Filed 12/15/21 P. v. Talley CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

CLINTON JOHN TALLEY, 

Defendant and Appellant. 

 B304017

 (Los Angeles County

Super. Ct. No. MA065271)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Shannon Knight, Judge. Affirmed.

William L. Heyman, under appointment by the Court of 

Appeal, for Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising 

Deputy Attorney General, and David F. Glassman, Deputy 

Attorney General, for Plaintiff and Respondent. 

______________________
2

In a prior appeal we affirmed Clinton John Talley’s felony 

convictions for making a criminal threat and stalking and several 

misdemeanor convictions, reversed 16 other misdemeanor 

convictions as time-barred and remanded for resentencing. In 

this appeal following his resentencing, Talley contends the trial 

court abused its discretion in denying his request to dismiss a 

five-year prior serious felony conviction enhancement; his 

aggregate sentence of almost 20 years—11 years in state prison 

plus nearly nine years in county jail—constitutes cruel and/or 

unusual punishment in violation of the federal and state 

Constitutions; and the court’s imposition of fines, fees and 

assessments over his objection he lacked the ability to pay them

violated due process. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

1. Talley’s Convictions and His Prior Appeal

A jury convicted Talley of two felony counts, making a 

criminal threat (Pen. Code, § 422)

1

and stalking (§ 646.9, 

subd. (a)), and 25 misdemeanor counts of violating a protective 

order (§ 166, subd. (c)(1)). In a bifurcated proceeding Talley 

waived his right to a jury trial and admitted special allegations 

he had suffered a prior serious or violent felony conviction under 

the three strikes law (§§ 667, subds. (b)-(j), 1170.12) and a prior 

serious felony conviction within the meaning of section 667, 

subdivision (a)(1). The court sentenced Talley to an aggregate 

state prison term of 11 years for making a criminal threat plus 

1

Statutory references are to this code unless otherwise 

stated.
3

5,460 consecutive days in county jail for the misdemeanor 

counts.2

On appeal we affirmed Talley’s felony convictions and nine 

misdemeanor convictions and reversed 16 misdemeanor 

convictions as time-barred. (See People v. Talley (Aug. 20, 2019, 

B281571) [nonpub. opn.].) We remanded for resentencing so the 

trial court could exercise the full scope of its sentencing 

discretion, including considering whether to strike the

section 667, subdivision (a)(1), enhancement pursuant to thenrecent amendments to sections 667 and 1385 that became 

effective while Talley’s initial appeal was pending. (See Stats. 

2018, ch. 1013, §§ 1, 2; People v. Stamps (2020) 9 Cal.5th 685, 

693.) We also directed the trial court to hold a hearing, if Talley 

requested one, to address Talley’s arguments concerning his 

ability to pay any applicable fines, fees and assessments. 

2. Talley’s Resentencing Hearing

At resentencing the court declined Talley’s request to strike 

the section 667, subdivision (a)(1), enhancement, concluding it 

was not in furtherance of justice to do so. The court sentenced 

Talley to 11 years in state prison—the upper term of three years, 

2 At the initial sentencing hearing the court imposed the 

upper term of three years for making a criminal threat (count 1), 

doubled under the three strikes law, plus five years for the prior 

serious felony conviction under section 667, subdivision (a). The 

court stayed sentence on the stalking count under section 654. 

The court also imposed 364 days in county jail on each of 

misdemeanor counts 2 through 16 to be served consecutively to 

count 1 and to each other (for an aggregate consecutive term of 

5,460 days on those misdemeanor counts) and 364 days each on 

misdemeanor counts 17 through 26, to be served concurrently 

with the criminal threat count. 
4

doubled under the three strikes law, plus five years for the prior 

serious felony conviction under section 667, subdivision (a)(1)—

plus 3,276 consecutive days in county jail (364 days for each 

misdemeanor offense to be served consecutively to the felony 

count and to each other). The court stayed sentence on the 

stalking offense pursuant to section 654. 

In refusing Talley’s request to strike the section 667, 

subdivision (a)(1), enhancement and exercising its discretion to 

impose the misdemeanor counts consecutive to each other and to 

the felony count of making a criminal threat, the court stated, 

“The defendant’s prior convictions are numerous. His prior 

performance on probation has been unsatisfactory. The court has 

grave concerns for the victim in this case. The court believes that 

there is an excellent chance that, upon his release, Mr. Talley 

will make efforts to locate her to harm or even potentially kill 

her. So it is the court’s intention to have Mr. Talley remain in

custody for the longest possible available time.” 

The court next addressed Talley’s ability to pay fines, fees 

and assessments in accordance with this court’s decisions in 

People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) and People 

v. Castellano (2019) 33 Cal.App.5th 485 (Castellano). Initially 

the court stated it intended to impose fines, fees and assessments 

in the same amounts as at the original sentencing hearing. 

Talley’s counsel objected, claiming his client was unable to pay 

them. Talley’s counsel asserted his client was indigent and 

unable to work and earn prison wages because he was legally 

blind and suffered from a heart problem. He presented no 

evidence to support these arguments or his general assertion 

concerning Talley’s inability to pay. After asking about Talley’s 

ownership of a motorcycle, which was discussed at trial, and 
5

being told by Tally’s counsel simply that Talley did not have any 

money, the court responded, “I’m not inclined to waive all of it. 

I’m not inclined to make a finding at this time of inability to pay 

anything. However, I will reduce the amount of the victim 

restitution fund fine. [Pen. Code, § 1202.4, subd. (b).] It will be 

in the amount of $300, rather than $1,200,” the amount the court 

had ordered at the initial sentencing hearing. The court imposed, 

but stayed, a parole revocation fine in the same amount. (Pen. 

Code, § 1202.45.) In addition, the court reduced the assessment 

amounts imposed at the initial sentencing hearing: It imposed 

an operations assessment (Pen. Code, § 1465.8) of $440, reduced 

from $1,040, and a court facilities assessment (Gov. Code, 

§ 70373) of $330, reduced from $780. Talley’s counsel told the 

court again, “My client still cannot pay any of those fees. This 

will be a burden on him when he gets out of custody.” The court

acknowledged Talley’s objection, but declined to change its 

ruling. 

DISCUSSION

1. The Court Did Not Abuse Its Discretion in Denying 

Talley’s Request To Dismiss the Five-year Prior Serious 

Felony Enhancement; Talley Has Not Demonstrated 

Ineffective Assistance of Counsel

The trial court may in its discretion dismiss a prior serious 

felony enhancement found true under section 667, 

subdivision (a)(1), in furtherance of justice. (§§ 667, subd. (f)(2); 

1385, subd. (b)(1); People v. Stamps, supra, 9 Cal.5th at p. 693.) 

In making this determination, the trial court considers “‘the 

nature of the offense and the offender.’” (People v. Brugman 

(2021) 62 Cal.App.5th 608, 638; accord, People v. Shaw (2020) 

56 Cal.App.5th 582, 587 [“[s]ection 1385 allows courts to ensure 
6

‘that persons are sentenced based on the particular facts of the 

offense and all the circumstances[;] [i]t enables the punishment 

to fit the crime as well as the perpetrator’”]; cf. People v. Carmony 

(2004) 33 Cal.4th 367, 378 [court considers all the circumstances 

relating to the offense and the offender in deciding whether to 

dismiss in furtherance of justice a strike found true under the 

three strikes law].) 

We review the court’s decision to deny a motion to strike a 

five-year prior serious felony enhancement for abuse of 

discretion. (People v. Brugman, supra, 62 Cal.App.5th at p. 638; 

People v. Shaw, supra, 56 Cal.App.5th at p. 587.) “[A] trial court 

does not abuse its discretion unless its decision is so irrational or 

arbitrary that no reasonable person could disagree with it.” 

(People v. Carmony, supra, 33 Cal.4th at p. 377; see id. at 

pp. 376-377 [absent a showing the sentencing decision was 

irrational or arbitrary, “‘“the trial court is presumed to have 

acted to achieve legitimate sentencing objectives, and its 

discretionary determination to impose a particular sentence will 

not be set aside on review”’”].)

Talley contends the court did not address a number of 

relevant factors in exercising its sentencing discretion, primarily 

because his attorney did not present them, and argues his 

counsel’s omissions constituted ineffective assistance of counsel. 

In particular, he asserts his counsel failed to argue, and thus the 

trial court did not consider, (a) he had committed his offenses 

while incarcerated and unlikely to carry out his threat to harm 

the victim; (b) imposition of the high term of three years, doubled 

under the three strikes law, adequately punished and enhanced 

his sentence without the additional five-year prior serious felony 

enhancement; (c) he suffered from mental and emotional 
7

problems at the time he committed the offenses but was now 

benefitting from psychotropic medication; (d) he would be more 

than 50 years old at the time of his release even if the five-year 

enhancement were dismissed and studies show criminality 

declines significantly after age 50; (e) it was highly unlikely that 

Talley would risk a third strike sentence of 25 years to life by 

contacting the victim again, as Talley himself advised the court 

during the sentencing hearing; and (f) California was moving 

away from draconian sentencing schemes. Had his counsel made 

these arguments, he asserts, it is reasonably probable the court 

would have exercised its discretion more favorably toward Talley 

and dismissed the five-year serious felony enhancement. 

Contrary to Talley’s contention, the court, which presided 

over Talley’s trial and original sentencing hearing, did consider 

Talley’s criminal record, the nature of the offenses for which he 

was convicted, and information presented by Talley’s counsel that 

his client was currently benefitting from psychotropic medication. 

In response, the court highlighted that Talley had committed his 

offenses while incarcerated for a similar crime against the same 

victim (making a criminal threat) and observed incarceration had 

not deterred his conduct. Considering all this evidence, the court, 

well acquainted with the facts of the case and Talley’s 

background, concluded it would not be in furtherance of justice to 

dismiss the prior serious felony enhancement and that imposition 

of the longest possible authorized sentence was warranted. 

Nothing in this record suggests that decision was arbitrary or 

irrational, let alone that Talley would have received a more 

favorable sentence had his counsel made any of the additional

arguments Talley now articulates. (See People v. Rices (2017)

4 Cal.5th 49, 80 [to prevail on an ineffective assistance of counsel 
8

claim, the appellant bears the burden of demonstrating counsel’s 

performance fell below an objective standard of reasonableness 

and counsel’s deficiencies resulted in prejudice; prejudice is 

established by showing that, but for counsel’s unprofessional 

errors, it is reasonably probable that the result of the proceeding 

would have been more favorable to the defendant]; see also 

Strickland v. Washington (1984) 466 U.S. 668, 696; 

In re Champion (2014) 58 Cal.4th 965, 1007 [“‘[i]f it is easier to 

dispose of an ineffective[ ] [assistance of counsel] claim on the 

ground of lack of sufficient prejudice, which we expect will often 

be so, that course should be followed’”].)

2. Talley’s Sentence Did Not Constitute Cruel and/or

Unusual Punishment in Violation of the Federal or 

California Constitutions 

The Eighth Amendment’s prohibition of cruel and unusual 

punishment, applicable to the states through the 

14th Amendment, contains a “‘narrow proportionality principle’ 

that ‘applies to noncapital cases.’” (Ewing v. California (2003) 

538 U.S. 11, 20 (Ewing).) Although strict proportionality 

between crime and sentence is not required, “‘extreme sentences 

that are “grossly disproportionate” to the crime’” are 

constitutionally prohibited. (Id. at p. 23; accord, Graham v. 

Florida (2010) 560 U.S. 48, 59.) 

To determine whether a particular sentence is so grossly 

disproportionate that it violates the federal Constitution, the 

court considers all the circumstances of the case, including the 

gravity of the offense and the severity of the penalty, as well as 

whether more serious crimes are subject to the same penalty in 

other jurisdictions. (Graham v. Florida, supra, 560 U.S. at p. 58; 

Solem v. Helm (1983) 463 U.S. 277, 285.) No single criterion is 
9

dispositive. (Solem, at p. 290, fn. 17.) Outside “‘the context of 

capital punishment, successful challenges to the proportionality 

of particular sentences [will be] exceedingly rare.’” (Id. at

pp. 289-290, quoting Rummel v. Estelle (1980) 445 U.S. 263, 271.) 

Still, although deference is given to the Legislature’s prescribed 

sentence for a particular crime (Solem, at p. 290), no penalty is 

per se constitutional. (Ibid.)

The California Constitution’s prohibition of “cruel or 

unusual punishment” (Cal. Const., art. I, § 17) similarly forbids 

punishment so disproportionate to the crime for which it was 

imposed that it “shocks the conscience and offends fundamental 

notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424; 

accord, People v. Cole (2004) 33 Cal.4th 1158, 1235; People v. 

Gomez (2018) 30 Cal.App.5th 493, 500.) The Lynch Court 

identified three factors for the reviewing court to consider in 

assessing this constitutional claim: (1) the nature of the offense 

and the offender; (2) how the punishment compares with 

punishments for more serious crimes in the jurisdiction; and 

(3) how the punishment compares with the punishment for the 

same offense in other jurisdictions. (Lynch, at pp. 425-427; 

see People v. Brewer (2021) 65 Cal.App.5th 199, 213-214.)

A claim that a particular sentence amounts to cruel and/or 

unusual punishment in violation of either the federal or 

California Constitution is a question of law subject to de novo 

review, while any underlying disputed facts are reviewed in the 

light most favorable to the judgment. (People v. Gomez, supra,

30 Cal.App.5th at p. 499; People v. Martinez (1999) 

76 Cal.App.4th 489, 496.) 

Talley contends his aggregate state prison sentence of 

11 years, plus effectively nine years in county jail, is so grossly 
10

disproportionate to his crimes that it constitutes cruel and 

unusual punishment in violation of the Eighth Amendment to the 

United States Constitution and cruel or unusual punishment in 

violation of the California Constitution. As Talley describes it, he 

made ambiguous statements in letters he sent to his former 

girlfriend that the jury wrongly interpreted as a criminal threat;

as an incarcerated person at the time he committed the offense, 

he was unable of carrying out the threat in any event; his crimes 

did not involve a weapon and no one was physically hurt; the 

“extensive” criminal background the court cited at sentencing

involved mostly misdemeanor offenses; and the letters he wrote 

to his girlfriend that the jury found violated the protective order 

were not particularly threatening. If they had been, he asserts, 

they would undoubtedly have been charged under section 422

(making a criminal threat). To impose consecutive sentences for 

each misdemeanor violation—essentially for letters and 

telephone calls to his former girlfriend while he was in prison—

and run each violation consecutive to each other3and to an 

11-year enhanced sentence for a nonviolent felony, he asserts, 

resulted in an aggregate sentence so grossly disproportionate to 

his crimes as to be unconstitutional. 

Tally’s arguments in support of the constitutional challenge 

to his sentence are unpersuasive. Despite Talley’s efforts to 

minimize his conduct, Talley was convicted for both making a 

3 As Talley implicitly acknowledges, the court was 

authorized to impose full consecutive sentences in county jail for 

each misdemeanor offense; a misdemeanor sentence is distinctly 

different from a felony sentence. (See People v. Brown (2016)

247 Cal.App.4th 1430, 1434; People v. Erdelen (1996) 

46 Cal.App.4th 86, 91-92.) 
11

criminal threat to kill his former girlfriend and stalking her, as 

well as for numerous violations of a protective order his former 

girlfriend had obtained. We affirmed those convictions on appeal, 

rejecting Talley’s arguments, several of which he repeats here, 

that they were not supported by substantial evidence. (See 

People v. Talley, supra, B281571.) As for his criminal 

background, in contending his past offenses were mostly 

misdemeanors, Talley essentially ignores his 2014 conviction for 

a serious felony, making a criminal threat against the same 

victim in this case, his most recent prior conviction. And, 

although Talley insists his punishment is unfair for a “wobbler” 

felony, Talley’s enhanced felony sentence punished him not 

simply for that felony, but also for his recidivism. (Ewing v. 

California, supra, 538 U.S. at pp. 20-21; People v. Haller (2009) 

174 Cal.App.4th 1080, 1089.) Talley has acknowledged he has a 

heavy burden to demonstrate his sentence constitutes cruel 

and/or unusual punishment in violation of the federal and state 

Constitutions. He has not come close to carrying it.4

4

Talley’s counsel did not object at the sentencing hearing 

that his sentence constituted cruel and/or unusual punishment. 

(See People v. Speight (2014) 227 Cal.App.4th 1229, 1247 

[defendant who failed to object in trial court that his sentence 

constituted cruel and unusual punishment forfeited argument on 

appeal]; People v. Norman (2003) 109 Cal.App.4th 221, 229 

[same].) Because Talley’s claim his sentence was cruel and/or 

unusual fails on its merits, so too does his claim his counsel was 

ineffective for failing to object on this ground. (See People v. 

Anderson (2001) 25 Cal.4th 543, 587 [counsel not ineffective for 

failing to make futile or unmeritorious objections]; People v. 

Memro (1995) 11 Cal.4th 786, 834 [same].) 
12

3. Talley Failed To Demonstrate Imposition of Fines, Fees 

and Assessments at Sentencing Violated Due Process or 

That His Counsel Was Constitutionally Ineffective

In Dueñas, supra, 30 Cal.App.5th 1157 we held “the 

assessment provisions of Government Code section 70373 and 

Penal Code section 1465.8, if imposed without a determination 

that the defendant is able to pay, . . . are thus fundamentally 

unfair; imposing these assessments upon indigent defendants 

without a determination that they have the present ability to pay 

violates due process under both the United States Constitution 

and the California Constitution.” (Dueñas, at p. 1168; accord, 

People v. Belloso (2019) 42 Cal.App.5th 647, 654-655, review 

granted, Mar. 11, 2020, S259755.) A restitution fine under 

section 1202.4, subdivision (b), however, is “intended to be, and is 

recognized as, additional punishment for a crime.” (Dueñas, at 

p. 1169; accord, Belloso, at p. 655.) Section 1202.4, 

subdivision (c), provides a defendant’s inability to pay a 

restitution fine may not be considered a “compelling and 

extraordinary reason” not to impose the statutory minimum fine. 

To avoid a serious constitutional question if a restitution fine 

were to be imposed on an indigent defendant, this court held in 

Dueñas that “the court must stay the execution of the fine until 

and unless the People demonstrate that the defendant has the 

ability to pay the fine.” (Dueñas, at p. 1172; accord, Belloso, at 

p. 655.) 

In Castellano, supra, 33 Cal.App.5th 485, decided 

two months after Dueñas, we clarified that, in the absence of 

evidence of the defendant’s inability to pay, the People are not 

required to establish the defendant has the means to pay before 

the court imposes the fines, fees and assessments required by 

statute. (Castellano, at p. 490 [“a defendant must in the first 
13

instance contest in the trial court his or her ability to pay the

fines, fees and assessments to be imposed and at a hearing 

present evidence of his or her inability to pay the amounts 

contemplated by the trial court”]; see People v. Santos (2019) 

38 Cal.App.5th 923, 934 [“it is the defendant’s burden to 

demonstrate an inability to pay, not the prosecution’s burden to 

show the defendant can pay”].)5 

Talley argues it violated due process for the court to impose 

any fines, fees or assessments on him, an indigent person. As 

discussed, however, it was Talley’s burden to present evidence of 

his inability to pay the fines, fees and assessments. He failed to 

present any. Recognizing this evidentiary omission, Talley 

contends his counsel’s failure to present any evidence on this 

point constituted ineffective assistance. However, on this silent 

record, it impossible to tell what, if any, evidence counsel could 

have presented, let alone whether it would have made any 

difference. For that reason alone, Talley’s ineffective assistance 

of counsel claim necessarily fails. (See People v. Salcido (2008) 

44 Cal.4th 93, 172 [ineffective assistance of counsel will often 

have to be shown by petition for habeas corpus where evidence 

outside the record can be introduced]; People v. Cunningham 

(2001) 25 Cal.4th 926, 1012, fn. 12 [same].) 

5

In People v. Kopp (2019) 38 Cal.App.5th 47, review granted 

November 13, 2019, S257844, the Supreme Court has directed 

the parties to brief the following issues: “Must a court consider a 

defendant’s ability to pay before imposing or executing fines, fees, 

and assessments? If so, which party bears the burden of proof 

regarding defendant’s inability to pay?”
14

DISPOSITION

The judgment is affirmed. 

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.