California Court of Appeal Jul 16, 2013 No. D062236Unpublished
Filed 7/16/13 P. v. Corsini CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
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.
I
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.
6
AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant forfeited his Second Amendment challenge to his conviction for possession of a billy and his request for a joint and several restitution order by failing to raise these issues in the trial court.
Issues
Whether the statute criminalizing possession of a billy violates the Second Amendment.
Whether the trial court erred by failing to specify that the victim restitution order was joint and several with codefendants.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We conclude that Corsini has forfeited both arguments by failing to raise them in the trial court, and accordingly we affirm the judgment.”
“Corsini has forfeited this issue because he did not raise it in the trial court.”