People v. Hart CA4/2 ( 2021 )

Filed 1/7/21 P. v. Hart CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E072352
v. (Super.Ct.No. RIF1603242)
TIMOTHY LYNN HART, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge.
Modified and affirmed with directions.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J.
Williams, Deputy Attorneys General, for Plaintiff and Respondent.
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I.
INTRODUCTION
Defendant and appellant, Timothy Hart, appeals from the judgment entered
following jury convictions for assault with a deadly weapon against Linda F. (Pen. Code,
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§ 245, subd. (a)(1) ; count 1); uttering a criminal threat to Linda (§ 422; count 2); and
two counts of attempting to make a criminal threat to two sheriff’s deputies (§§ 422, 664;
counts 3 & 4). Defendant’s prior conviction allegations were bifurcated from the jury
trial of the charged crimes. Defendant admitted the prior conviction allegations were
true. The trial court struck punishment for the prior convictions and sentenced defendant
to an aggregate indeterminate prison term of 100 years to life.
Defendant contends the trial court abused its discretion and violated his
constitutional rights to a fair trial and due process by allowing evidence that in 2009
defendant committed a criminal threat offense. Defendant also contends the trial court
erred in imposing consecutive sentences on counts 1 (assault with a deadly weapon) and
2 (uttering a criminal threat) in violation of section 654. Defendant further asserts that
under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) the $300 restitution fine
(§ 1202.4, subd. (b)) must be vacated because the trial court imposed the fine without
finding defendant had the ability to pay the fine, in violation of defendant’s due process
1
Unless otherwise noted, all statutory references are to the Penal Code.
2
rights. In addition, defendant requests this court to review in camera the sealed transcript
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of the trial court Pitchess discovery proceedings.
We have reviewed in camera the sealed Pitchess record submitted to this court and
conclude the trial court did not abuse its discretion in not releasing any of Deputy
Rhodes’s confidential records. We further conclude the trial court erred in imposing
consecutive sentences on counts 1 and 2, in violation of section 654. The judgment is
therefore modified by staying defendant’s sentence on count 2 under section 654. In
addition, the $300 restitution fine is ordered stayed. The judgment is affirmed in all other
respects.
II.
FACTS
On July 3, 2016, Linda had been homeless for a few days, after she was kicked out
of her mother’s home. Linda turned 20 years old that month. She had been using
methamphetamine and was sleeping on a couch behind the Eldorado Sports Club (Club).
Linda testified she met defendant two or three days before the charged offenses.
During the evening of July 3, 2016, at around 8:00 p.m., Linda and defendant went
to the liquor store to buy vodka, and then sat on the couch behind the Club and drank the
vodka. Linda testified she had one drink and defendant drank the rest of the vodka.
After defendant started drinking, defendant acted irrationally and the two began arguing.
Defendant told Linda he was angry because he did not have any family. He said all of his
2
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
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family had committed suicide. All of a sudden, defendant pulled a knife out of his
pocket, put it to his throat, and said he was going to kill himself. Linda was sitting down
and defendant was standing about three feet from her.
Linda told defendant to put down the knife. Defendant put the knife near Linda’s
leg and throat, while standing in front of her, and told her he was going to kill her and her
family. Linda testified that it happened “all in the same incident.” Linda was scared
when defendant pulled his knife on her and threatened to kill her. She ran away to get
help. The security guard at the Club called the police.
Sheriff’s Deputy Rhodes testified he reported to the Club. He testified that Linda
appeared scared. Sheriff’s Deputy Santisteven located defendant and, when Sheriff’s
Deputy Hephner arrived at 12:53 a.m., on July 4, 2016, deputies Santisteven and Hephner
placed defendant in the back of Hephner’s patrol car. While Hephner transported
defendant to the police station, defendant kicked the back window, yelled, and said he
was going to kill the deputies who were involved and their families, including Hephner
and his family. Defendant further stated that he was part of a gang, who would find
Hephner and his family.
At the police station, defendant continued to threaten Hephner. Deputy Rhodes,
who was at the police station, turned on his tape recorder when he entered the booking
room and filled out paperwork for defendant. During the recording, defendant stated he
was a gang member in the most hated gang in the country. He further stated that, when
his handcuffs were removed, he was gong to “wrestle them [f---ers],” and told Rhodes,
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“I’m just tellin’ you man-man, one of them [f---ers] are gettin’ stabbed tonight. I’m
gonna grab a pen or whatever’s closest to me, I’m gonna stab the mother [f---ers] tonight,
you’re gonna have to kill me . . . kill the mother [f---er], I’m killin’ somebody.” He
continued, “I’m callin’ my homeboys, I’m callin’ my home girls and I’m gonna sit
around (unintelligible). I can guarantee that, I know where her family lives. I know
where she lives . . .” Defendant told Hephner, who was present during the recording, that
he should take his vest off and remove his gun. Defendant said to Hephner, “I swear to
God, I’ll [f---] you up.” “Come here you bitch.”
During the trial, the parties stipulated to the following facts. On July 4, 2016,
Sergeant Santisteven assisted in investigating the case. He located defendant within 10
minutes of Deputy Rhodes arriving on the crime scene. Sergeant Santisteven found a
pocketknife in defendant’s pants pocket. The parties also stipulated that in 2009,
defendant threatened to kill a separate, unrelated victim.
III.
ADMISSIBILITY OF UNCHARGED PRIOR OFFENSE
Defendant contends the trial court abused its discretion and violated his
constitutional rights by allowing evidence he committed a prior 2009 criminal threat
offense. The prosecution introduced stipulated evidence of the prior offense to prove the
specific intent element required to prove the crime of uttering a criminal threat.
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A. Procedural Background
Before defendant’s trial, the People filed a motion requesting admissibility of
evidence of a prior uncharged offense. The People stated in their motion that in 2009,
defendant threatened to kill a young woman who had run away from home and had been
living in a tent with defendant in a field. One evening, defendant angrily entered the tent,
hogtied the woman, and told her, “‘You better hope you get out, cause if not, I will kill
and bury you in this field.’” Defendant then covered the woman with a blanket and left.
The People argued in their motion that evidence of the prior 2009 criminal threat
offense was admissible under Evidence Code section 1101 to prove defendant had the
same intent when he committed the charged criminal threat crime against Linda. During
the pre-trial hearing on the People’s motion, the trial court noted it had discussed with the
parties in chambers the court’s thoughts about the matter. The court further stated that
evidence of the prior 2009 criminal threat offense was being offered under Evidence
Code section 1101, subdivision (b), to show defendant had substantially the same intent
when he committed the charged criminal threat crime against Linda. The court
concluded, based on the prior incident’s similar circumstances and conditions, evidence
of the 2009 criminal threat offense was relevant to defendant’s intent and would assist the
jury under Evidence Code section 1101.
In response, the prosecutor suggested sanitizing the evidence, as suggested by the
court, by stipulating to limited facts that defendant had previously threatened to kill
someone and intended that the threat be taken seriously. The prosecutor stated that the
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purpose of introducing evidence of the 2009 criminal threat offense was to show that, in
the instant case, defendant had the same intent to convey a criminal threat to Linda and
intended that the threat be taken seriously by her.
Defense counsel stated that, if the court was going to allow evidence of the prior
2009 criminal threat offense, defendant would stipulate to the proposed limited facts of
the prior incident, because it would be the “safest way for . . . defendant to deal with that
statement.”
During the trial, at the end of the prosecution’s case, the prosecutor submitted a
stipulation of facts, which was read to the jury, stating that defendant “threatened to kill a
separate unrelated victim in 2009. The defendant Mr. Hart acted with the intent that his
statement be understood as a threat during this act in 2009.”
B. Forfeiture
The People argue that defendant forfeited his objection to evidence of his 2009
criminal threat offense by failing to object to admission of the evidence at trial. We
disagree.
The People rely on “[t]he general rule . . . that ‘when an in limine ruling that
evidence is admissible has been made, the party seeking exclusion must object at such
time as the evidence is actually offered to preserve the issue for appeal . . . .’” (People v.
Brown (2003) 31 Cal.4th 518, 547.) But “a sufficiently definite and express ruling on a
motion in limine may also serve to preserve a claim . . . .” (Ibid.; see People v.
Thompson (2016) 1 Cal.5th 1043, 1108 (Thompson).) This latter exception is well
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established and applies here. Defendant raised his objection, the trial court ruled on it,
and defendant raised the same issue on appeal. (Ibid.)
Thus, although defendant stipulated to the court informing the jury of his 2009
criminal threat offense, he did not forfeit his objection to evidence of the 2009 offense,
because he did not stipulate until after the trial court definitively ruled that evidence of
the 2009 offense was admissible. Under these circumstances, we conclude defendant
preserved his objection to the admissibility of evidence of his 2009 criminal threats
offense. (Thompson, supra, 1 Cal.5th at p. 1108.)
C. Law Applicable to Admissibility of Uncharged Prior Offenses
“‘Evidence that a defendant committed crimes other than those for which he is on
trial is admissible when it is logically, naturally, and by reasonable inference relevant to
prove some fact at issue, such as motive, intent, preparation or identity. [Citations.] The
trial court judge has the discretion to admit such evidence after weighing the probative
value against the prejudicial effect. [Citation.] When reviewing the admission of
evidence of other offenses, a court must consider: (1) the materiality of the fact to be
proved or disproved, (2) the probative value of the other crime evidence to prove or
disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if
the evidence is relevant. [Citation.] Because this type of evidence can be so damaging,
“[i]f the connection between the uncharged offense and the ultimate fact in dispute is not
clear, the evidence should be excluded.” [Citation.]’ [Citation.] ‘“We review for abuse
of discretion a trial court’s rulings on relevance and admission or exclusion of evidence
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under Evidence Code sections 1101 and 352.” [Citation.]’” (People v. Fuiava (2012) 53
Cal.4th 622, 667-668; see Thompson, supra, 1 Cal.5th at p. 1114.)
Evidence Code section 1101, subdivision (a) provides, with exceptions not
applicable here: “‘[E]vidence of a person’s character or a trait of his or her character
(whether in the form of an opinion, evidence of reputation, or evidence of specific
instances of his or her conduct) is inadmissible when offered to prove his or her conduct
on a specified occasion.’ (Italics added.) The admission of such evidence may also be
limited by Evidence Code section 352, which authorizes a trial court, in its discretion, to
‘exclude evidence if its probative value is substantially outweighed by the probability that
its admission will (a) necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of misleading the jury.’”
(Thompson, supra, 1 Cal.5th at p. 1114.)
Evidence Code section 1101, subdivision (b), however, clarifies that the rule
excluding character evidence “‘“does not prohibit admission of evidence of uncharged
misconduct when such evidence is relevant to establish some fact other than the person’s
character or disposition,” such as identity, common plan or intent,’ provided the charged
and uncharged offenses are sufficiently similar to support a rational inference of those
facts or of some other fact unrelated to the defendant’s propensity to commit the charged
offenses. [Citations.]” (People v. Gutierrez (2018) 20 Cal.App.5th 847, 859.)
The degree of similarity necessary to support admissibility of uncharged
misconduct “depends on the purpose for which the evidence was presented.” (People v.
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Jones (2011) 51 Cal.4th 346, 371.) “The least degree of similarity between the
uncharged act and the charged offense is required to support a rational inference of intent;
a greater degree of similarity is required for common design or plan; the greatest degree
of similarity is required for identity. [Citations.] ‘In order to be admissible to prove
intent, the uncharged misconduct must be sufficiently similar to support the inference that
the defendant “‘probably harbor[ed] the same intent in each instance.’”’ (People v.
Gutierrez, supra, at p. 859, quoting People v. Ewoldt (1994) 7 Cal.4th 380, 402.) “We
review the trial court’s determination of admissibility of evidence under Evidence Code
sections 1101, subdivision (b), and 352 for abuse of discretion.” (People v. Gutierrez,
supra, at p. 860.)
D. Analysis
The prosecution sought to admit evidence of defendant’s prior 2009 criminal
threat offense to prove the requisite intent element of the crime of defendant uttering a
criminal threat against Linda.
In order to prove the crime of uttering a criminal threat under section 422, “the
prosecution must establish all of the following: (1) that the defendant ‘willfully
threaten[ed] to commit a crime which will result in death or great bodily injury to another
person,’ (2) that the defendant made the threat ‘with the specific intent that the statement.
. . is to be taken as a threat, even if there is no intent of actually carrying it out,’ (3) that
the threat—which may be ‘made verbally, in writing, or by means of an electronic
communication device’—was ‘on its face and under the circumstances in which it [was]
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made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the
person threatened, a gravity of purpose and an immediate prospect of execution of
the threat,’ (4) that the threat actually caused the person threatened ‘to be in sustained
fear for his or her own safety or for his or her immediate family’s safety,’ and (5) that the
threatened person’s fear was ‘reasonabl[e]’ under the circumstances. [Citations.]”
(People v. Toledo (2001) 26 Cal.4th 221, 227-228, italics added.)
The prosecution thus was required to prove that defendant made statements
threatening Linda with the specific intent that the statements were to be taken as a threat.
(§ 422.) Because specific intent is an element of the charged offenses of uttering a
criminal threat against Linda, evidence of the prior 2009 criminal threat offense was
substantially relevant to establishing that defendant had the same requisite intent when he
threatened Linda in 2016. The specific intent in the prior incident and in the charged
criminal threat offense was the same and occurred under similar circumstances. In both
incidents, the defendant threatened to kill a young homeless women, while holding the
women captive, in the 2009 incident by tying up the victim, and in the charged crime, by
holding a knife to the woman’s neck. In both offenses, defendant had a brief intimate
relationship with the women and, after defendant threatened to kill the women, the
women escaped and sought help.
We conclude the prior and charged criminal threats offenses are substantially
similar, and there is a direct relationship between the prior offense and an element of the
charged offense. Therefore, the stipulated statement that defendant threatened to kill a
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separate unrelated victim in 2009, and acted with the intent that his statement be
understood as a threat was admissible evidence under Evidence Code section 1101.
(People v. Daniels (1991) 52 Cal.3d 815, 857; see Thompson, supra, 1 Cal.5th at pp.
1114-1115.)
Defendant argues the prior 2009 criminal threat offense was nevertheless not
relevant because the sole issue in the instant case was whether defendant was too
intoxicated to form the requisite intent. But a determination of intent would have been
necessary if the jury rejected defendant’s theory he was too intoxicated to form the
requisite intent. The prosecution was entitled to rebut that evidence to show that,
regardless of whether defendant was intoxicated, he was capable of forming the requisite
intent and acted with intent his statement would be understood as a threat. Therefore,
evidence of the prior 2009 criminal threat offense was admissible evidence relevant to the
issue of intent. We thus conclude the trial court did not abuse its discretion, under either
Evidence Code section 1101 or Evidence Code section 352, in admitting the stipulated
evidence that defendant threatened to kill a separate unrelated victim in 2009, with the
intent that his statement be understood as a threat.
We further conclude the probative value of the stipulated statement regarding the
prior 2009 criminal threat offense was not substantially outweighed by the probability
that its admission would necessitate undue consumption of time, create substantial danger
of undue prejudice, confuse the issues, or mislead the jury. (Thompson, supra, 1 Cal.5th
at p. 1114.) The probative value of the evidence was high and outweighed any
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prejudicial effect. Any prejudice was minimal because the stipulated statement of the
2009 incident sanitized the facts and was brief. In addition, the prior incident was helpful
and relevant to determining the element of specific intent, because defendant’s threat
made in 2009, was substantially similar to the charged crime of uttering a criminal threat
against Linda. Also, introducing the evidence would not require undue consumption of
time, because the evidence consisted of a brief stipulation of the facts, and it was unlikely
introducing the stipulated statement would confuse the issues or mislead the jury. It was
clear from the stipulated statement that the prior 2009 criminal threat offense involved a
different, prior, uncharged incident.
Defendant argues the evidence of the 2009 offense should have been excluded
because the evidence was cumulative of other evidence, which included taped statements
of defendant’s charged criminal threat offenses against the officers apprehending
defendant. It is well recognized that “neither the prosecution nor the defendant has a
right to present cumulative evidence that creates a substantial danger of undue
prejudice. . . . In Ewoldt, the Supreme Court emphasized that cumulative evidence of
uncharged offenses may be inadmissible under Evidence Code section 352. The court
explained, ‘In many cases the prejudicial effect of such evidence would outweigh its
probative value, because the evidence would be merely cumulative regarding an issue
that was not reasonably subject to dispute.’” (People v. Williams (2009) 170 Cal.App.4th
587, 611, quoting People v. Ewoldt, supra, 7 Cal.4th at pp. 405-406.) There are no
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bright-line rules for determining when evidence is cumulative. (People v. Williams,
supra, at p. 611.)
Here, the trial court did not abuse its discretion by admitting into evidence the
stipulated statement that defendant committed the 2009 prior criminal threat offense. The
evidence was not unduly cumulative because the recorded criminal threats defendant
made against the deputies involved different circumstances than those when defendant
threatened Linda and previously threatened the young woman in 2009. As discussed
above, the evidence of the 2009 criminal threat offense was relevant to proving that
defendant intended that his statements to Linda would be understood as threats. The
evidence of defendant committing the criminal threat offense in 2009, under similar
circumstances demonstrated that, even though defendant may have been drinking and
intoxicated when he threatened Linda, he nevertheless had the requisite specific intent
that Linda understand his statements were threats against her. The trial court thus did not
abuse its discretion in allowing evidence of defendant’s prior 2009 criminal threat
offense.
IV.
PITCHESS MOTION
Defendant requests this court to independently review any and all in camera
proceedings conducted in furtherance of defendant’s motion to compel the Riverside
County Sheriff’s Department to produce documents related to Deputy Rhodes.
Defendant further requests this court to determine whether the trial court erred in denying
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the release of any of the requested documents. The People agree this court should
conduct such a review.
On December 28, 2016, defendant filed a motion for production of documents
under Evidence Code section 1043 (Pitchess motion). Defendant requested disclosure of
any records or complaints concerning Deputy Rhodes fabricating or falsifying charges,
evidence, reports, records, or testimony or (2) committing dishonesty or other conduct
unbecoming to an officer.
In support of defendant’s Pitchess motion, defense counsel submitted a declaration
stating that defendant denied that he threatened to kill deputies Rhodes and Hephner and
their families. Defense counsel asserted that defendant intended to use the requested
information in Deputy Rhodes’s personnel file to cross-examine and impeach him by
showing that Deputy Rhodes falsified statements, evidence, and incident reports.
On January 24, 2017, the trial court heard defendant’s Pitchess motion and granted
an in camera hearing to review the requested documents, if any, related to false reports,
complaints, or statements. The court conducted the in camera hearing and ordered the
transcript of the in camera hearing sealed. After the in camera hearing, the trial court
stated in court that no discoverable records or information was produced during the in
camera hearing.
Under Pitchess, supra, 11 Cal.3d 531, “a criminal defendant has a limited right to
discovery of peace officer personnel records in order to ensure ‘a fair trial and an
intelligent defense in light of all relevant and reasonably accessible information.’”
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(Alford v. Superior Court (2003) 29 Cal.4th 1033, 1037, fn. 3; accord, Chambers v.
Superior Court (2007) 42 Cal.4th 673, 679.) In 1978, the California Legislature
codified Pitchess motion privileges and procedures through the enactment of Penal Code
sections 832.7 and 832.8, and Evidence Code sections 1043 through 1045. (City of Santa
Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81, fns. omitted; Chambers v. Superior
Court, supra, at p. 679.) The trial court is vested with broad discretion when ruling on
a Pitchess motion seeking discovery of police officer personnel records. (People v.
Samayoa (1997) 15 Cal.4th 795, 827.) During an in camera hearing to determine
whether any records are discoverable, the custodian of records is only required to provide
those documents that are potentially responsive to the defendant’s specific request.
(People v. Mooc (2001) 26 Cal.4th 1216, 1230.) We review a trial
court’s Pitchess motion rulings for an abuse of discretion. (People v. Hughes (2002) 27
Cal.4th 287, 330.)
Based on our independent, in camera review of the sealed record, which includes
the in camera Pitchess hearing transcript and any documents presented at the Pitchess
hearing on January 24, 2017, we conclude the trial court properly conducted a Pitchess
hearing, and there are no documents that constitute relevant discoverable Pitchess
material. Finding no disclosable evidence in the sealed record provided to this court, we
conclude the trial court did not abuse its discretion in not releasing any of Deputy
Rhodes’s confidential records.
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V.
CONSECUTIVE SENTENCING UNDER SECTION 654
Defendant contends the trial court erred in imposing consecutive sentences on
counts 1 and 2, in violation of section 654. We agree the court should have stayed
the sentence on count 2.
Count 1 alleges defendant willfully and unlawfully committed an assault upon
Linda with a deadly weapon, a knife (§ 245, subd. (a)(1)). Count 2 alleges that on the
same day, defendant, in “a different offense from but connected in its commission with
the charge set forth in count 1,” willfully and unlawfully, with the specific intent that his
statements would be taken as a threat, threatened Linda that he would commit a crime
resulting in great bodily injury and death, and the threat conveyed to Linda a gravity of
purpose and an immediate prospect of execution, causing her to reasonably be in
sustained fear for her safety.
During the trial, Linda testified that, while she and defendant were amicably
talking, defendant suddenly pulled a knife out of his pocket. Linda later testified they
had been arguing before defendant pulled out the knife. He put the knife up to his own
chin and said he was going to kill himself. He was about three feet from Linda. She told
him to put down the knife. Then defendant told Linda he was also going to kill her.
Defendant pointed the knife towards her throat and then her leg. Because this scared
Linda, she ran away and yelled for help. After reviewing a portion of the preliminary
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hearing transcript, Linda acknowledged she had stated during the preliminary hearing that
defendant held a knife to her neck when threatening to kill her and her family.
During the trial, the prosecution also played for the jury the recording of
defendant’s statements to Rhodes and Hephner during booking. Defendant was recorded
threatening Rhodes, Hephner, and any other deputies involved. Defendant stated during
the recording that “I’m just tellin’ you man-man, one of them [f---ers] are gettin’ stabbed
tonight. I’m gonna grab a pen or whatever’s closest to me, I’m gonna stab the mother [f--
-ers] tonight, you’re gonna have to kill me . . . kill the mother [f---er], I’m killin’
somebody.”
Defendant further stated that after sentencing, “I’m callin’ my homeboys, I’m
callin’ my home girls and I’m gonna sit around (unintelligible). I can guarantee that, I
know where her family lives. I know where she lives . . . .” When Rhodes asked
defendant what caused defendant to become so upset at Linda that night, defendant
explained that he was upset because Linda had had sex with another man, Mike, behind
defendant’s back. Linda had denied it and told defendant she loved him. Defendant told
her to go have sex with Mike, and that defendant was going to beat up Mike. Then Linda
ran off and lied to the security guard.
The prosecutor argued during closing argument that defendant committed assault
with a deadly weapon against Linda (count 1) by holding a knife within arm’s length of
her neck, resulting in Linda yelling for help, fleeing, and asking security to call 911. The
prosecutor then told the jury that, as to count 2, that Linda testified that, as defendant
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“held the knife up to her,” he threatened to kill her. The prosecutor noted Linda forgot to
mention during her trial testimony that defendant also threatened her family, which Linda
testified to during the preliminary hearing. The prosecutor told the jury “You don’t need
both. It’s one or the other.” In other words, a conviction for uttering a criminal threat
against Linda did not require a finding that defendant threatened to harm both Linda and
her family.
The prosecutor summarized the evidence supporting count 2 as follows: “[Y]ou
look at the circumstances surrounding what he said: Holding the knife up to her thr[o]at.
Telling her that he was from a gang. Making himself sound scarey to her. And the things
he added to his statement and his demeanor and acting crazy and being angry towards her
all leading up to it, intended that she understand that he was serious. He wasn’t joking.
He wasn’t saying it in a passive way or anything like that. [¶] That everything
surrounding the statement that he made to her was an intent to make her afraid and
understand what he was saying would be a threat to her.”
During sentencing, the trial court stated that section 654 did not apply to
sentencing defendant and sentenced defendant to consecutive sentences on each count.
Defendant did not object or argue section 654 applied to consecutive sentencing on
counts 1 and 2. The trial court noted during sentencing that section 654 was not involved
in the court’s sentencing.
On March 8, 2019, the court sentenced defendant on count 1 (assault with a deadly
weapon), deemed the principal count, to 25 years to life. The court sentenced defendant
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on count 2 (uttering a criminal threat) to 25 years to life, with the sentence running
consecutive to count 1.
A. Applicable Sentencing Law
Section 654 provides that “[a]n act or omission that is punishable in different ways
by different provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision.” The statute proscribes punishment for
multiple crimes arising from a single act, and also for multiple crimes arising from
an indivisible course of conduct. (People v. Hicks (1993) 6 Cal.4th 784, 789.) We
determine whether a course of conduct is “divisible” by looking at the defendant’s intent
and objective, not the temporal proximity of the offenses. (Id. at p. 789; People v.
Latimer (1993) 5 Cal.4th 1203, 1208, quoting Neal v. State of California (1960) 55
Cal.2d 11, 19 [“Whether a course of criminal conduct is divisible and therefore gives rise
to more than one act within the meaning of section 654 depends on the intent and
objective of the actor.”].)
“‘[I]f all of the offenses were merely incidental to, or were the means of
accomplishing or facilitating one objective, defendant may be found to have harbored a
single intent and therefore may be punished only once.’” (People v. Hicks, supra, 6
Cal.4th at p. 789, quoting People v. Harrison (1989) 48 Cal.3d 321, 335.) “If, on the
other hand, defendant harbored ‘multiple criminal objectives,’ which were independent of
and not merely incidental to each other, he may be punished for each statutory violation
20
committed in pursuit of each objective, ‘even though the violations shared common acts
or were parts of an otherwise indivisible course of conduct.’” (People v. Harrison, supra,
at p. 335.) A course of conduct is divisible in time “‘where the offenses are temporally
separated in such a way as to afford the defendant opportunity to reflect and renew his or
her intent before committing the next one, thereby aggravating the violation of public
security or policy already undertaken.’” (People v. Lopez (2011) 198 Cal.App.4th 698,
717-718; see, e.g., id. at p. 718.)
We review factual determinations for substantial evidence. (People v. Valli (2010)
187 Cal.App.4th 786, 794.) When those facts are undisputed the application of section
654 raises a question of law, which we review de novo. (People v. Corpening (2016) 2
Cal.5th 307, 312.)
B. Analysis
Defendant contends count 1 (assault with the knife) and count 2 (uttering a
criminal threat) arose out of a single indivisible occurrence and the crimes were incident
to a single objective and intent. Defendant argues he was punished for the simultaneous
acts of pointing a knife at Linda and threatening to kill her and her family. Therefore,
under section 654, this court should stay defendant’s sentence on one of the two counts.
We agree.
The People contend the consecutive sentence on count 2 is proper because
defendant committed the two crimes alleged in counts 1 and 2 with separate intents and
objectives. The People argue the two separate crimes consisted of (1) defendant holding
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a knife to Linda’s throat, placing Linda in sustained, immediate fear for her own safety,
and (2) defendant threatening to cause great bodily injury or death to Linda and her
family. The People reason that defendant’s threat against Linda’s family was a separate
offense because Linda’s fear for her family continued, even after defendant removed the
knife from Linda’s throat. But defendant only made a criminal threat against Linda, even
though when he did so, he threatened her by telling her he would kill both Linda and her
family.
Based on the allegations stated in counts 1 and 2, the evidence presented at trial,
and the People’s closing argument, we conclude that counts 1 and 2 are not separate
crimes committed with separate intents and objectives. Defendant’s use of his knife by
pointing it at Linda was incidental to accomplishing or facilitating his single objective of
scaring Linda by threatening to kill her and her family. Defendant’s acts of pointing a
knife at Linda while threatening to kill her and her family were not separate and distinct
acts. The evidence, as well as the prosecutor’s closing argument, demonstrates that
defendant committed the crime of uttering a criminal threat within the course of
assaulting Linda with a knife. It is undisputed that when defendant committed both
crimes, he had the same intent and objective of placing Linda in sustained, immediate
fear for her and her family’s safety. Therefore, defendant cannot be punished twice for
the same acts under section 654.
Accordingly, section 654 proscribes multiple punishment for both counts 1 and 2.
Normally, under such circumstances, section 654 requires punishment “under the
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provision that provides for the longest potential term of imprisonment.” But, here,
defendant’s sentences on counts 1 and 2 are identical. Therefore, since count 1 is the
principal term, defendant’s sentence on count 2 shall be stayed under section 654.
VI.
FINES AND FEES
The trial court stated during sentencing that defendant, who was 44 years old,
should not be required to pay any court-ordered fines or fees, other than a $300 restitution
fine. Defendant argues that, because it is unclear whether the trial court was aware it had
the discretion not to impose the $300 restitution fine, this matter should be remanded to
allow the court to consider striking the $300 restitution fine. Alternatively, defendant
argues the prosecution failed to demonstrate defendant had the ability to pay the $300
restitution fine and, therefore, the matter should be remanded for an ability-to-pay
hearing. The People argue defendant does not have a constitutional right to an ability-to-
pay hearing as to the $300 restitution fine.
During the sentencing hearing, the trial court sentenced defendant to four
consecutive terms of 25 years to life, stayed defendant’s three prison priors (§ 667.5,
subd. (b)), and stayed defendant’s two nickel priors (§ 667, subd. (a)). The court then
addressed imposition of fines and fees, noting: “Any time I impose a long prison term, I
have absolutely no interest in being punitive towards the defendant. And that’s my view
unless there is restitution to a victim. I don’t see that here.” The court further stated that
“no amount of money would be imposed upon [defendant].” The court then stated that
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therefore defendant would not be ordered to pay the cost of the presentence probation
report and presentence incarceration fees. In addition, the court stated the $6,000
restitution fine and parole revocation restitution fine recommended by the probation
department were ordered reduced to the minimum fine of $300.
After the court stated it would impose a $514.59 booking fee, $120 criminal
conviction assessment fee, and $160 court operations assessment fee, defense counsel
requested those fees be stayed. Defense counsel indicated that those fees used to be
mandatory but no longer had to be imposed. The court responded that it would “stay
everything that I can stay pursuant to law because that’s consistent with my opening
remarks.” The court added that defendant “is going to prison for life, and I don’t think he
ought to be sending us his commissary money. . . . I’ll leave it at that.” The only fine or
fee the court ordered defendant to pay was the statutory minimum $300 restitution fine
and stayed $300 parole revocation restitution fine.
Defendant was sentenced on March 8, 2019, after Dueñas, supra, 30 Cal.App.5th
1157 was decided on January 8, 2019. The trial court’s order striking and staying several
mandatory statutory fees indicates the court was aware that it had the discretion not to
impose statutory fines and fees under Dueñas, and considered defendant’s ability to pay
the fines and fees. As to fines, the court in Dueñas held that “the execution of any
restitution fine imposed under [section 1202.4] must be stayed unless and until the trial
court holds an ability to pay hearing and concludes that the defendant has the present
ability to pay the restitution fine.” (Dueñas, supra, 30 Cal.App.5th at p. 1164; but see
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People v. Hicks (2019) 40 Cal.App.5th 320 [disagreeing with Dueñas], review granted
Nov. 26, 2019, S258946.)
We need not determine whether the holding in Dueñas, supra, 30 Cal.App.5th
1157, was correct and need not address defendant’s objection to the $300 restitution fine
because defendant forfeited his objection to the fine by failing to object during the
sentencing hearing. (People v. Gamache (2010) 48 Cal.4th 347, 409; People v. Jenkin
(2019) 40 Cal.App.5th 30, 40, review granted Nov. 26, 2019, S258729, and dismissed
July 29, 2020; People v. Forshay (1995) 39 Cal.App.4th 686, 689; People v. Gibson
(1994) 27 Cal.App.4th 1466, 1468-1469.)
Nevertheless, we will consider defendant’s objection to imposition of the $300
restitution fine on the merits, because the trial court clearly stated it intended to “stay
everything that I can stay pursuant to law because that’s consistent with my opening
remarks.” The only fine or fee the court ordered defendant to pay was the statutory
minimum $300 restitution fine. The trial court’s comments reflect that it would have
stayed the fine had the court been aware it could do so. Because the trial court had the
ability to stay the $300 restitution fine and clearly would have done so had it been aware
it could, the $300 restitution fine shall be ordered stayed.
VII.
DISPOSITION
The judgment is modified by (1) staying defendant’s sentence on count 2 (uttering
a criminal threat against Linda) under section 654, and (2) staying the $300 restitution
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fine. The judgment is affirmed in all other respects. The trial court is directed to
forward to the Department of Corrections and Rehabilitation an amended abstract of
judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
I concur:
MILLER
Acting P. J.
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[P. v. Hart, E072352]
MENETREZ, J., Concurring and Dissenting.
I concur in the majority opinion except for part V of the Discussion.
We review the trial court’s express or implied findings concerning application of
Penal Code section 654 for substantial evidence. (People v. Hutchins (2001) 90
Cal.App.4th 1308, 1312.) In my view, the trial court could reasonably have found that
(1) defendant’s intent in holding the knife to the victim’s throat was to assault her, (2) his
intent in telling the victim that he was going to kill her family was to make her fear for
her family’s safety, and (3) those intents were independent of each other, and neither
intent was incidental to the other. (People v. Pinon (2016) 6 Cal.App.5th 956, 968.) I
accordingly would affirm the imposition of consecutive sentences for the assault and
criminal threat convictions.
MENETREZ
J.
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