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People v. Lowery

California Court of Appeals, Fifth District

January 2, 2020

THE PEOPLE, Plaintiff and Respondent,
v.
GREGORY LAMAR LOWERY et al., Defendants and Appellants.

         CERTIFIED FOR PARTIAL PUBLICATION[*]

          APPEAL from a judgment of the Superior Court of Merced County.Nos. 16CR-02612A, 16CR-02612B Jeanne Schechter, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

          Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant Gregory Lamar Lowery.

          John Steinberg, under appointment by the Court of Appeal for Defendant and Appellant Bryan Joseph Green.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Catherine Chatman, Deputy Attorneys General, for Plaintiff and Respondent.

          OPINION

          LEVY, J.

         INTRODUCTION

         On April 11, 2016, appellants Gregory Lamar Lowery and Bryan Joseph Green robbed three separate businesses in the area of Merced, California. They were both armed with firearms, and four victims had guns pointed at them during the various robberies. A jury convicted both appellants of four counts of second degree robbery (Pen. Code, § 211;[1] counts 1-4) and for being felons in possession of a firearm (§ 29800, subd. (a)(1); count 5). The jury found true alleged firearm enhancements (§ 12022.53, subd. (b)). The trial court found true that Green had suffered a prior serious felony conviction.

         Lowery received an aggregate prison term of 24 years eight months. This consisted of an upper term of five years in count 2 (second degree robbery), along with a 10-year firearm enhancement (§ 12022.53, subd. (b)). Consecutive one-third terms were imposed for the three other robbery convictions (counts 1, 3-4), along with respective firearm enhancements in counts 3 and 4.[2] The court imposed a concurrent middle term of two years for being a felon in possession (count 5). The court imposed a restitution fine of $6, 900 (§ 1202.4, subd. (b)(1)); a parole revocation restitution fine of $6, 900 (§ 1202.45, subd. (a), which was stayed pending successful completion of parole); a court operations assessment of $200 (§ 1465.8, subd. (a)(1)); and a criminal conviction assessment of $150 (Gov. Code, § 70373, subd. (a)(1)). The court did not ascertain Lowery's ability to pay these fees, fines and assessments prior to imposing them.[3]

         Green received an aggregate prison term of 41 years. This consisted of an upper term of five years in count 1 (second degree robbery), doubled because of a strike prior, along with a 10-year firearm enhancement (§ 12022.53, subd. (b)). A five-year enhancement was imposed in count 1 under section 667, subdivision (a)(1). Consecutive one-third terms were imposed for the three other robbery convictions, along with their respective firearm enhancements. The court imposed a concurrent middle term of two years for being a felon in possession (count 5). The court imposed a restitution fine of $10, 000 (§ 1202.4, subd. (b)(1)); a parole revocation restitution fine of $10, 000 (§ 1202.45, subd. (a), which was stayed pending successful completion of parole); a court operations assessment of $200 (§ 1465.8, subd. (a)(1)); and a criminal conviction assessment of $150 (Gov. Code, § 70373, subd. (a)(1)). The court did not ascertain Green's ability to pay these fees, fines and assessments prior to imposing them.[4]

         Appellants contend this matter must be remanded so the sentencing court may exercise its discretion to strike or dismiss their respective firearm enhancements pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620). Green further asserts remand is required for the court to exercise its discretion to strike his five-year sentence enhancement (§ 667, subd. (a)(1)) pursuant to Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393). We conclude a remand is not warranted for either of these issues. Based on the sentencing record, it is abundantly clear the court would not have exercised its discretion to strike or dismiss any of these enhancements.

         The parties dispute whether or not the court properly imposed the various fees, fines and assessments against appellants. Appellants rely primarily on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). In the published portion of this opinion, we find that appellants have forfeited this claim. In any event, Dueñas is distinguishable from the present matter, and appellants' respective constitutional rights were not violated. We also conclude that any presumed constitutional error was harmless.

         Finally, a clerical error appears in the respective abstracts of judgment. We order them amended to reflect the direct victim restitution of $9, 450. (§ 1202.4, subd. (f).) We otherwise affirm appellants' respective judgments.

         BACKGROUND

         Because the issues raised on appeal relate to sentencing, we provide only a general summary of the trial facts supporting the convictions.

         I. The Armed Robberies.

         On April 11, 2016, appellants entered three separate businesses, and they robbed four victims. Surveillance video at each location captured significant portions of appellants' robberies. Those videos were played for the jury. At trial, appellants did not present any evidence.

         A. The first robbery.

         The first robbery occurred at a market in Merced. Lowery grabbed an envelope containing about $200 to $300, which had been under a counter. He ran from the business. The owner's son, B.K., pursued him. Outside the business, B.K. caught Lowery, and he grabbed the envelope back. They began to scuffle. B.K. and Lowery ended up on the ground. Green approached and put a gun to B.K.'s head. B.K. relinquished the money, and appellants each kicked B.K.'s head before fleeing. At trial, B.K. identified appellants as the robbers.

         B. The second robbery.

         Shortly after robbing B.K., appellants entered a liquor store in Merced. Several customers were present. The store's owner, K.S., was behind the counter. Green went behind the counter and he put a gun to K.S.'s head. A cash drawer was already open. Green asked for “extra money” and threatened to kill K.S. K.S. opened another drawer. Green, who kept his gun pointed at K.S.'s head, took money from both drawers. Lowery also displayed a firearm. He directed the customers to sit on the floor. At one point, Lowery reached over the counter and also removed cash from a drawer. Appellants exited the liquor store without further incident.

         In addition to taking cash from the registers, appellants took personal items belonging to K.S., such as his driver's license, his wife's identification card, and various debit and credit cards. Later that same day, a clerk working at a local gas station found these personal items discarded on the ground near a dumpster outside.

         C. The final robbery.

         Later that same day, appellants entered a convenience store in Winton, California. Green went behind a counter where two clerks, G.S. and her son J.S., were working. Green pointed a gun at J.S. He demanded money, threatening he would shoot. Lowery displayed his own firearm and directed customers to sit down. Lowery also went behind the counter and demanded the cash registers to be opened. Once the registers were open, appellants took about $10, 000. They left without further incident. At trial, G.S. identified Lowery as one of the two robbers.

         After appellants left, J.S. discovered a bullet on the floor away from the cash registers. At trial, he told the jury that, during this robbery, one of the suspects had “racked” a handgun.

         II. Appellants Purchase Two Used Vehicles.

         After the three robberies, and later on the same day, Green purchased a used Saab from a dealership in Merced. At the same time, both Lowery and Green also purchased a used Jaguar from the same dealer. They paid in cash for both vehicles. In court, the dealer identified appellants as the two individuals who purchased those vehicles.

         III. Lowery Confesses To Robbing B.K. From The First Business.

         Law enforcement quickly identified appellants as the suspects. A detective reviewed video at the gas station where the personal items belonging to K.S. had been discovered. In the video, the detective saw a white Buick Skylark enter the parking lot and two subjects exit the vehicle. One subject “dumped” some “items in the garbage.” The other subject walked into the store. The second subject wore a T-shirt that read, “ ‘I'm on one.' ” According to K.S., the victim in the second robbery, one of the suspects had worn that same T-shirt. Another detective, who was familiar with appellants, recognized them in the gas station video. Lowery was taken into custody and he was interviewed. He admitted taking the envelope of cash from the counter of the first market. He denied any involvement in the other two robberies. He admitted that, when the first robbery occurred, he was wearing a T-shirt which said, “I'm on one.”

         On April 12, 2016, law enforcement searched Green's residence. They recovered two different types of ammunition. A “white over gray Buick Skylark” was parked in the driveway. This vehicle was registered to Green.

         DISCUSSION

         I. Remand Is Not Warranted For The Trial Court To Exercise Its Sentencing Discretion Under Senate Bill 620.[*]

         At the time of sentencing in this matter, the trial court was required to impose additional prison terms for the firearm enhancements found true under section 12022.53. (Former § 12022.53, subd. (d).) On October 11, 2017, however, the Governor approved Senate Bill 620, which amended, in part, section 12022.53. A trial court now has discretion to strike or dismiss these firearm enhancements. (§ 12022.53, subd. (h).)

         The parties agree, as do we, that these amendments apply retroactively to appellants because their cases are not yet final. (People v. Woods (2018) 19 Cal.App.5th 1080, 1090.) The parties, however, disagree whether remand is appropriate. Respondent asserts that a remand would serve no purpose. According to respondent, no reasonable court would exercise its discretion to strike appellants' respective firearm enhancements. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.) To support its position, respondent focuses on appellants' criminal conduct in this matter and the court's comments at sentencing. We agree with respondent that, based on this sentencing record, remand is not warranted.

         Remand is necessary when the record shows the trial court proceeds with sentencing on the erroneous assumption it lacks discretion. (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) If, however, the record shows the sentencing court “would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required.” (People v. McDaniels (2018) 22 Cal.App.5th 420, 425 (McDaniels).) Certain factors may be germane in assessing whether a trial court is likely to exercise its sentencing discretion in the defendant's favor. Those factors are: (1) the egregious nature of the defendant's crimes; (2) the defendant's recidivism; and (3) the fact that consecutive sentences were imposed. (Id. at p. 427.) However, these factors alone cannot establish what the court's discretionary decision would ...


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