People v. Landroche CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCN304310
- Trial judge
- Harry M. Elias
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Patricia D. Benke (author), Alex C. McDonald, O'Rourke
Analysis
The trial court convicted the defendant of false imprisonment, found true prior prison term and strike enhancements, and sentenced him to eight years in prison. The Court of Appeal affirmed the judgment, finding no error in the sentencing scheme or juror misconduct claims.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to dismiss the strike enhancement“However, the enhanced sentencing regimen required under the three strikes law is distinct from the enhancements set forth under section 667.5 and is not subject to the dual use limitations of section 1170, subdivision (b).” | de novo | correct | agree with court The court correctly applied the holding in People v. Garcia that the three-strikes sentencing scheme is distinct from the prior prison term enhancements under section 667.5 and is not subject to the dual-use prohibition of section 1170, subdivision (b). Therefore, the trial court did not err in using the prior conviction for both the strike and the enhancement. |
Claim of juror misconduct“Thus, there is nothing on the record on appeal that supports Landroche's claim of juror misconduct.” | abuse of discretion | correct | agree with court The appellate court found the claim unsupported because the trial record showed that defense counsel had investigated the alleged misconduct and determined no prejudice occurred. Without evidence in the record to the contrary, the appellate court correctly declined to find error. |
Imposition of restitution fine“Calculating the amount of the fine as the product of the eight years of imprisonment imposed by the trial court multiplied by $240 was expressly authorized by section 1202.4, subdivision (b)(2).” | de novo | correct | agree with court The court correctly noted that the calculation of the restitution fine was mandatory and expressly authorized by statute. The trial court followed the statutory formula, so no error occurred. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to review the record for error when no argument is presented.
- relied: People v. McFearson (2008) 168 Cal.App.4th 388 — Establishes that dual use of a prior conviction for both an upper term and a prison term enhancement under section 667.5 is prohibited.
- relied: People v. Garcia (2001) 25 Cal.4th 744 — Holds that the three-strikes law sentencing regimen is distinct from section 667.5 enhancements and not subject to dual-use limitations.
The appellate opinion: sound — The opinion is sound because it correctly applies binding precedent (Garcia) to distinguish the three-strikes scheme from prior prison term enhancements, thereby rejecting the dual-use argument. It also properly dismisses the juror misconduct claim based on the lack of record support and the trial counsel's investigation.
How this analysis was made · dispute it
unusual dispositionA jury convicted Landroche of false imprisonment, the trial court found two prison priors and a strike true, denied his motion to dismiss the strike, and imposed an eight-year term (upper term doubled plus two one-year enhancements) with a $1,920 restitution fine. On a Wende appeal with a supplemental pro se brief, the Court of Appeal rejected the dual-use, juror misconduct, and restitution fine claims and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to dismiss the strike (Romero) and use of the same prior both as a strike to double the term and as the basis for a section 667.5(b) prison prior enhancement“However, the enhanced sentencing regimen required under the three strikes law is distinct from the enhancements set forth under section 667.5 and is not subject to the dual use limitations of section 1170, subdivision (b).” | de novo | correct | agree with court Whether the strike doubling and a 667.5(b) enhancement based on the same prior constitute prohibited dual use is a question of law. Published California authority consistently holds the Three Strikes law's doubling is an alternative sentencing scheme, not an enhancement, so the section 1170(b) dual-use bar and the Jones rule do not prevent adding a prison prior enhancement to a doubled term. The court correctly distinguished McFearson, which concerns upper-term/enhancement dual use. The opinion does not expressly say what aggravating factors supported the upper term, so it does not foreclose a McFearson problem on that distinct point, but the Wende review found no arguable issue. |
Denial of relief for alleged juror misconduct (juror speaking to girlfriend about the case)“In the trial court, Landroche's trial counsel stated that he had investigated the conduct of the juror and his girlfriend and determined that no prejudicial misconduct had occurred.” | unclear | correct | agree with court An appellate court reviews only the record; where the only record material is trial counsel's representation that investigation showed no prejudicial misconduct, there is no evidentiary basis for a misconduct claim on direct appeal. Any claim based on matters outside the record would have to proceed by habeas petition. |
Imposition of $1,920 restitution fine under section 1202.4, subdivision (b), with victim restitution deferred“Calculating the amount of the fine as the product of the eight years of imprisonment imposed by the trial court multiplied by $240 was expressly authorized by section 1202.4, subdivision (b)(2).” | de novo | correct | agree with court The fine is mandatory absent compelling reasons, and the formula (minimum fine for a 2012 offense, $240, times years imposed times counts) is authorized by section 1202.4(b)(2); $240 x 8 x 1 = $1,920, so no ex post facto or calculation issue appears. The opinion misdescribes victim restitution as required under 'section 296' (the DNA statute) rather than section 1202.4(f), but this is a clerical misstatement that does not affect the result; deferring victim restitution pending documentation is permitted. |
Refusal to strike the prior strike conviction under section 1385 (Romero), suggested as an issue by appellate counsel“Counsel suggests, as issues for our review, whether the trial court erred in failing to dismiss Landroche's strike and whether the verdict should be set aside for juror misconduct.” | unclear | correct | unsure The court addressed the defendant's dual-use theory but did not separately analyze whether the trial court abused its discretion in declining to strike the strike under the Williams/Carmony framework; it simply found no arguable issue after Wende review. Without facts about the prior or the court's stated reasons, the result cannot be independently evaluated from the opinion. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed counsel files a no-issue brief, the appellate court must independently review the entire record for arguable issues.
- relied: People v. Garcia (2001) 25 Cal.4th 744 — The Three Strikes law is a distinct sentencing scheme; a prior conviction may serve as a strike while also supporting a section 667.5(b) prison prior enhancement, free of section 1170(b) dual-use limits.
- relied: People v. McFearson (2008) 168 Cal.App.4th 388 — A court may not use the same prior conviction with a prison term both as an aggravating factor to impose the upper term and as a section 667.5(b) enhancement.
The appellate opinion: sound with gaps — The court answered each contention in the pro se brief with applicable statutory and case authority and correctly distinguished strike doubling from the upper-term dual-use rule. It did not expressly address the Romero discretion question suggested by counsel or confirm that the upper term rested on factors other than the prison priors, and it misidentified the victim restitution statute as section 296, though none of this affects the affirmance.
Opinion
Filed 5/27/14 P. v. Landroche 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 APEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063825
Plaintiff and Respondent, v. (Super. Ct. No. SCN304310)
TRAYTON LANDROCHE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Harry M.
Elias, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
A jury convicted defendant and appellant Trayton Landroche of one count of false imprisonment; the trial court found true allegations Landroche had served two prior prison terms within the meaning of Penal Code section 667.5,1 subdivision (b) and had been convicted of a strike within the meaning of the three strikes law, section 667, subdivisions (b) through (i). The trial court denied Landroche's motion to dismiss the strike and sentenced Landroche to the upper term of three years on the false imprisonment conviction, which was doubled to six years because of the strike. In addition, the trial court sentenced Landroche to two separate consecutive one-year terms for the prior prison enhancements, for a total term of eight years.
Landroche's false imprisonment conviction grew out of a February 27, 2012, domestic violence incident in which Landroche forced his way into his pregnant girlfriend's home, choked her and restrained her.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the proceedings below.
Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Counsel suggests, as issues for our review, whether the trial court erred in failing to dismiss Landroche's strike and whether the verdict should be set aside for juror misconduct.
We granted Landroche permission to file a brief on his own behalf, and he did so.
In his brief, Landroche asserts the trial court erred in denying his motion to dismiss the strike. In particular, he argues that use of his prior conviction as a strike, which doubled his term, and imposing a consecutive one-year term for the prior prison term, which grew 1 All further statutory references are to the Penal Code unless otherwise indicated. 2 out of the strike, constituted unlawful dual use of the strike. (See People v. McFearson (2008) 168 Cal.App.4th 388, 394-395.) We of course recognize that the dual use provisions of section 1170, subdivision (b), prevent a trial court from relying on a prior conviction that included a prison term to impose both an upper term and a prison term enhancement under section 667.5, subdivision (b). (See McFearson, at pp. 394-395.)
However, the enhanced sentencing regimen required under the three strikes law is distinct from the enhancements set forth under section 667.5 and is not subject to the dual use limitations of section 1170, subdivision (b). (People v. Garcia (2001) 25 Cal.4th 744, 757.)
Landroche also argues that one of the jurors spoke to the juror's girlfriend about his case during the course of the trial and that this misconduct requires a new trial. In the trial court, Landroche's trial counsel stated that he had investigated the conduct of the juror and his girlfriend and determined that no prejudicial misconduct had occurred.
Thus, there is nothing on the record on appeal that supports Landroche's claim of juror misconduct.
Finally, Landroche challenges the trial court's imposition of a $1,920 restitution fine under section 1202.4, subdivision (b). Imposition of the fine was mandatory.
(§ 1202.4, subd. (b).) Calculating the amount of the fine as the product of the eight years of imprisonment imposed by the trial court multiplied by $240 was expressly authorized by section 1202.4, subdivision (b)(2). The trial court properly deferred the separate restitution required under section 296 until documentation of the victim's losses was 3 presented to the trial court by the probation department.
Our review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 has disclosed no reasonably arguable appellate issues.
We find Landroche was adequately represented both at trial and on appeal.
DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J.
WE CONCUR:
McDONALD, J.
O'ROURKE, J.
Cites, in this corpus
- People v. McFearson F051882 · 2008-11-18
- People v. Garcia S081934 · 2001-07-18
- People v. Wende Crim. 20851 · 1979-10-12