNA bolstered the
prosecution case. But McVeigh’s testimony about the material of the gloves
was not the lynchpin. Vinyl gloves—along with latex gloves and items
comprising a robbery kit—were found at Allsman’s apartment, where
Perlman spent the night. Gloves containing Perlman’s DNA were found in
the bushes near the pharmacy. Whatever material was used to manufacture
those gloves, other gloves made of that same material were found at
Allsman’s apartment, Perlman’s DNA was on the gloves found in the bushes,
and Allsman’s testimony—corroborated by surveillance video—linked
Perlman to the robbery. Thus, the fact that McVeigh did not identify any
gloves as vinyl in the first trial—which resulted in a mistrial—does not
support a finding of prejudicial error under any standard.
Additionally, defense counsel extensively cross-examined McVeigh
about the change in her testimony. During closing argument, counsel
suggested McVeigh changed her testimony and fabricated the evidence about
the gloves. Defense counsel’s closing argument—which urged the jury to
12
consider the timing of McVeigh’s change in testimony—tracked the jury
instruction. On this record, the court’s failure to instruct the jury with
CALCRIM No. 306 did not affect the verdict.
III.
Sentencing Claims
Perlman asserts the trial court abused its discretion by denying
probation, sentencing him to the aggravated term on the robbery conviction,
and declining to strike the deadly weapon enhancement. The parties agree
the court erred by failing to impose sentence on the commercial burglary
conviction before staying the sentence pursuant to section 654.
A.
Background
The jury convicted Perlman of second degree robbery (count 1) and
commercial burglary (count 2), and found true the allegation that Perlman
personally used a deadly weapon during the commission of count 1 (§ 12202,
subd. (b)(1)). The probation department recommended the court impose
a prison sentence on count 1 but suspend execution and place Perlman on
probation.
The probation department noted Perlman placed a “gun barrel into”
one victim’s face—indicating viciousness—and that the crimes “exhibited
planning and professionalism.” But the department downplayed the
seriousness of the offense, describing the weapon as a BB gun or a “replica”
and noting that Perlman committed the crimes while “abusing prescription
opiates.” The probation department acknowledged Perlman had numerous
misdemeanor convictions and “challenges” complying with previous grants of
probation, and that he was on probation when he committed the offenses.
Nonetheless, the department opined Perlman was a suitable candidate for
13
probation because he would “be negatively impacted by incarceration” and
would “benefit from services offered in the community.” Defense counsel
joined the probation department’s recommendation. In the alternative,
counsel advocated for a mitigated prison term in light of mitigating factors
including Perlman’s drug addiction.
The prosecutor urged the court to sentence Perlman to a six-year prison
term, comprised of the aggravated term on count 1 plus an additional year on
the deadly weapon enhancement. She highlighted numerous aggravating
factors, including the planning and sophistication of the crimes, the threat of
bodily harm, and the use of a weapon. Additionally, in the prosecutor’s view,
Perlman’s failure to address his substance abuse problem—and his criminal
conduct to support that substance abuse problem—supported the aggravated
term.
The court declined to find “unusual circumstances” warranting a grant
of probation: it noted Perlman “had prior opportunities to address his drug
and alcohol problems” and either “failed to take advantage” of those
opportunities or was unsuccessful in overcoming his substance abuse. It
found the case “was more serious as compared to other instances of the same
crime” because Perlman robbed a pharmacy during the middle of the day
with a weapon that “looked real” and the pharmacy employees were
vulnerable because they were in an enclosed area “with no real ability to
escape.” Perlman, the court observed, had a significant prior record and
a history of poor performance on probation. Finally, the court determined the
offenses were “serious” and Perlman posed “a danger to others.”
Next, the court determined the aggravated five-year term on count 1,
the robbery conviction, was “the correct term.” It reached this conclusion
14
after considering—and balancing—the aggravating and mitigating factors,
including defense counsel’s argument that the crime appeared “to be an act
of desperation fueled by addiction” and “that the firearm was not in fact
a firearm, but was a replica.” The court declined to strike the deadly weapon
enhancement. It stayed “any time” on count 2, the commercial burglary
conviction, pursuant to section 654.
B.
No Abuse of Discretion in Denying Probation
A person “who used, or attempted to use, a deadly weapon upon a
human being in connection with the perpetration of the crime of which he or
she has been convicted” is not eligible for probation. (Former § 1203, subd.
(e)(2).) This presumption may be overcome in “unusual cases where the
interests of justice would best be served if the person is granted probation.”
(Id., subd. (e).) California Rules of Court, rule 4.413 provides factors the
court should apply to determine if the case is “unusual.” (Id., (b), (c).)5 But
“the existence of any of the listed facts does not necessarily establish an
unusual case; rather, those facts merely ‘may indicate the existence of an
unusual case.’ ” (People v. Stuart (2007) 156 Cal.App.4th 165, 178 (Stuart).)
5 “Rule” references are to the California Rules of Court. Among the
factors the court should consider to determine whether a case is unusual
are: (1) the “circumstance giving rise to the limitation on probation
is . . . substantially less serious than the circumstances typically present in
other cases involving the same probation limitation, and the defendant has
no recent record of committing similar crimes or crimes of violence;” (2) the
“defendant participated in the crime under circumstances of great
provocation, coercion, or duress not amounting to a defense, and the
defendant has no recent record of committing crimes of violence;” and (3) the
“crime was committed because of a mental condition not amounting to a
defense, and there is a high likelihood that the defendant would respond
favorably to mental health care and treatment that would be required as
a condition of probation.” (Rule 4.413(c)(1)(A), (c)(2)(A)–(B).)
15
“ ‘[M]ere suitability for probation does not overcome the presumptive bar. . . .
[I]f the statutory limitations on probation are to have any substantial scope
and effect, “unusual cases” and “interests of justice” must be narrowly
construed,’ and rule 4.413 ‘limited to those matters in which the crime is
either atypical or the offender’s moral blameworthiness is reduced.’ ” (Ibid.)
“ ‘The standard for reviewing a trial court’s finding that a case may or
may not be unusual is abuse of discretion.’ [Citation.] The trial judge’s
discretion in determining whether to grant probation is broad. [Citation.]
‘[A] “ ‘decision will not be reversed merely because reasonable people might
disagree. “An appellate tribunal is neither authorized nor warranted in
substituting its judgment for the judgment of the trial judge.” ’ ” ’ [Citation.]
‘[T]hese precepts establish that a trial court does not abuse its discretion
unless its decision is so irrational or arbitrary that no reasonable person
could agree with it.’ ” (Stuart, supra, 156 Cal.App.4th at pp. 178–179.)
Perlman acknowledges he was presumptively ineligible for probation
under section 1203, subdivision (e)(2) but claims his case was unusual and
that the interests of justice support a grant of probation. The trial court was
not persuaded, and neither are we. After carefully considering the probation
report and the parties’ sentencing memoranda, the court found Perlman’s
case “did not fall in the class of ‘unusual cases where the interest of justice
demands a departure from the declared policy.’ ” (People v. Jones (1962)
203 Cal.App.2d 228, 230.) Ample evidence supports that determination.
Perlman pressed the muzzle of a weapon into a pharmacy employee’s cheek
during a brazen mid-afternoon robbery. He threatened another employee
and “panicked” the pharmacist, both of whom were in an enclosed area “with
no real ability to escape.” On this record, the court could reasonably conclude
16
the robbery was not “substantially less serious than the circumstances
typically present in other cases.” (Rule 4.413(c)(1)(A).)
Even if the court deemed Perlman’s drug addiction to be an unusual
circumstance under rule 4.413(c)(2)(A) or (B), this did not compel a finding
that a grant of probation would serve the interests of justice. (Stuart, supra,
156 Cal.App.4th at p. 178; People v. Serrato (1988) 201 Cal.App.3d 761, 763
[upholding probation ineligibility finding notwithstanding defendant’s claim
that “his drug and alcohol addictions” rendered his case “unusual”],
disapproved on another point in K.R. v. Superior Court (2017) 3 Cal.5th 295.)
Nor was the court required to accept Perlman’s assertion that he had reduced
moral culpability because of his drug addiction, particularly where Perlman
had prior opportunities to address his substance abuse issues and had either
“failed to take advantage” of those opportunities or was unsuccessful in
overcoming the problem. The court “considered the specific circumstances of
this case,” had a reasonable basis for its decision, and acted within its broad
discretion in finding Perlman was not eligible for probation. (Stuart, at
pp. 187, 181.)
C.
No Abuse of Discretion in Imposing the Aggravated Term
Perlman also challenges the trial court’s decision to sentence him to
the aggravated term on the robbery conviction. We review that decision for
abuse of discretion, reversing only if it “ ‘is so irrational or arbitrary that no
reasonable person could agree with it.’ ” (People v. Sperling (2017)
12 Cal.App.5th 1094, 1102.) There was no abuse of discretion. The court
weighed the aggravating and mitigating factors and concluded the
aggravated term was the “correct term.” (People v. Burbine (2003)
106 Cal.App.4th 1250, 1263 [only “a single aggravating factor is required to
17
impose the upper term”].) Perlman’s disagreement with that decision does
not demonstrate an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th
367, 377.) And the record belies Perlman’s contention that the court
“ignored” various mitigating factors; in any event, the court was free to
“ ‘minimize or even entirely disregard mitigating factors without stating its
reasons.’ ” (People v. Lai (2006) 138 Cal.App.4th 1227, 1258; Sperling, at
p. 1102.)
D.
No Abuse of Discretion in Imposing
the Deadly Weapon Enhancement
Perlman’s final claim is the court erred by declining to strike the
section 12022 deadly weapon enhancement in the interest of justice.
Perlman seems to suggest the enhancement should not apply because he used
a “replica” gun. This flawed reasoning ignores the express language of the
statute, which on its face applies to a defendant who “personally uses a
deadly or dangerous weapon in the commission of a felony.” (§ 12022, subd.
(b)(1).) Perlman acknowledges he “displayed the weapon in a menacing
manner to gain compliance with his demand for drugs.” On this record, he
has not shown the court’s decision to impose the deadly weapon enhancement
was an abuse of discretion. (People v. Pearson (2019) 38 Cal.App.5th 112,
116–118 [denial of request to strike section 12022.53 enhancement “was
squarely within the bounds of the trial court’s discretion”].)
E.
Sentence Modification
The parties agree—as do we—that the trial court erred by failing to
impose sentence on the commercial burglary conviction (count 2) before
staying “any time” on that conviction pursuant to section 654. “[W]hen
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a court determines that a conviction falls within the meaning of section 654,
it is necessary to impose sentence but to stay the execution of the duplicative
sentence.” (People v. Duff (2010) 50 Cal.4th 787, 796; People v. Alford (2010)
180 Cal.App.4th 1463, 1469 (Alford).) A trial court’s failure to impose
sentence “results in an unauthorized absence of sentence” (Alford, at p. 1472)
which we have the inherent authority to correct. (People v. Smith (2001)
24 Cal.4th 849, 852; People v. Cantrell (2009) 175 Cal.App.4th 1161, 1165.)
At the parties’ request—and consistent with Alford—we modify the
judgment to impose the midterm sentence of two years on count 2 and to stay
execution of that sentence pursuant to section 654. (Alford, supra,
180 Cal.App.4th at p. 1473; People v. Relkin (2016) 6 Cal.App.5th 1188, 1198
[modifying judgment to correct section 654 error]; §§ 460, 18, subd. (a)
[sentencing triad].) We agree with the parties that a new sentencing hearing
will not change Perlman’s actual prison time. Thus, the “futility and
expense” of remanding for resentencing “militates against it.” (Alford, at
p. 1473.)
DISPOSITION
The judgment is modified to impose the two-year midterm sentence on
the commercial burglary conviction (count 2) and to stay execution of that
sentence pursuant to section 654. The trial court is directed to forward to the
Department of Corrections and Rehabilitation an amended abstract of
judgment. As modified, the judgment is affirmed.
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_________________________
Chou, J.*
WE CONCUR:
_________________________
Tucher, P.J.
_________________________
Fujisaki, J.
A157409
*Judge of the Superior Court of San Mateo County, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
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