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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

                                              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
