P. v. Corsini CA4/1

California Court of Appeal · D062236 · 2013-07-16 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCE318006
Trial judge: Patricia K. Cookson
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Joan K. Irion (author), Judith D. McConnell, O'Rourke

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:52Z · confidence high

The trial court convicted Thomas Corsini of residential robbery, resisting a peace officer, and possession of a billy, sentencing him to prison and ordering him to pay $1,300 in restitution. The Court of Appeal affirmed the judgment, holding that Corsini forfeited his Second Amendment challenge to the billy statute and his request to specify joint and several liability for the restitution by failing to raise these issues in the trial court.

Ruling reviewed	Standard	The court	The model
Denial of Second Amendment challenge to Penal Code section 22210 (possession of a billy) “We therefore elect not to exercise our discretion to decide the forfeited Second Amendment issue.”	unclear	correct	agree with court agree with court
Rejection of request to modify restitution order to specify joint and several liability “Therefore, because Corsini did not ask the trial court to exercise its discretion to specify the joint and several nature of the restitution order, he may not raise the issue on appeal.”	unclear	correct	agree with court agree with court

Authorities

relied: In re Sheena K. (2007) 40 Cal.4th 875 — Constitutional rights may be forfeited in criminal cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.
relied: People v. Villa (2009) 178 Cal.App.4th 443 — Case law developments after trial proceedings can explain the failure to raise an issue earlier, supporting appellate discretion to consider a forfeited issue.
relied: People v. O'Neal (2004) 122 Cal.App.4th 817 — A challenge to a restitution order is waived if not raised in the trial court.
relied: People v. Smith (2001) 24 Cal.4th 849 — Claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices raised for the first time on appeal are not subject to review.
relied: People v. Blackburn (1999) 72 Cal.App.4th 1520 — It is within the trial court's discretion to specify that a victim restitution order is joint and several as to other codefendants.
relied: District of Columbia v. Heller (2008) 554 U.S. 570 — Established the individual right to keep and bear arms under the Second Amendment.
relied: McDonald v. City of Chicago (2010) 561 U.S. 742 — Incorporated the Second Amendment right to keep and bear arms against the states through the Fourteenth Amendment.

The appellate opinion: sound — The court correctly applied the forfeiture doctrine to both issues, noting that the Second Amendment precedents were decided years before trial, negating any excuse for failure to object, and that the restitution modification was a discretionary sentencing choice not raised below. The reasoning is concise and supported by standard California authorities on forfeiture and sentencing discretion.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

A San Diego jury convicted Thomas Corsini of residential robbery in concert with an armed-principal enhancement, resisting a peace officer, and possession of a billy (Pen. Code, § 22210), and the trial court sentenced him to four years eight months and ordered $1,300 in direct victim restitution without specifying joint and several liability with his codefendants. On appeal Corsini raised a Second Amendment challenge to section 22210 and asked that the restitution order be made joint and several; the Court of Appeal held both claims forfeited for failure to raise them in the trial court, declined to exercise discretion to reach the constitutional issue, and affirmed.

Ruling reviewed	Standard	The court	The model
Conviction under Penal Code section 22210 for possession of a billy, challenged on appeal as violating the Second Amendment under Heller and McDonald “Here, both Heller and McDonald were decided years before the proceedings in Corsini's case. We therefore elect not to exercise our discretion to decide the forfeited Second Amendment issue.”	unclear	not reached	agree with court The court correctly stated the forfeiture rule from In re Sheena K. and reasonably distinguished People v. Villa, where the trial predated Heller. Its refusal to exercise discretion is defensible, but the opinion does not acknowledge the line of authority (including Sheena K. itself) that appellate courts routinely reach facial constitutional challenges presenting pure questions of law on undisputed facts, nor does it note that the merits had already been resolved against the defendant's position in published authority, which would have allowed an easy alternative holding. The result is sound; the reasoning is thin.
Direct victim restitution order of $1,300 under section 1202.4, subdivision (f), without a specification that liability is joint and several with codefendants Fragger and Smith “Therefore, because Corsini did not ask the trial court to exercise its discretion to specify the joint and several nature of the restitution order, he may not raise the issue on appeal.”	abuse of discretion	not reached	agree with court Under People v. Smith (2001) 24 Cal.4th 849 and the Scott line, claims that the trial court failed to make or articulate discretionary sentencing choices are forfeited absent objection, and People v. Blackburn confirms that making restitution joint and several is discretionary rather than mandatory. Because an order lacking a joint-and-several term is not an unauthorized sentence, the narrow exception for sentences that could not lawfully be imposed does not apply. The forfeiture holding is correctly reasoned.

Authorities

relied: In re Sheena K. (2007) 40 Cal.4th 875 — Constitutional and other rights may be forfeited by failure to timely assert them in the trial court; whether an appellate court entertains a forfeited issue is a matter of its discretion.
relied: People v. Villa (2009) 178 Cal.App.4th 443 — Appellate court may consider an unpreserved Second Amendment challenge where the trial predated Heller, making a timely objection impossible.
relied: People v. O'Neal (2004) 122 Cal.App.4th 817 — A challenge to a restitution order not raised in the trial court is waived on appeal.
relied: People v. Smith (2001) 24 Cal.4th 849 — Claims that the trial court failed to properly make or articulate discretionary sentencing choices, raised for the first time on appeal, are not reviewable.
relied: People v. Blackburn (1999) 72 Cal.App.4th 1520 — A trial court has discretion to make a victim restitution order joint and several among codefendants.
relied: District of Columbia v. Heller (2008) 554 U.S. 570 — The Second Amendment protects an individual right to keep and bear arms; cited as the basis of the forfeited challenge and to show the argument was available at trial.
missed: People v. Davis (2013) 214 Cal.App.4th 1322 — Section 22210's prohibition on possession of a billy does not violate the Second Amendment under Heller; published before this opinion and would have permitted a merits-based alternative holding.

The appellate opinion: sound with gaps — The court correctly applied settled forfeiture doctrine to both claims and supported each holding with apt California Supreme Court and Court of Appeal authority, and its distinction of Villa on timing grounds is persuasive. It skipped, however, the recognized practice of reaching pure questions of constitutional law despite forfeiture and did not mention then-existing published authority rejecting the identical Second Amendment challenge to section 22210, which would have made the affirmance more secure.

How this analysis was made · dispute it

Opinion

Filed 7/16/13 P. v. Corsini CA4/1 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D062236

Plaintiff and Respondent, v. (Super. Ct. No. SCE318006)

THOMAS CORSINI,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Patricia K.

Cookson, Judge. Affirmed.

Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and Meagan J.

Beale, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted Thomas Corsini of one count of residential robbery in concert (Pen. Code, §§ 211, 213, subd. (a)(1)(A))1 while a principal was armed with a firearm (§ 12022, subd. (a)(1)); one count of resisting a peace officer (§ 148, subd. (a)); and one count of possession of a billy (§ 22210). The trial court sentenced Corsini to prison for a term of four years eight months and ordered Corsini to pay $1,300 in direct victim restitution.

Corsini contends that (1) his conviction for possession of a billy should be reversed because the statute under which he was convicted violates the Second Amendment to the United States Constitution; and (2) the restitution order should be modified to specify that the liability is joint and several as to other persons also convicted for the residential robbery. We conclude that Corsini has forfeited both arguments by failing to raise them in the trial court, and accordingly we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On January 17, 2012, Haresh Gobin went to a house in La Mesa to see a woman he had met on a chat line. After Gobin was let into the house by a woman (later identified as Jessica Smith) he was approached by two men (later identified as Corsini and Sean Fragger). Corsini and Fragger robbed Gobin at gunpoint, taking $450 and diamond earrings from him. Smith took Gobin's credit cards and identification from his wallet. Gobin reported the incident to police a week later.

1 Unless otherwise indicated, all further statutory references are to the Penal Code.

2 On January 28, 2012, police conducted a search of the house where Corsini was living after detaining another resident of the house, who was on probation. During the search, when officers attempted to conduct a patdown of Corsini, he resisted by swinging his arms, kicking, thrashing around and trying to reach for a gun concealed in his waistband. Corsini stopped resisting only after the officers threatened to use a taser on him. In Corsini's bedroom, the officers found a billy club, which was "an old style police baton."

For the incidents occurring on January 17 and 28, 2012, Corsini was charged with robbery in concert (§§ 211, 213, subd. (a)(1)(A)), including a weapons allegation (§ 12022, subd. (a)(1)) (count 1); resisting an executive officer (§ 69) (count 2); and possession of a billy (§ 22210) (count 3).2 The jury convicted Corsini on counts 1 and 3 as charged, and on count 2 it convicted Corsini of the lesser included offense of resisting a peace officer (§ 148, subd. (a)). The trial court imposed a prison term of four years eight months and ordered Corsini to pay $1,300 in direct victim restitution to Gobin for the items taken in the robbery.

2 Smith and Fragger were also charged with crimes and entered guilty pleas.

3 II

DISCUSSION

A. By Not Raising It in the Trial Court, Corsini Forfeited His Second Amendment Challenge to the Statute Criminalizing Possession of a Billy Corsini argues that his conviction for possessing a billy should be reversed because the statute under which he was convicted — section 22210 — violates the Second Amendment to the United States Constitution under District of Columbia v. Heller (2008) 554 U.S. 570 (Heller) and McDonald v. City of Chicago (2010) 561 U.S.

__ [130 S.Ct. 3020, 177 L.Ed.2d 894] (McDonald).3 Corsini has forfeited this issue because he did not raise it in the trial court.

" ' "[N]o procedural principle is more familiar to this Court than that a constitutional right," or a right of any other sort, "may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." ' [Citations.] 'The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]' " (In re Sheena K. (2007) 40 Cal.4th 875, 880-881.)

Corsini contends that even though he did not raise the Second Amendment issue in the trial court, we should nevertheless consider it. Although an appellate court may chose 3 With certain exceptions not applicable here, under section 22210 a person who "manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, or possesses any leaded cane, or any instrument or weapon of the kind commonly known as a billy, blackjack, sandbag, sandclub, sap, or slungshot" is guilty of a crime. (Ibid., italics added.)

4 to entertain a forfeited issue, " '[w]hether or not it should do so is entrusted to its discretion.' " (In re Sheena K., supra, 40 Cal.4th at p. 887, fn. 7.) One of the factors a court considers in deciding whether to exercise its discretion to consider a forfeited issue is whether case law developments after the trial proceedings explain the failure to raise the issue earlier. (People v. Villa (2009) 178 Cal.App.4th 443, 448 [considering a Second Amendment challenge based on Heller because "defendant's trial predated Heller, making a timely objection impossible"].) Here, both Heller and McDonald were decided years before the proceedings in Corsini's case. We therefore elect not to exercise our discretion to decide the forfeited Second Amendment issue.

B. Corsini Forfeited His Request That the Restitution Order Specify Joint and Several Liability with the Other Parties Involved in the Robbery Corsini's second appellate argument concerns the restitution order. As we have explained, the trial court ordered Corsini to pay $1,300 in restitution to Gobin based on the value of the money and jewelry taken from him during the robbery. 4 Corsini argues that the trial court should have specified that the restitution order was joint and several as between Corsini, Fragger and Smith — all of whom suffered convictions arising from the robbery of Gobin. Corsini requests that we correct the abstract of judgment to expressly provide that the restitution order is joint and several to any restitution ordered against Fragger and Smith. (See People v. Neely (2009) 176 Cal.App.4th 787, 800.)

4 The statutory authority for the restitution order is section 1202.4, subdivision (f), which states in relevant part that "in every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order."

5 Corsini has forfeited his claim because he failed to raise it in the trial court.

(People v. O'Neal (2004) 122 Cal.App.4th 817, 820 [waiving challenge to restitution order by not raising it in the trial court].) " '[C]laims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' raised for the first time on appeal are not subject to review." (People v. Smith (2001) 24 Cal.4th 849, 852, italics added.) The joint and several nature of the restitution order is a discretionary sentencing choice, as it is within the trial court's discretion to specify that a victim restitution order is joint and several as to other codefendants. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535-1536.) Therefore, because Corsini did not ask the trial court to exercise its discretion to specify the joint and several nature of the restitution order, he may not raise the issue on appeal.

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

MCCONNELL, P. J.

O'ROURKE, J.

Cites, in this corpus

People v. Villa C059808 · 2009-10-15
People v. Neely B204851 · 2009-08-13
People v. O'NEAL B165551 · 2004-09-23
People v. Smith S088387 · 2001-01-11
People v. Blackburn E021188, E022053 · 1999-07-22