Filed 9/13/21 P. v. Small CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

FREDRIC BYRON SMALL,

 Defendant and Appellant.

2d Crim. No. B306178

(Super. Ct. Nos. 19F-04294, 

18F-00391)

(San Luis Obispo County)

Fredric Byron Small appeals a judgment after his no 

contest pleas to failing to file a change of address as a sex 

offender, a felony (Pen. Code, § 290.013, subd. (a))

1 and failing to 

register upon release from incarceration (§ 290.015, subd. (a)). 

He admitted he had two prior section 288, subdivision (b) felony 

convictions. The trial court sentenced him to an aggregate prison

term of seven years four months. We conclude, among other 

things, that 1) the trial court did not err by denying Small’s 

1 All statutory references are to the Penal Code.
2

motions to withdraw his no contest pleas; and 2) Small’s sentence 

did not constitute cruel or unusual punishment. We affirm.

FACTS

Small is a convicted sex offender who is required to 

register. Sheriff Detective Spencer Garrett had the responsibility 

of monitoring compliance by convicted sex offenders with their 

registration and reporting responsibilities. Garrett learned that 

Small had moved from his former residence but he had not filed a 

new registration as required by law. On January 12, 2018,

Garrett arrested Small for not filing a change of address as a sex 

offender. Small eventually pled no contest to the section 290.013, 

subdivision (a) offense. 

Small was serving time in jail in 2019. He was released 

from jail on June 4, 2019. 

At the time of his release, Small was provided a “CJIS 

8047” form that provided notice to Small of a “sex offender 

registration requirement” upon “release from the jail.” Small 

signed that form on June 4 and acknowledged that “he had the 

obligation to register.”

Small had “five working days” from the time of his release 

to register. Garrett checked a “California statewide database” to 

verify whether Small had registered.

On June 12, 2019, Garrett checked the database and 

determined that Small violated the law because he had not 

registered. Garrett requested “a Ramey warrant from the court 

and it was granted.” Small was arrested.

On February 5, 2020, Small pled no contest to failing to 

register upon release from incarceration. (§ 290.015, subd. (a).) 

This was pursuant to a plea agreement with Small’s counsel in 

the prior section 290.013 offense case (Mr. Osman) and his
3

counsel in the current section 290.015 case (Mr. Greco). Small, 

Osman, and Greco agreed that as part of the plea agreement 

Small would be sentenced in both cases, and “the total term 

between the two cases would be seven years four months.” The 

trial court asked Small if he understood the plea agreement. 

Small nodded his head.

In order to accept the plea agreement proposed by Small’s 

counsel, the trial court would have to strike one of Small’s two 

prior strike offenses. Small fell within the purview of the “Three 

Strikes” law. The People objected to striking a prior for 

sentencing.

The trial court responded, “I do recognize the People’s 

argument that there are a number of factors about [Small’s]

background, character, and prospects that could arguably . . . 

keep him squarely within the Three Strikes Law.” The court 

said, “I believe [Small] knows he’s legally required to register, but 

there were a number of factors that I suspect played into his 

commission of the offense . . . .” These included his advanced age

of 83 “and the fact that he has suffered from both some physical 

medical issues [and] perhaps some potential mental health issues 

as well.” The court said, “So for these reasons, I am prepared to 

indicate that I would strike the strike and go forward with the 

plea that the parties are contemplating.”

The trial court asked Small if he was currently taking 

medication for his health issues. Small said he was taking 

medication “[f]or all of them.” The court asked one of his defense 

counsel, “[Y]ou’re confident that [Small] can enter into this plea 

this morning freely, voluntarily, knowingly, and intelligently?” 

Counsel responded: “I am, Your Honor.”
4

The trial court asked Small, “Do you understand and give 

up your right to a jury trial?” Small: “No.” The proceedings 

were paused so that Small could confer with his counsel. After a 

break, Small’s counsel said Small is “ready to go forward with his 

plea today.”

In response to the trial court’s questions, Small said he 

agreed to give up his right to a jury trial, to present a defense, to 

testify, and to call witnesses, and he understood that he would 

receive a sentence of seven years four months. The court 

accepted Small’s no contest plea and found he “freely, voluntarily, 

knowingly, and intelligently waived [his] rights.”

On March 11, 2020, defense attorney Osman filed a motion 

to “withdraw plea” and a request for appointment of counsel. In 

his declaration he said, “I am informed by the defendant [Small] 

that he wishes to withdraw his plea . . . due to insufficient 

counsel . . . .”

At the hearing on April 6, 2020, Small told the trial court, 

among other things, that his pleas should be set aside because of 

“coercion” by his defense counsel; that he did not understand the 

plea; and that due to mental health issues, he was not capable of 

making a plea. 

Greco, Small’s defense counsel, presented facts to dispute 

these claims. He said, “[I]t’s my belief there’s not a legal basis for 

the withdrawal of the plea.” 

Judge Guerrero denied Small’s motion to withdraw his 

pleas. He also scheduled a sentencing hearing before Judge 

Duffy. Small had declined to give an “Arbuckle waiver.”

On April 20, 2020, the trial court called the case for 

sentencing. Small indicated he wanted a continuance to obtain 

different counsel. The prosecutor objected claiming the case had 
5

been continued for sentencing “several times” and Small was 

engaging in “another stall tactic.” Small requested to withdraw 

his pleas again. He repeated many of the claims he had made at 

the prior hearing where the court had denied his request to 

withdraw his pleas. The court again denied the request to 

withdraw the pleas by stating, “[W]e are going forward with 

sentencing today.”

Small told the trial court, “I’m having pains in my chest.” 

He said he was asking “for medical assistance right now.” The 

court ordered a recess.

At the April 22, 2020, sentencing hearing, the trial court 

said that Small was not present because he “was refusing to be 

taken from his cell”; that at the last hearing the court had taken

a recess because Small claimed he was having chest pains. Small

was transported to a hospital by ambulance, but when he arrived 

at the hospital, “he refused treatment.” He was “medically 

cleared” to return to his jail cell. The court said it knew he 

claimed to have medical issues “but it appears that what occurred 

on Monday may have been an attempt to delay proceedings.” The 

court noted that when Small is in court, he is “disruptive of the 

proceedings.”

Defense counsel Greco told the court, “I share, as an officer 

of the court, concerns . . . about dilatory tactics on behalf of Mr. 

Small.” The trial court sentenced Small to an aggregate state 

prison term of seven years four months, the same sentence that 

was agreed to in the negotiated plea agreement.

DISCUSSION

Denying the Motions to Withdraw Small’s No Contest Pleas

Small contends the trial court abused its discretion in 

denying his motions to set aside the plea agreements.
6

The People claim “no one made any relevant promises to 

[Small]” and his health problems “did not overcome his free will 

to plead no contest.”

The trial court is authorized to allow a defendant to 

withdraw a plea before judgment is entered. (People v. Gari

(2011) 199 Cal.App.4th 510, 521.) A defendant must show good 

cause to set aside a plea. Good cause for a motion to vacate a 

plea “ ‘must be shown by clear and convincing evidence.’ ” (People 

v. Hunt (1985) 174 Cal.App.3d 95, 103.) “Grant or denial of a 

motion lies within the trial court’s sound discretion . . . .” (Ibid.)

“Guilty pleas resulting from a bargain should not be set aside 

lightly . . . .” (Ibid.) Consequently, an appellant must meet a 

strong burden to establish a trial court’s abuse of discretion in 

deciding not to set aside the plea. (Ibid.)

Small sought to vacate his no contest pleas on the grounds 

of health, that his counsel coerced him, and that he did not 

understand the consequences of his pleas.

At the April 6, 2020, hearing, Small said, among other 

things, “I have a bipolar condition, I spent eight years at 

[Atascadero State Hospital], and there’s psychiatric 

documentation of it, and it switches on and off. So when I talk to 

the attorneys and they said just plead guilty, plead guilty. I said, 

‘I want a trial because I’m innocent.’ I’m innocent in the first 

case, the second case, the third case. So it was coercion on the 

part of the attorneys and . . . I feel that I didn’t understand it and 

I wasn’t capable of making a true-true plea.”

Small’s counsel told the trial court he reviewed the records 

and “a neuropsychological assessment that was conducted on 

December 17, 2019.” He said, “I have to represent to the court 

there’s not a basis, a legal basis for a withdrawal of plea.” He 
7

said that Small made “knowing, voluntary, intelligent waivers. 

He said, “[Small] understood when we had conversations of the 

legal ramifications, gave clear instructions to me and the public 

defender, and when we entered our pleas in the last case, some of 

the ideas came from him personally. So his statements made in 

court today belie the record . . . .”

Here there was a conflict between what Small claimed and 

what his attorney stated. Small has not shown why the trial 

court could not reasonably resolve the conflicting claims against

him. The trial court exclusively decides the credibility of the 

parties before it. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

We do not decide credibility issues. (Ibid.)

Moreover, the trial court made negative credibility findings 

about how Small had been using claims about his health

conditions to manipulate various court proceedings. At the April 

22, 2020, hearing, the court noted that at a prior hearing Small 

said that “he was suffering from a serious medical condition that 

required the proceeding to be recessed.” An ambulance 

transported him to the hospital, but he refused medical 

treatment and was “medically cleared to return back to the jail.” 

At the April 22nd sentencing hearing, he had the option to 

appear in court or “to appear via video remote at the jail.” But he 

refused “to be removed from his cell.” The court found that “when 

he is present in court,” he is “disruptive of the proceedings.” The 

court recognized his health claims, but it believed he was using 

them in “an attempt to delay proceedings.”

In addition, the record shows that Small knowingly waived 

his rights before he entered his no contest pleas. At the February 

5, 2020, plea hearing, the court asked Small, “Do you understand 

and give up your right to a jury trial?” Small: “Yes.” The court 
8

asked Small if he was willing to give up his “right to present [his] 

own defense, testify on [his] own behalf,” and subpoena his 

witnesses. Small answered in the affirmative. The court asked 

Small if he understood that as a result of his plea he would 

receive an aggregate sentence of seven years four months. Small 

answered “Yes.” The court asked, “Have any threats been made 

to you or anyone close to you in order to get you to enter into this

plea and admissions?” Small: “No.” “Have you had enough time 

to talk about your cases with Mr. Osman and Mr. Greco [defense 

counsel]?” Small: “Too much time.” His counsel agreed that 

there was a factual basis for the plea.

After his no contest plea, the trial court found: 1) Small 

“voluntarily, knowingly, and intelligently waived [his] rights”; 2) 

he understood the “nature of the charges”; 3) he understood the 

“possible consequences” of his plea and admissions; and 4) there 

was a factual basis for his plea and admissions. Small has not 

shown that the court abused its discretion by denying his motions

to vacate his pleas.

The Sentence

Small contends his sentence is unconstitutionally cruel or 

unusual. He claims that a seven year four month sentence for an 

83-year-old defendant for failure to register offenses is 

constitutionally infirm. He argues that it is “in effect a life 

sentence.”

The People claim Small is not entitled to raise this claim 

for the first time on appeal because he forfeited it at sentencing. 

“A claim that a sentence is cruel or unusual requires a ‘fact 

specific’ inquiry and is forfeited if not raised below.” (People v. 

Baker (2018) 20 Cal.App.5th 711, 720, italics added.) 
9

At sentencing, Small’s counsel did not raise a cruel or 

unusual punishment claim. Counsel did mention Small’s age. 

But that was only in reference to his financial ability to pay fines. 

Consequently, there is merit to the People’s position on forfeiture. 

But even on the merits of this claim, Small has not shown cruel 

or unusual punishment.

“The punishment provided by law may . . . run afoul of the 

constitutional prohibition against cruel or unusual punishment in 

article 1, section 17, of the California Constitution.” (People v. 

Mora (1995) 39 Cal.App.4th 607, 615.) The court may consider 

facts about the offender in making its determination on this 

constitutional issue, including the defendant’s age, prior 

criminality, personal characteristics, his or her state of mind, etc.

(People v. Dillon (1983) 34 Cal.3d 441, 479.) But successful 

challenges based on claims that the sentence is so grossly 

disproportional that it “shocks the conscience” are rare. (People 

v. Reyes (2016) 246 Cal.App.4th 62, 86.)

A 25-years-to-life sentence may be unconstitutional for sex 

offender defendants who have provided law enforcement with 

accurate information to meet their reporting responsibilities, 

have acted in good faith, but, because of a mere “negligent 

oversight,” did not comply with a requirement. (In re Coley

(2012) 55 Cal.4th 524, 551.) Here, by contrast, the trial court did 

not find an innocent omission on Small’s part. The court said, 

“[Small] knows he’s legally required to register.” The People 

note, “[Small] repeatedly flouted the registration requirement. 

Even when he was out on bail for failing to register, he again 

failed to register.”

Small has not made a sufficient factual showing to identify 

the various facts that support a claim of an unconstitutional 
10

sentence. Advanced age with health conditions does not 

automatically and categorically immunize that group from 

punishment for crimes. If it did, it would have the impact of 

encouraging a certain demographic to commit crimes with 

impunity. This would undermine the integrity of the criminal 

justice process.

Small is a recidivist with two prior serious felony 

convictions. The probation report reflects that he has a 

significant prior criminal record extending back from the 1950’s, 

1960’s, 1970’s, 1980’s, 1990’s, and 2009, and that there are no 

factors in mitigation. Moreover, Small has not shown how a 

sentence he agreed to in his plea agreement is an 

unconstitutional sentence.

Small notes the trial court considered his health issues in 

striking a prior strike. But the court later discovered that Small 

was using health claims to manipulate court proceedings and 

improperly delay them. The court could reasonably infer his 

health claims were substantially impeached by this conduct.

Moreover, Small’s claim that he is subject to a life sentence 

is not accurate. As the People note, the trial court imposed a 

seven year four month sentence. But it then gave him 

presentence credits for 1,645 days. The People have calculated 

that Small “is eligible for parole this December.” Small has not 

shown that he received an unconstitutional sentence.

We have reviewed Small’s additional contentions and we 

conclude he has not shown grounds for reversal.
11

DISPOSITION

The orders and judgment are affirmed.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

TANGEMAN, J.
12

Jacquelyn H. Duffy, Judge

Superior Court County of San Luis Obispo

______________________________

Will Tomlinson, 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, Assistant 

Attorney General, Paul M. Roadarmel, Jr., and Michael Katz, 

Deputy Attorneys General, for Plaintiff and Respondent.