People v. Espinoza CA2/4 ( 2020 )

Filed 12/22/20 P. v. Espinoza CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B304626
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA112725)
v.
ROMELIO CORELIO ESPINOZA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Bruce F. Marrs, Judge. Affirmed.
Victor J. Morse, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Stephanie C. Brenan and
Nikhil Cooper, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
In the proceedings below, following remand for
resentencing, the trial court imposed consecutive sentences
of 15 years to life for seven of the eight counts of child
molestation of which appellant Romelio Corelio Espinoza
had been convicted (resulting in a sentence of 105 years to
life). It also imposed various fines and fees without
objection. On appeal, appellant argues the trial court
abused its discretion in imposing consecutive (instead of
concurrent) sentences because it failed to “adequately
consider” his age at the time of sentencing, and further
contends the court erred by imposing fines and fees without
determining his ability to pay, in contravention of People v.
Dueñas (2019) 30 Cal. App. 5th 1157 and the Eighth
Amendment of the United States Constitution. We conclude
the court did not abuse its discretion in imposing consecutive
sentences despite appellant’s age, and appellant forfeited
any argument regarding the fines and fees by failing to
object when they were imposed. We therefore affirm.
STATEMENT OF RELEVANT FACTS
A. Background and Prior Appeal
In 2017, a jury convicted appellant of three counts of
oral copulation or sexual penetration involving a child 10
years of age or younger (counts 2, 3, & 6) and five counts of
lewd or lascivious acts involving a child under the age of 14
(counts 1, 4, 5, 7, & 8). The jury also found true allegations
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that appellant’s crimes were committed against more than
one victim (counts 1, 4, 5, 7, & 8). The court sentenced
appellant to three years on count four, and 15 years to life on
each of the remaining seven counts, to run consecutively, for
a total of three years plus 105 years to life. The court also
imposed several fines and fees, including a $10,000
restitution fine. The record discloses no objections to any of
the fines or fees.
At sentencing in December 2017, the trial court
remarked that “these charges are all covered by Penal Code
section 667.6[, subdivision] (d), [California] Rule[s] of
Court[, rule] 4.426(a)(2), certainly as to counts 1, 4, 5, 7 and
8, which call for consecutive mandatory sentences with
different victims, full and separate sentences.” After
appellant appealed, this court affirmed his conviction in
People v. Espinoza (Dec. 28, 2018, B286713) [nonpub. opn.],
but vacated the sentences on counts 1, 4, 5, 7, and 8, holding
that consecutive sentences were not mandatory. We then
remanded for the court “to exercise its discretion to impose
consecutive or concurrent terms under Penal Code section
667.61 on counts 1, 4, 5, 7, and 8.” The remittitur issued on
March 15, 2019.
B. Appellant Files a Motion to Vacate His
Restitution Fine
On April 4, 2019, appellant filed, in propria persona, a
pleading entitled “Ex Parte Notice of Motion: Petitioner’s
Application Requesting Court Ordered Restitution Fine, to
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Be Waived/Modified With Points and Authorities in Support
of.” Citing Dueñas and the Eighth Amendment of the United
States Constitution, the pleading argued that the original
$10,000 restitution fine imposed in December 2017 was
unconstitutionally excessive and impermissibly imposed
without determining his ability to pay. The trial court
issued a minute order the next day denying appellant’s
motion, finding “there is no substantial right the defendant
is attempting to enforce.”
C. Court Resentences Appellant to Consecutive
Sentences
Nine months later, on January 30, 2020, the trial court
held the resentencing hearing. In arguing that the court
should resentence appellant to concurrent sentences,
appellant’s counsel noted that appellant was “an older
gentleman who . . . had no prior history or prior record,” and
that a sentence of even 50 years to life would be “virtually a
life without parole sentence,” which was “supposed to be
reserved for the worst of the worst.”1 Counsel therefore
requested that the court impose concurrent sentences “to
come up with a sentence of 25 to life.” The court responded
that the “victims, who were six and ten years old, . . . were
all particularly vulnerable (Rule of Court [4.]421(a)(3)),
[appellant had a] special trust and confidence position ([Rule
of Court] 4.421 (a)(11)), [and these were] independent
1 Appellant was 62 years old at the time of resentencing.
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crimes, different times, different places, [with a] common
scheme or plan. [¶] All of those taken together, certainly, in
the court’s mind, would not lead to concurrent sentences. I
think consecutive sentences are particularly appropriate in
this case. I know the numbers get huge.” The court
resentenced appellant to a total of 105 years to life,
consisting of 15 years to life for each of his eight convictions,
with the sentence on count four to run concurrently with the
other sentences, but the remaining sentences to run
consecutively.2
No argument was raised regarding the imposition of
fines and fees, and the court imposed fines and fees in the
same amounts it had ordered previously, including the
$10,000 restitution fine. The court noted there was a “new
and different” request for victim restitution in the amount of
$3,321 for claims paid out to appellant’s victims, and
appellant stipulated to that amount. Appellant timely
appealed.
2 The court originally resentenced appellant to 15 years to
life for each of the eight counts, but when appellant pointed out
this would result in a sentence longer than the one appealed
from, the court ordered the sentence on count four to run
concurrently.
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DISCUSSION
A. The Court Did Not Abuse Its Discretion in
Imposing Consecutive Sentences
“[A] trial court does not abuse its discretion unless its
decision is so irrational or arbitrary that no reasonable
person could agree with it.” (People v. Carmony (2004) 33
Cal. 4th 367, 374-375.) “‘The burden is on the party
attacking the sentence to clearly show that the sentencing
decision was irrational or arbitrary.’” (People v. Superior
Court (Alvarez) (1997) 14 Cal. 4th 968, 977.)
Appellant argues that “the court’s failure even to
acknowledge the impact of consecutive sentencing on
appellant’s ability ever to be granted parole during the
remainder of his lifetime, in light of appellant’s age of 62
years, was an abuse of the court’s discretion” because it
shows the court “failed to adequately consider appellant’s
age of 62 years as a mitigating factor.” We disagree.
First, the record demonstrates the court acknowledged
the impact on appellant of consecutive sentencing.
Specifically, after appellant’s request that he receive a
sentence of 25 years to life because a longer sentence would
be the equivalent of a life sentence without the possibility of
parole for someone his age, the court responded that the
victims’ youth and vulnerability, appellant’s position of trust
and confidence when he molested them, and the fact that
these were independent crimes occurring in different times
and places but with a common plan, were all factors that
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“would not lead to concurrent sentences.” Recognizing that
“the numbers get huge,” the court nevertheless opined that
“consecutive sentences are particularly appropriate in this
case.” Because the court’s statement was made in response
to appellant’s concern about the possibility of parole, it can
only reasonably be interpreted as an expression of the court’s
belief that consecutive sentences were warranted, even if
they rendered appellant functionally ineligible for parole due
to his age. Such a decision is neither irrational nor
arbitrary.
In his reply brief, appellant argues that the court’s
remark regarding “huge” numbers did not indicate the court
was considering appellant’s age, “because the numbers
would have been huge regardless of any defendant’s age.”
The argument takes the court’s remark out of context.
Appellant never suggested the court should sentence him to
concurrent sentences because a sentence of 105 years to life
was too lengthy in and of itself. Rather, appellant argued
the sentence was too long because he was an “older
gentleman.” Therefore, the court’s statement that it knew
the “numbers get huge” is fairly interpreted as a recognition
that this was a lengthy sentence to impose on a 62-year-old
defendant, but that the court considered it justified by the
facts of the case.
Moreover, even had the court not responded directly to
appellant’s argument regarding his age, this would not
demonstrate error. A “court is presumed to have considered
all of the relevant factors in the absence of an affirmative
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record to the contrary.” (People v. Myers (1999) 69
Cal. App. 4th 305, 310.) Indeed, appellant implicitly
acknowledges this when he argues not that the court failed
to consider appellant’s age, but that it did not “adequately”
consider it. The weight to be given to this factor, however,
was within the court’s discretion. We discern no abuse of
that discretion.
B. Appellant Forfeited His Arguments
Regarding Fines and Fees
Appellant admits he “did not object to the imposition of
fines and fee[s] at the resentencing hearing,” but contends
he nevertheless should be permitted to raise this issue on
appeal because “it would have been futile for the defense to
object, in light of the trial court’s earlier ruling denying
appellant’s in propria persona request and finding that ‘no
substantial right’ was implicated in the imposition of the
restitution fine.” We disagree.
The record discloses that at appellant’s original
sentencing, the court imposed various fines and fees,
including a $10,000 restitution fine, without objection. Our
opinion vacating that sentence vacated those fines and fees.
(See People v. Buycks (2018) 5 Cal. 5th 857, 893 [“[W]hen
part of a sentence is stricken on review, on remand for
resentencing ‘a full resentencing as to all counts is
appropriate, so the trial court can exercise its sentencing
discretion in light of the changed circumstances’”].)
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Several weeks after we issued our remittitur but nine
months before any new fines were reimposed, appellant filed
a motion to waive or modify the $10,000 restitution fine
initially imposed, citing indigency and the excessiveness of
the fine. At this point, however, there was no restitution
fine to waive or modify. Thus, the court correctly denied it,
finding there to be “no substantial right the defendant is
attempting to enforce.” The court’s order contained no
preemptive finding that appellant was not indigent or that
the fine was not excessive, and nothing in it discouraged
appellant from renewing his challenge to any fine actually
imposed at resentencing.
When the resentencing hearing occurred, however,
appellant voiced no objection to any of the fines or fees. In
fact, he stipulated to the newly determined amount of $3,321
of victim restitution. He has thus forfeited any argument
that the fines and fees were wrongly imposed. (See People v.
Torres (2020) 47 Cal. App. 5th 984, 990-991 [failure to object
on grounds of indigency forfeits issue on appeal]; People v.
Frandsen (2019) 33 Cal. App. 5th 1126, 1153-1155 [same]; see
also People v. Benson (1990) 52 Cal. 3d 754, 786, fn. 7 [failure
to object to alleged Eighth Amendment error forfeits issue on
appeal].)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
COLLINS, J.
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