FOR PARTIAL PUBLICATION] [*]
Cal.Rptr.3d 218] APPEAL from a judgment of the Superior Court
of Merced County. Jeanne Schechter, Temporary Judge.
(Pursuant to Cal. Const., art. VI, § 21.) (Super. Ct. Nos.
J. Hennessey, Jr., San Diego, under appointment by the Court
of Appeal, for Defendant and Appellant Gregory Lamar Lowery.
Steinberg, Berkeley, under appointment by the Court of
Appeal, for Defendant and Appellant Bryan Joseph Green.
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.
Cal.Rptr.3d 219] INTRODUCTION
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;  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
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. 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 Lowerys ability to pay these fees,
fines and assessments prior to imposing them.
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 Greens ability to pay these fees, fines and
assessments prior [257 Cal.Rptr.3d 220] to imposing
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
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, 242 Cal.Rptr.3d 268
(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.
Because the issues raised on appeal relate to sentencing, we
provide only a general summary of the trial facts supporting
I. The Armed Robberies.
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.
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 owners 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 stores 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 [257
Cal.Rptr.3d 221] the counter and also removed cash from a
drawer. Appellants exited the liquor store without further
addition to taking cash from the registers, appellants took
personal items belonging to K.S., such as his drivers
license, his wifes 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.
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 ...