People v. Terrell CA3 ( 2023 )

Filed 5/30/23 P. v. Terrell CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Tehama)
----
THE PEOPLE, C095546
Plaintiff and Respondent, (Super. Ct. No. 21CR-000846)
v.
DENNIS ROBERT TERRELL,
Defendant and Appellant.
A jury found defendant Dennis Robert Terrell guilty of threatening and assaulting
his father. He now seeks to challenge his conviction for assault as well as his sentence.
We shall modify the judgment to stay execution of the sentence on count I pursuant to
Penal Code section 6541 and to award two additional days of credit for presentence
custody and affirm the judgment in all other respects.
1 Undesignated statutory references are to the Penal Code.
1
FACTUAL AND PROCEDURAL BACKGROUND
In March 2021, defendant’s father, Dennis Frank Terrell (Terrell), found
defendant in Terrell’s kitchen. Terrell told defendant he had to leave. When defendant
refused, Terrell called 911.
In the call, Terrell told the 911 operator that his son was trying to stab him and
was threatening him with a knife. Defendant is heard in the background demanding to
know what happened to his dad and accusing Terrell of taking defendant’s child. Terrell
repeatedly asked the operator for help. Defendant threatened, “I’ll stick this in your
fucking neck if you don’t tell me where my father is.” Terrell told the operator that he
could not leave because “he’s got me down on the couch.” Defendant told Terrell that he
was not his dad and was trying to take over his parents’ home. Defendant demanded that
Terrell hang up the phone and the call ended. A few minutes later, Terrell called 911
again and reported that he was able to convince defendant to leave.
At trial, Terrell explained the interaction with defendant on that day. He testified
that during the call Terrell tried to distance himself from defendant and went into the
front room where he ended up on the couch with defendant standing over him.
Defendant asked him, “What have you done with my father?” and yelled at Terrell
saying, “I am going to jam this into your eye and cut your f’n throat.” Terrell said there
appeared to be something metallic in defendant’s hand, but he was not sure what
defendant was holding. Terrell could not recall whether defendant swung or thrust his
hand toward Terrell; he was focused on putting distance between himself and defendant.
Defendant asked where his son was and Terrell answered that he was at school, which
seemed to calm defendant. Defendant kept cursing at Terrell and knocked a pillow out of
Terrell’s hand. Terrell told defendant he would get his son for him, and defendant left.
Defendant was charged with committing assault with a deadly weapon (count I;
§ 245, subd. (a)(1)) and criminal threats (count II; § 422, subd. (a)). As to count II, it was
further alleged that defendant personally used a deadly weapon, a knife (§ 12022, subd.
2
(b)(1)). Prior to deliberating, the jury was instructed it could consider lesser included
offenses of assault and attempted criminal threats for each respective count.
The jury deadlocked as to count I and returned a verdict of guilty on the lesser
included offense of assault (§ 240). The jury also found defendant guilty of criminal
threats, the original charge, in count II (§ 422, subd. (a)), but was deadlocked as to the
special allegation that he used a deadly weapon (§ 12022, subd. (b)(1)). The court
granted the prosecution’s motion to dismiss the greater charged offense (§ 245, subd.
(a)(1)) in count I, accepted and recorded the verdict on the lesser included offense as to
count I, dismissed the special allegation as to count II, accepted and recorded the verdict
on count II, and then discharged the jury.
On January 3, 2022, the trial court sentenced defendant to the upper term of three
years on count II, and a concurrent term of 120 days on count I.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Verdict
Defendant asserts that when the trial court told the jury to go back to the
deliberation room and fill out the verdict forms as to the charged and lesser included
offenses, the court directed a verdict of guilty on assault, the lesser included offense. The
People contend that any error was invited when defense counsel accepted the entry of a
guilty verdict on the assault charge and forfeited any challenge to that verdict by failing
to object at trial. We affirm.
A. Additional Background
On the second day of deliberations, the jury sent a note indicating it reached a
verdict on one count but had a disagreement on others. The court released the jury for
lunch and requested it to return at 12:30 p.m. to continue to deliberate.
3
At about 2:30 p.m., the court informed counsel it received a note from the jury
indicating it was “at an impasse on a certain count and/or special allegation.” The court
indicated that, prior to accepting any verdicts, it would ask the jury panel whether it was
deadlocked. The parties agreed to that approach. The foreperson subsequently told the
court that the jury reached a verdict on a lesser included offense but it was “[t]he higher
count above that we can’t reach a verdict on.” The court stated that in order to reach a
full verdict on the lesser included offense, the jury had to first reach a full verdict on the
greater offense. The foreperson agreed that was the jury’s understanding of the
instructions. The foreperson indicated that on one charge the jury was deadlocked on the
higher count, which impacted the jury’s deliberations on the special allegation on the
other count. The court directed the jurors to go back into the jury deliberation room,
review the jury instructions, and then complete any verdict forms that they could.
At 3:40 p.m., the court called the parties to discuss the verdict forms submitted by
the jury. The trial court had reviewed the verdict forms prior to meeting with the parties.
Out of six verdict forms, only one was completed. The court told the parties that it
planned to provide the jury another opportunity to deliberate. If the jury said it could not
reach a verdict, the court’s intention would be to declare the jury deadlocked as to that
count and it would refuse to accept the guilty verdict on the lesser included offense
because the verdict would not be compliant with the law. Regarding the other count, the
court would accept the verdict the jury reached. The People agreed to that approach.
Defense counsel agreed it would be best to resolve any deadlock “and then, after that, I
believe the Court has full discretion to do as it sees fit.”
During a subsequent colloquy with the foreperson, the foreperson confirmed the
jury was deadlocked on count I. The foreperson stated that the jury thought it had to find
defendant not guilty of the charged offense before it could find defendant guilty of the
lesser included offense, and that “we would have found him guilty of the lesser charge.”
The court told the jury that it may not convict on a lesser included offense until it had
4
acquitted on the greater offense. The court then invited the jury to deliberate further,
stating, “If you can’t reach a verdict, then I am going to address that. If you can, I am
going [to] address that as well; but you cannot convict on a lesser unless you acquit,
meaning not guilty, on a greater.” The foreperson said, “That’s the way we understood
the instructions.” The court told the foreperson, if “you believe you are hopelessly
deadlocked, then, obviously, you don’t fill out either form.” The jury resumed
deliberations.
Later that day, the court informed the parties that the verdicts were returned in the
same condition as previously submitted and there was “nothing on the lesser included
filled out as to Count 1.” The court planned to instruct the jury to fill out the form for the
lesser included on count I if it had reached a unanimous verdict. The court stated,
“Whether the Court can accept it and whatever happens with it really is not their
concern.” The parties both agreed to this approach. Addressing the jury, the court said
its understanding was that the jury had reached a full verdict on the lesser included as to
count I. The foreperson agreed, and the court told the foreperson the jury needed to
indicate that on the form. The foreperson said, “Oh, we were told we couldn’t.” The
court told the jury that if it has reached a full verdict on that lesser included or any other
count, it has to be done in the deliberation room and indicated on the form. The jury
returned to the deliberation room.
Outside the presence of the jury, the trial court advised the attorneys that should
the jury return a verdict of guilty on the lesser offense in count I, and not return any
verdict as to the greater charge, “I gave you what I believe to be the options under People
v Fields.” Quoting from Fields, the trial court continued: “Should this occur, the
incomplete verdict of conviction on the lesser included offense initially rendered by the
jury is of no effect. [¶] . . . [¶] And the prosecutor may move the trial court to declare a
mistrial, discharge the jury, et cetera, and set the entire matter for retrial . . . . [¶]
Alternatively, when faced with a deadlock on the greater offense and a verdict of guilt on
5
the lesser included, which is what I anticipate is going to happen when they come back,
the People may prefer to forgo the opportunity to convict the accused of the greater
offense on retrial in favor of obtaining a present conviction on the lesser. In that this
case, the People should move the trial court to exercise its discretion to dismiss the
charge on the greater in furtherance of the justice under 1385.” (See People v. Fields
(1996) 13 Cal.4th 289, 311 (Fields).) In response, the prosecutor said it appeared that the
jury was unable to render a verdict as to the principal charge in count I and requested the
court declare a mistrial. Defense counsel said if the jury remained deadlocked on count I,
he would request the jury be polled.
When the jury returned, the court noted that the verdict form as to count I was not
completed, nor was the lesser included offense with respect to count II, and there was no
verdict form for the special allegation linked to count II. The jury, however, had
completed some of the verdict forms, including for the lesser offense to count I. When
the trial court asked for clarification, the foreperson confirmed that the jury was
deadlocked on the principal charge in count I, the lesser included offense in count II, and
the special allegation associated with count II. The foreperson also confirmed the jury
reached verdicts as to a lesser included offense on count I and on the charged offense in
count II. The foreperson explained the jury thought it had to reach a verdict on count I
before it could consider the special allegation in count II.
The court then polled the jury. Each panel member said there was nothing that
could be done to enable the jury to reach a unanimous verdict as to count I or the special
allegation on count II. The parties agreed that the jury was hopelessly deadlocked as to
count I and as to the special allegation in count II. The court read the verdicts of guilty of
assault as a lesser included offense of the charged assault with a deadly weapon in count I
and guilty of criminal threats. The jury was polled.
The prosecutor requested the court dismiss count I in the interest of justice
pursuant to section 1385. Defense counsel had no objection. The court asked whether
6
each party “waive[d] any defect therein,” and each party agreed. The court granted the
People’s request to dismiss the charge of violating section 245 and directed the clerk to
record a guilty verdict as to section 240 as a lesser included offense with respect to count
I. The court also ordered the clerk to enter the guilty verdict as to count II and dismissed
the special allegation attached to count II.
B. Analysis
In Stone v. Superior Court (1982) 31 Cal.3d 503, 519 (Stone),2 the Supreme Court
held that “when a trial judge has instructed a jury on a charged offense and on an
uncharged lesser included offense, one appropriate course of action would be to provide
the jury with forms for a verdict of guilty or not guilty as to each offense.”
“Under the acquittal-first rule, a trial court may direct the order in which jury
verdicts are returned by requiring an express acquittal on the charged crime before a
verdict may be returned on a lesser included offense.” (People v. Bacon (2010)
50 Cal.4th 1082, 1110.) Although the jury must record its findings on the verdict forms
in this order, it may consider and discuss lesser offenses at any time during deliberations.
(Fields, supra, 13 Cal.4th at p. 309, citing People v. Kurtzman (1988) 46 Cal.3d 322, 333
(Kurtzman); see also Stone, supra, 31 Cal.3d at p. 519; CALCRIM No. 3517.) Our
Supreme Court has encouraged trial courts to give this “so-called Kurtzman” instruction
at the outset of jury deliberations but has held it must do so when jurors express their
inability to agree on a greater inclusive offense. (Fields, at pp. 309-310.) “[T]he trial
court commits error if it receives and records a verdict of guilty on the lesser included
offense without ever having given the jury an acquittal-first instruction.” (Id. at p. 310.)
When deliberations appear to be at an impasse, the court may ask the jury if it is
unable to reach a verdict. “When . . . the jurors express their inability to agree on a
2 Abrogated in part in People v. Aranda (2019) 6 Cal.5th 1077, 1086.
7
greater inclusive offense, while indicating they have reached a verdict on a lesser
included offense, the trial court must caution the jury at that time that it ‘may not return a
verdict on the lesser offense unless it has agreed . . . that defendant is not guilty of the
greater crime charged.’ ” (Fields, supra, 13 Cal.4th at pp. 309-310, quoting Kurtzman,
supra, 46 Cal.3d at p. 329.) As the trial court in this case noted, should the jury still
decline to return the requisite verdict of acquittal of the greater offense, “the incomplete
verdict of conviction on the lesser included offense initially rendered by the jury is of no
effect, and the prosecutor may move the trial court to declare a mistrial, discharge the
jury, and set the entire matter for retrial. (§§ 1140, 1141; People v. Avalos (1984)
37 Cal.3d 216, 228.) Alternatively, when faced with a deadlock on the greater offense
and a verdict of guilt on the lesser included offense, the People may prefer to forgo the
opportunity to convict the accused of the greater offense on retrial in favor of obtaining a
present conviction on the lesser included offense. ([People v. ]Zapata (1992)
9 Cal.App.4th 527, 534.)[3 ] In that case, the People should move the trial court to
exercise its discretion to dismiss the charge on the greater offense in furtherance of
justice under section 1385. (See People v. Bordeaux (1990) 224 Cal.App.3d 573, 581-
582 [right to mistrial under section 1140 does not impair trial court’s authority to dismiss
charge pursuant to section 1385].)” (Fields, supra, 13 Cal.4th at p. 311.)
De novo review is applicable in assessing whether instructions correctly state the
law and whether instructions effectively direct a finding adverse to a defendant by
removing an issue from the jury’s consideration. (People v. Posey (2004) 32 Cal.4th 193,
218.)
Defendant argues the trial court violated the rule established in Stone, Kurtzman,
and Fields when, with respect to count I, it directed the jury to return a verdict on the
3 Disapproved on other grounds in Fields, supra, 13 Cal.4th at p. 305.)
8
lesser included offense and then accepted the verdict on the lesser without receiving a
verdict on the greater charge. Stone, Kurtzman, and Fields may be “read to authorize an
instruction that the jury may not return a verdict on the lesser offense unless it has agreed
. . . that the defendant is not guilty of the greater crime charged, but it should not be
interpreted to prohibit a jury from considering or discussing the lesser offenses before
returning a verdict on the greater offense.” (Fields, supra, 13 Cal.4th at p. 304, quoting
Kurtzman, supra, 46 Cal.3d at p. 329 & citing Stone, supra, 31 Cal.3d 503.) In this case,
the trial court initially instructed the jury under Stone, Kurtzman, and Fields. In addition,
when it was clear the jury was deadlocked on the greater offense but had reached an
agreement on the lesser included offense, the court directed the jury to reconsider its
decision in light of section 1161, Kurtzman, and Fields. (See § 1161; Fields, supra,13 Cal.4th at pp. 310-311.) However, the court went beyond Kurtzman and Fields, and
directed the jury to return a written verdict on the lesser included offense, which it
ultimately did. This was error. Yet as defendant specifically agreed to the trial court’s
action in directing the jury to complete the verdict form, defendant has waived any
challenge to the court’s erroneous directive.
Here, the trial court instructed the jury on the acquittal-first rule at the outset and
again when the jury declared an impasse as to the greater charge in count I. The court
informed the jury, in part, that “[i]f all of you cannot agree whether the People have
proved that the defendant is guilty of the greater crime, inform me only that you cannot
reach an agreement and do not complete or sign any verdict form for that count.”
(CALCRIM No. 3517.) In accordance with that instruction, the jury informed the court
of the impasse and repeatedly returned a blank verdict form as to count I. When
questioned about the blank forms, the foreperson said that the jury “would have found
him guilty of the lesser charge” of assault as to count I but understood that it could not do
so unless it unanimously found defendant not guilty of the greater offense of assault with
a deadly weapon, and the jury was deadlocked on that issue. Even after the court directed
9
the jury to reconsider its agreement on the lesser included offense in light of the acquittal-
first rule, it was clear the jury could not agree on acquitting defendant of the charge of
assault with a deadly weapon but agreed defendant was guilty of committing the lesser
crime of assault. In light of this, the jury correctly understood it should not complete the
verdict form as to count I.
However, the trial court was apparently under the impression that the jury was
required to indicate their agreement on the lesser included offense on the verdict form
while in the deliberation room. This is incorrect. The court’s insistence that the jury fill
out the verdict form deviated from the statutory procedures that trial courts must follow
in receiving a jury verdict. “Once a case has been given over to the jury’s consideration,
courts have been repeatedly cautioned to refrain from inquiry or conduct that might
invade the jury’s province or improperly influence their deliberations.” (People v.
Aranda, supra, 6 Cal.5th at p. 1095.) “[W]hen a foreperson or any juror alerts the court
that the panel has unanimously resolved a count, the court must act, but with care . . . .”
(Ibid.; see also §§ 1147, 1149, 1161, 1163, 1164, subd. (a).) The statutory provisions that
formalize the receipt of a verdict, affirmation by the entire panel, and polling before the
verdict is recorded are intended to reduce the likelihood of a trial court unduly, even if
inadvertently, influencing the jury to reach a particular outcome. (People v. Carbajal
(2013) 56 Cal.4th 521, 531.) Nevertheless, when defense counsel specifically agreed to
the trial court’s insistence that the jury indicate its agreement on the lesser offense in
writing, defendant waived any challenge to this approach. (See People v. Valdez (1995)
33 Cal.App.4th 1633, 1638-1639 [acquiescence without objection in trial court’s
procedural error waives the defect].)
Even if not waived, this error did not constitute a directed or coerced verdict, as
defendant claims. In open court, the jurors announced they were deadlocked on the
greater offense in count I and submitted their verdict on the lesser included offense in
count I, both of which were confirmed through jury polling. However, the trial court did
10
not order the verdicts recorded. Because the true verdict was the oral declaration and not
the act of submitting the verdict forms, the jury’s act of filling out the form, albeit at the
court’s insistence, essentially constituted a tentative verdict consistent with previous
indications of the agreement until the true verdict could be rendered in open court. (Cf.
People v. Lankford (1976) 55 Cal.App.3d 203, 211, dictum on another point disapproved
in People v. Collins (1976) 17 Cal.3d 687; see also People v. Green (1995)
31 Cal.App.4th 1001, 1009 [the submission of the written verdict forms does not
constitute the return of the verdict].) Upon receiving the jury’s verdict and orally
pronouncing it, there were two options under Fields: The trial court could declare a
mistrial or grant the prosecutor’s request to dismiss the charge on the greater offense
under section 1385. (Fields, supra, 13 Cal.4th at p. 311.) Here, the prosecutor requested
the court exercise its discretion and dismiss count I in the interest of justice and enter the
verdict of guilty on the lesser included offense of assault. Defense counsel had no
objection, and the trial court granted the request and only then ordered the clerk to record
the verdict on the assault.4 This record demonstrates the trial court employed one of the
remedies suggested by the Fields court: allowing the prosecutor to forgo the opportunity
to convict the accused of the greater offense on retrial in favor of obtaining a present
conviction on the lesser included offense by seeking dismissal of the charge on the
greater offense under section 1385. (Fields, at p. 311.) Again, we note that defense
counsel was asked, and specifically indicated, he had no objection to dismissal of the
greater offense and recording of the verdict on the lesser offense. Pursuant to section
4 “Generally, a verdict is complete under section 1164 if it has been read and
received by the clerk, acknowledged by the jury, and recorded. (People v. Hendricks
[(1987)] 43 Cal.3d [584,] 597.)” (People v. Bento (1998) 65 Cal.App.4th 179, 188.) Up
to that point, whether it is on a written form or not, a jury’s verdict is not unassailable.
(See id. at pp. 189-191 [holding that a juror’s ability to declare that he dissents from the
verdict such that the jury must be sent out for deliberations expires when the verdict is
complete].)
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1385, subdivision (a), the trial court was authorized to dismiss the assault with a deadly
weapon charge, thus permitting the jury to render a verdict on the lesser included offense
of assault, when the jury indicated during its deliberations that it was deadlocked on the
greater charge. (Cf. People v. Bordeaux, supra, 224 Cal.App.3d at p. 581 [“The removal
of first degree murder from the case by the court, with the consent of the prosecutor,
constitute[s] a form of dismissal authorized by . . . section 1385. The discretion of the
judge to dismiss a charge under . . . section 1385 in the interests of justice may be
exercised, . . . at any time during the trial, while the case is before the jury or even after a
jury verdict” (fn. omitted)].)
Defendant’s claim that the dismissal effectively led to a directed verdict of guilty
on the assault offense lacks merit. Although the trial court was aware of the jury’s
decision on the lesser offense to count I, none of the trial court’s actions indicated its
preference for a particular verdict, nor did the trial court exert pressure on any dissenting
jurors, show exasperation, or expressly or impliedly threaten the jury. (See People v.
Bordeaux, supra, 224 Cal.App.3d at p. 583; cf. People v. Carter (1968) 68 Cal.2d 810,
819-820.) The jury repeatedly told the court that it had reached a decision on the lesser
included charge; the problem lay in the inability to record the decision since the jury was
deadlocked as to whether defendant was not guilty of the greater charge. By removing
the greater offense from consideration, the court did not direct a verdict. Rather, the jury
was free to render the verdict it consistently signaled it wished to return. Thus, the record
shows the jury’s verdict on the lesser charge was independent of the trial court’s
instructions.
People v. Bordeaux, supra, 224 Cal.App.3d 573 is instructive. In that case, the
jury informed the court it was deadlocked as to the charge of first degree murder and felt
it could not move on to resolve the issue of second degree murder. During a conference,
the parties discussed the possibility of declaring a mistrial. Instead, the court granted the
People’s motion to dismiss the first degree murder charge under section 1385. When the
12
jury confirmed it was deadlocked on first degree murder, the trial court told the jury the
first degree murder charge was removed from consideration and the jury was to consider
second degree murder. After deliberating for 12 minutes, the jury returned a verdict of
guilty on second degree murder. (Bordeaux, at pp. 578-579.)
On appeal, the appellate court rejected the defendant’s claim that the dismissal
violated his right to a mistrial under section 1140. The court stated, “The statutory
provision for a mistrial ([§ ]1140) . . . has no application under the facts of this case
where the first degree murder charge is in effect dismissed. This is because any asserted
right to a mistrial under . . . section 1140 does not impair the right of a trial court to
dismiss a charge under . . . section 1385.” (People v. Bordeaux, supra, 224 Cal.App.3d at
p. 582.) The court also rejected the defendant’s claim that dismissal of a first degree
murder charge under section 1385, with instructions to consider second degree murder,
coerced the jury to return a verdict of second degree murder. (Bordeaux, at p. 582.) The
appellate court held that the dismissal was not coercive and noted that “dismissal of first
degree murder under the circumstances here benefits both defendant and the criminal
justice system.” (Ibid.) The court went on to hold that “since the charge of first degree
murder had in effect been dismissed from the case and jeopardy had attached, there was
no violation of either Stone or Kurtzman.” (Id. at p. 581.)
Similarly, since the felony charge was dismissed before the trial court recorded the
verdict on the lesser, there was no violation of Stone or Kurtzman, no violation of
defendant’s right to a mistrial, and dismissal of the assault with a deadly weapon charge
aided defendant by relieving him of the possibility of another felony conviction, indeed a
felony conviction that qualified under the three strikes law, and instead awarded
defendant a misdemeanor conviction. Defense counsel expressly agreed to this outcome
and defendant has waived any right to claim aggrievement now. (See § 1159; People v.
Solis (2015) 232 Cal.App.4th 1108, 1120 [a defendant may expressly or impliedly
consent to be convicted of a lesser included or lesser related offense].)
13
In light of our conclusion, we need not address defendant’s remaining arguments
regarding double jeopardy.
II
Sentencing
Defendant raises several challenges to his sentence. He contends that the trial
court erred in imposing the upper term sentence on count II in light of new legislative
changes to the sentencing scheme under section 1170. He also claims his sentence for
count II should be stayed pursuant to section 654 because the two offenses were
committed with the same criminal objective. Finally, he claims that fines and fees were
erroneously included on the abstract of judgment when the trial court did not orally
impose them. He maintains he is entitled to a new sentencing hearing.
In anticipation of the sentencing hearing, the probation department filed an eight-
page report, with an additional worksheet listing the recommended financial obligations.
The report reflected an opinion that the “crimes and their objectives were not independent
of each other” as well as a recommendation that the trial court impose a prison sentence
in light of defendant’s current serious felony conviction for section 422. (See §§ 1170,
subd. (h)(3), 1192.7, subd. (c)(38).)
At sentencing, which took place on January 3, 2022, the trial court imposed a
prison term of three years for the criminal threats conviction (count II) and a concurrent
term of 120 days for the assault conviction (count I). In justifying the imposition of the
upper term on count II, the court made the following findings: “The defendant has three
prior felonies. [Defense counsel], you did indicate correctly -- and that includes one
misdemeanor -- that they are rather dated, but his prior supervision was revoked and he
ended up serving three years, eight months in state prison between two of those cases.”
The court also stated that “defendant takes absolutely no responsibility for his actions, at
14
least as what he told probation. There is no level of remorse, let alone any kind of
responsibility and that does not bode well.”
A. Section 1170
Defendant contends we must remand the matter for resentencing in light of Senate
Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567), which limits the circumstances
under which a trial court may impose the upper term. (§ 1170, subd. (b).) The People
disagree, arguing that any error was harmless.
Senate Bill 567, effective January 1, 2022, changed the requirements for using
aggravating circumstances and altered sentencing discretion under section 1170. (Stats.
2021, ch. 731.) Among other things, Senate Bill 567 amended section 1170 to prohibit
upper term sentencing unless factors in aggravation are stipulated to by the defendant,
proven to a fact finder beyond a reasonable doubt, or established by a certified record of
conviction. (§ 1170, subd. (b)(2), (3).)
Defendant argues that remand for resentencing is required because a probation
report does not meet the statutory requirements of a certified record of conviction under
section 1170, subdivision (b)(3), and there was no stipulation or a jury finding that any
aggravating factors were true beyond a reasonable doubt.
Here, defendant was sentenced after Senate Bill 567’s effective date. (Stats. 2021,
ch. 731, eff. Jan. 1, 2022.) Both counsel and the court are presumed to know applicable
law. (See People v. Thomas (2011) 52 Cal.4th 336, 361 [“In the absence of evidence to
the contrary, we presume that the court ‘knows and applies the correct statutory and case
law’ ”]; People v. Barrett (2012) 54 Cal.4th 1081, 1105 [counsel is “presumed competent
and informed as to applicable constitutional and statutory law”].) Defendant could have,
but did not, object during the sentencing hearing that the probation report was insufficient
15
to establish his prior convictions.5 Because this legislation was in effect at the time of
defendant’s sentencing hearing, by failing to raise the applicability of Senate Bill 567’s
ameliorative provisions he has forfeited the argument on appeal. (People v. Scott (1994)
9 Cal.4th 331, 351; People v. Flowers (2022) 81 Cal.App.5th 680, 683-684 [the appellant
forfeited argument that the trial court erred in imposing the upper term pursuant to § 1170
as it existed at the time he was sentenced because he failed to object to the upper term
sentence when it was imposed], review granted Oct. 12, 2002, S276237; People v. Garcia
(2010) 185 Cal.App.4th 1203, 1218 [“ ‘[c]laims of error relating to sentences “which,
though otherwise permitted by law, were imposed in a procedurally or factually flawed
manner” are waived on appeal if not first raised in the trial court’ ” (italics omitted)].)
B. Section 654
“[S]ection 654 proscribes double punishment for multiple violations of the Penal
Code based on the ‘same act or omission.’ ” (People v. Siko (1988) 45 Cal.3d 820, 822.)
Effective January 1, 2022, section 654, subdivision (a) provides in pertinent part that
“[a]n act or omission that is punishable in different ways by different provisions of law
may be punished under either of such provisions, but in no case shall the act or omission
be punished under more than one provision.” (§ 654, subd. (a).)
“The question of whether section 654 is factually applicable to a given series of
offenses is for the trial court, and the law gives the trial court broad latitude in making
this determination.” (People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1113.) Where
the trial court makes no express findings regarding section 654, we consider whether
substantial evidence supports an implied finding of separate transactions. (See People v.
Islas (2012) 210 Cal.App.4th 116, 129; DeVaughn, at p. 1113.) “We uphold the trial
5 Defendant does not assert counsel was ineffective for failing to object. To the
extent any evidence exists outside the record that counsel was unaware of the new
legislation, that may be a challenge appropriate for a petition for writ of habeas corpus.
16
court’s ruling when substantial evidence supports it. [Citation.] This standard of review
is exceedingly deferential. [Citation.]” (People v. Venegas (2020) 44 Cal.App.5th 32,
38.)
“Whether a defendant may be subjected to multiple punishment[s] under section
654 requires a two-step inquiry, because the statutory reference to an ‘act or omission’
may include not only a discrete physical act but also a course of conduct encompassing
several acts pursued with a single objective. [Citations.] We first consider if the
different crimes were completed by a ‘single physical act.’ [Citation.] If so, the
defendant may not be punished more than once for that act. Only if we conclude that the
case involves more than a single act—i.e., a course of conduct—do we then consider
whether that course of conduct reflects a single ‘ “intent and objective” ’ or multiple
intents and objectives.” (People v. Corpening (2016) 2 Cal.5th 307, 311.)
Here, the trial court imposed concurrent sentences on defendant for criminal
threats and assault with little explanation. Accordingly, we presume the trial court found
defendant had independent objectives for committing the criminal threats in contrast to
the assault. (People v. Alford (2010) 180 Cal.App.4th 1463, 1468.) But this
determination is not supported by substantial evidence.
The parties assert defendant committed the offenses as part of a single course of
conduct but disagree whether they were committed with a single objective. Defendant
contends the trial court should have stayed execution of the sentence imposed on his
conviction for making criminal threats pursuant to section 654 because he “acted with
one objective during the commission of the act resulting in the criminal threats charge
and the assault charge, that is, to find his family.” The People argue defendant had
separate objectives when, in making criminal threats, defendant intended to frighten his
father but, in committing the assault, he intended to physically injure his father. We
conclude the execution of defendant’s sentence on one of the counts must be stayed under
section 654 because defendant made the criminal threat while he assaulted his father, for
17
the single purpose of frightening his father into revealing the whereabouts of his family.
Because we also conclude that the trial court clearly intended defendant to serve a
sentence of three years when it imposed a term of three years on count II and ordered the
120-day sentence on count I to run concurrently, we will modify the judgment to stay the
term of 120 days imposed on count I.
First, we conclude the assaultive conduct was based on the same acts as the
criminal threats. Defendant followed Terrell to another room and stood over Terrell, who
was on the couch. Defendant asked where his father was and threatened to stick a metal
object in Terrell’s neck if Terrell did not tell defendant the location of his father. Terrell
saw the metal object in defendant’s hand but could not identify it. Terrell also did not say
that defendant swung or thrust his hand at Terrell. This single threat, carried out while
standing over Terrell with a metal object in his hand, constituted a criminal threat under
section 422 as well as the assault under section 240. (See In re David L. (1991)
234 Cal.App.3d 1655, 1659 [§ 422 contemplates a threat so “ ‘unequivocal,
unconditional, immediate, and specific’ ” that it conveys to the victim an “ ‘immediate
prospect of execution’ ”]; § 240 [“An assault is an unlawful attempt, coupled with a
present ability, to commit a violent injury on the person of another”].) As such, one of
defendant’s sentences must be stayed under section 654. (See People v. Corpening,
supra, 2 Cal.5th at p. 316 [“Where the same physical act accomplishes the actus reus
requirement for more than one crime, that single act cannot give rise to multiple
punishment”].)
Moreover, defendant had a single objective during the offenses: to find members
of his family. In this regard, People v. Britt (2004) 32 Cal.4th 944 is instructive. In Britt,
the court ruled that section 654 precluded multiple punishment for a sex offender’s
failures to notify authorities in a county the defendant moved to, as well as the authorities
in the county the defendant moved from, each of which constituted separate sex-offender
registration crimes. (Britt, at pp. 949, 951-954.) The court disagreed with the decision
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on review, which concluded that defendant “had two separate objectives: ‘(1) to mislead
law enforcement and the residents of one community to believe that the sex offender
remains there; and (2) to conceal from law enforcement and the residents of another
community the fact that the sex offender is now residing in that community.’ ” (Id. at
p. 953.) The court explained, “Here the objective—avoiding police surveillance—was
achieved just once, but only by the combination of both reporting violations.” (Ibid.)
“[F]inding separate objectives here—to mislead or conceal information from the law
enforcement agency in each county—parses the objectives too finely.” (Ibid.) Here,
defendant’s single objective was to frighten his father into explaining the whereabouts of
family members. Although the People attempt to characterize defendant’s objective as an
intent to emotionally harm Terrell separate from his intent to physically harm Terrell, in
light of Britt, this requires too fine a parsing. Defendant made one threat of physical
harm, contingent upon Terrell’s failure to provide the whereabouts of defendant’s family.
Because the trial court’s implicit determination that defendant had separate and
independent objectives for committing the assault and criminal threat offenses is not
supported by substantial evidence, defendant may be punished only for one of the
offenses. Defendant argues one of his sentences must be stayed but does not provide any
analysis or reason for choosing which sentence to stay.
Here, in imposing sentence, the court referenced defendant’s prior convictions,
noting that he had three prior felonies and while they were “rather dated,” he previously
had his supervision revoked and defendant “ended up serving three years, eight months in
state prison between two of those cases.” The court also stated that “defendant takes
absolutely no responsibility for his actions, at least as what he told probation. There is no
level of remorse, let alone any kind of responsibility and that does not bode well.” From
these comments, it is clear the trial court intended defendant to serve a sentence of three
years when it imposed a term of three years on count II and ordered the 120-day sentence
on count I to run concurrently. We may refuse to remand a case for resentencing if the
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record shows that to do so would be futile. (See People v. Lopez (2019) 42 Cal.App.5th
337, 342.) Accordingly, rather than remand, we will modify the judgment to stay the term
of 120 days imposed on count I.
C. Fines and Fees
Defendant argues the court erred when it failed to hold a hearing on his ability to
pay fines and fees and failed to include fines and fees in its oral pronouncement of
judgment but included them on the abstract of judgment. He requests that we either
strike the fines and fees or remand the matter back to the trial court for a hearing on his
ability to pay them. We disagree.
The probation report reflected a recommendation that the trial court impose: a
court operations assessment pursuant to section 1465.8 in the amount of $80; a conviction
assessment of $60 pursuant to section 70373 of the Government Code; and a restitution
fine in the amount of $600 pursuant to section 1202.4, subdivision (b), with an identical
amount imposed but stayed upon the successful completion of parole pursuant to section
1202.45. After imposing the sentence, the court asked the parties whether they “waive[d]
formal reading of the remaining terms and conditions?” Counsel for each party answered
in the affirmative. The court stated, “And those will be adopted in their entirety as if read
into the record and incorporated into the judgement and sentence.” 6 The trial court did
not otherwise specifically refer to any fines or fees. The abstract of judgment lists
defendant’s financial obligations as $600 pursuant to sections 1202.4, subdivision (b) and
1202.45, $80 pursuant to section 1465.8, and $60 pursuant to Government Code section
70373.
6 The minute order from this day reflects “The Court read and considered probation
officers report & recommendation [¶] . . . [¶] The Court adopts the terms and conditions
listed [in] pages 1-8 [in their] entirety. As if read into the record in their entirety and
incorporated into the judgment and sentence.”
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Contrary to defendant’s contention, the record reflects that the trial court imposed
the fines and fees by incorporating the recommendations in the probation report into its
ruling with no objection from the parties. This method promotes the imposition of
correct sentences by allowing the parties the opportunity to see the exact items ordered at
sentencing and to raise timely objections to correct errors at the time the fines and fees
are imposed. In People v. Hamed (2013) 221 Cal.App.4th 928, the appellate court stated:
“[I]n cases where the amounts and statutory bases for the penalty assessments have been
set forth in a probation report, a sentencing memorandum, or some other writing, the
court could state the amount and statutory basis for the base fine and make a shorthand
reference in its oral pronouncement to ‘penalty assessments as set forth in the’ probation
report, memorandum, or writing as authorized in Sharret and Voit. (See [People v.]
Sharret [(2011)] 191 Cal.App.4th [859,] 864; [People v.] Voit [(2011)] 200 Cal.App.4th
[1353,] 1373.) By itemizing and listing the component parts of base fines and penalty
assessments prior to sentencing, the parties would have an opportunity to identify and
correct errors in the trial court, avoiding unnecessary appeals.” (Id. at pp. 939-940.)
Citing People v. Dueñas (2019) 30 Cal.App.5th 1157, decided several years before
defendant’s sentencing hearing, defendant additionally argues that the trial court violated
his right to due process by imposing these financial obligations without first finding he
had the ability to pay them. Defendant also asserts that the restitution fine is excessive
under the Eighth Amendment.
Defendant failed to raise an objection before the trial court, on imposition of the
fines and fees without a determination of his ability to pay. The absence of a timely
objection on ability to pay grounds forfeits defendant’s challenges to the restitution fine
and assessments on that basis. (See, e.g., People v. Frandsen (2019) 33 Cal.App.5th
1126, 1153-1154; People v. Greeley (2021) 70 Cal.App.5th 609, 624.) Defendant’s
Eighth Amendment and equal protection claims are similarly forfeited based on his
failure to raise them below. (See, e.g., People v. McCullough (2013) 56 Cal.4th 589,
21
592-593 [constitutional challenge to booking fee forfeited]; People v. Torres (2019)
39 Cal.App.5th 849, 860 & fn. 4 [excessive fines claim forfeited in absence of timely
objection].) As McCullough makes clear, forfeiture principles apply to constitutional
claims. (McCullough, at p. 593; see also In re Sheena K. (2007) 40 Cal.4th 875, 880-881
[“ ‘ “[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” ’ ”].)
D. Custody Credits
The court awarded 240 actual days of credit toward his sentence and an additional
240 days of credit for good conduct under section 4019, for a total of 480 days of credit
toward defendant’s sentence. Defendant contends, and the People agree, that he is
entitled to an extra day of credit in each category for a total of 482 days. We agree and
will modify the judgment to reflect total presentence custody credits in the amount of 482
days (241 actual and 241 conduct credits).
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DISPOSITION
We modify the judgment to stay the execution of sentence imposed on count I,
pursuant to section 654, and to award an extra day of both actual and conduct presentence
credit for time spent in custody. In all other respects, the judgment is affirmed as
modified. We direct the clerk of court to amend the abstract of judgment to reflect the
stay of execution of sentence on count I, pursuant to section 654, and the award of 241
days of actual credit with 241 days of conduct credits pursuant to section 4019 and to
forward the amended abstract of judgment to the parties, including the California
Department of Corrections and Rehabilitation.
/s/
EARL, J.
We concur:
/s/
HULL, Acting P. J.
/s/
DUARTE, J.
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