People v. Terrell CA4/1 ( 2023 )

Filed 8/24/23 P. v. Terrell 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080224
Plaintiff and Respondent,
(Super. Ct. No. SCE403446)
v.
MINOR TERRELL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Patricia K. Cookson, Judge. Affirmed, as modified.
Dawn S. Mortazavi, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Steve Oetting and Heather B. Arambarri, Deputy Attorneys General, for
Plaintiff and Respondent.
Minor Terrell was convicted of two aggravated assault charges arising
from the same act: assault with a deadly weapon (Pen. Code,1 § 245, subd.
(a)(1), count 1) and assault likely to produce great bodily injury, sometimes
referred to as “force-likely” assault (§ 245, subd. (a)(4), count 2). The jury
also found that Terrell personally used a deadly and dangerous weapon
(a cane sword) within the meaning of section 1192.7, subdivision (c)(23).
Without having the benefit of People v. Aguayo (2022) 13 Cal.5th 974(Aguayo), the trial court stayed the sentence on count 2, imposed two years
of formal probation, and as a condition of probation ordered Terrell to
participate in any anger management treatment programs chosen by the
probation officer.
On appeal, Terrell contends, the Attorney General concedes, and we
agree that under Aguayo, he cannot be convicted of both assault counts.
The parties disagree, however, about the appropriate remedy. The Attorney
General contends the two counts should be consolidated into a single
conviction, whereas Terrell maintains his conviction on count 2 (force-likely
assault) should be reversed. We hold that the counts should be consolidated.
Terrell also contends that the probation condition requiring him to
participate in any anger management treatment program is an overbroad
delegation of judicial power. The claim is forfeited because defense counsel
did not object in the trial court. In any event, reasonably construed as being
limited to nonresidential treatment programs, the condition is a valid
delegation of authority.
1 Undesignated statutory references are to the Penal Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
In September 2020, Terrell (a 65-year-old African American) was a
passenger on public transit when two other riders were making loud
statements in support of former President Trump. One of the men had a
“White Pride” tattoo on his neck.
After the three men exited the trolley, one of the Trump supporters
offered Terrell a blunt as a “peace offering.” Terrell used his cane to push the
man away, pulled a five-inch knife hidden inside it, and stabbed the man in
the neck. The jury viewed a surveillance video of the incident.
At trial, Terrell claimed he acted in self-defense. The jury disagreed,
convicting him on both counts. On count 1 (assault with a deadly weapon),
the jury also found that he personally used a dangerous and deadly weapon
(a cane sword), within the meaning of section 1192.7, subdivision (c)(23).
DISCUSSION
A. The Convictions Should Be Consolidated
Section 954 provides that an accusatory pleading may charge “different
statements of the same offense . . . under separate counts.” However, the
statute “ ‘ “does not permit multiple convictions for a different statement of
the same offense when it is based on the same act or course of conduct.” ’ ”
(Aguayo, supra, 13 Cal.5th at p. 982.)
In Aguayo, the Supreme Court held that when enacting section 245, the
Legislature “intended assault with a deadly weapon and force likely assault
to constitute ‘different statements of the same offense’ for purposes of section
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954.” (Aguayo, supra, 13 Cal.5th at p. 988.) Where, as here, both counts are
based on the same conduct,2 multiple convictions are prohibited.
Aguayo left open the question of remedy, expressing no opinion on
whether one of the convictions should be stricken or instead whether the two
convictions should be consolidated. (Aguayo, supra, 13 Cal.5th at p. 995.)
The parties have different views on the issue.
Terrell asserts that we should reverse count 2 because that would
comply with section 954 and in the future, courts would know that he was
convicted of a charge that qualified as a strike under the Three Strikes law.
(§§ 1192.7, subdivision (c)(23), 667, subds. (b)–(i).)
In contrast, citing People v. Craig (1941) 17 Cal.2d 453, 4593 (Craig),
the Attorney General contends consolidation is more appropriate. In that
case, based on one act of intercourse, the defendant was convicted of one
count of rape by force and violence, and a separate count of rape of a person
under the age of consent. (Id. at pp. 454–455.) After determining that only
one offense had occurred, the court consolidated the two convictions into a
single judgment that stated the defendant was found guilty of rape, identified
the two statutory subdivisions he violated, and stated the two counts were
separate statements of the same offense. (Id. at pp. 458–459.)
We conclude that consolidation is the better remedy because it is
consistent with that aspect of Craig as well as the rationale articulated in
Aguayo. Before 2011, these two forms of aggravated assault were not
2 In closing argument, the prosecutor stated, “[c]ount 2 is pretty similar
to count 1” and was also based on the stabbing. At sentencing the judge
similarly remarked, “The two counts basically are the same . . . .”
3 People v. White (2017) 2 Cal.5th 349, 359 overruled Craig on different
grounds, holding that a defendant is properly convicted for both rape of an
intoxicated person and of an unconscious person.
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separate offenses, but instead described alternative ways to violate former
section 245, subdivision (a)(1). (See Aguayo, supra, 13 Cal.5th at p. 986.)
The Legislature separated them in 2011 because assault with a deadly
weapon is a “serious felony” with potential consequences under the Three
Strikes law, but assault with force likely to cause great bodily injury is not.
(Aguayo, at pp. 986–987.) “Having a judgment showing the ‘true nature’ of
a former section [245, subdivision] (a)(1) conviction—by indicating whether it
was pursuant to subparagraph (a)(1) or (a)(4)—would allow a prosecutor to
settle appropriate cases . . . .” (Aguayo, at p. 987.)
Here, the “ ‘true nature’ ” of Terrell’s convictions is that he used a large
knife to stab the victim in the neck. Consolidating the two forms of
aggravated assault into a single conviction (of assault with a deadly weapon
and by means of force likely to produce great bodily injury) preserves these
findings. In contrast, striking count 2, as Terrell urges, would
inappropriately minimize the actual force that he utilized.
B. The Challenged Condition of Probation is Not Unconstitutional
To “deal with some of the anger issues [Terrell] seem to display,” the
court imposed as a condition of probation that he “comply with any
assessment programs” as directed by his probation officer and “participate in
any type of treatment, including cognitive, behavioral therapy, group, [and]
individual.” Defense counsel did not object. In response to the judge’s
questions, Terrell stated that he understood the terms of his probation and
was willing to follow them.
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For the first time on appeal, Terrell contends that giving the probation
officer the authority to compel him to comply with “any assessment program”
places him “at the mercy of the probation department” and is an “improper
delegation of judicial power to the probation officer.” He “requests” that the
“treatment plan probation term” be modified to read: “You are ordered to
cooperate with your probation officer in any outpatient counseling plan for
anger management.”
Terrell has forfeited this issue. Challenges to conditions of probation
ordinarily must be raised at sentencing, and if they are not, appellate review
of those conditions is forfeited. (See People v. Welch (1993) 5 Cal.4th 228,
235.) This rule “helps discourage the imposition of invalid probation
conditions and reduce the number of costly appeals brought on that basis.”
(Ibid.) By accepting this term without objection, Terrell prevented the trial
court from being able to clarify or narrow its scope had that been appropriate.
The purpose of the forfeiture rule is to avoid this situation—where an
objection would have permitted the trial court to address the concern and/or
make a better record to support the court’s decision.
Putting forfeiture aside, the claim fails because it is based on a
misunderstanding of the challenged probation condition. When construing
probation conditions, we consider their context, use common sense, and may
look to oral comments the trial judge made when imposing the term. (People
v. Rhinehart (2018) 20 Cal.App.5th 1123, 1129; see In re Sheena K. (2007)
40 Cal.4th 875, 891.)
In this case, although the court ordered Terrell to comply with “any
assessment programs” as directed by his probation officer, the judge’s
contemporaneous oral comments limit that authority to anger management
issues:
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“[T]he court is going to order that if your probation officer
wants you to comply with any assessment programs . . . ,
participate in any types of treatment, including[,] cognitive,
behavioral therapy, group, [and] individual. I’d like to see
you deal with some of the anger issues you seem to
display . . . .” (Italics added.)
Construed in this context, as it must be, this is a reasonable and
appropriate delegation of authority for nonresidential treatment for anger
issues. By rejecting Terrell’s claim of self-defense, the jury credited the
victim’s testimony (supported also by the surveillance video) that Terrell was
the aggressor. Under these circumstances, anger management
assessment/treatment is an eminently reasonable condition of probation.
Delegating the details to the probation officer is a pragmatic necessity
because a trial court “is poorly equipped to micromanage selection of a
[treatment or counselling] program.” (People v. Penoli (1996) 46 Cal.App.4th
298, 308.)
This grant of discretionary authority includes an implicit requirement
that the discretion be exercised reasonably. (See People v. Stapleton (2017)
9 Cal.App.5th 989, 996.) In the future, if Terrell is directed by a probation
officer to comply with this condition in a manner that is not related to
nonresidential assessment and/or treatment for anger management, he may
challenge the manner in which the condition has been implemented. (See
People v. Keele (1986) 178 Cal.App.3d 701, 708 [trial court retains jurisdiction
to review probation officer’s actions].)
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DISPOSITION
The judgment is modified to consolidate the separate convictions of
assault with a deadly weapon (count 1) and assault with force likely to cause
great bodily injury (count 2) into a single violation of subdivisions (a)(1) and
(a)(4) of section 245, being separate statements of the same offense, with a
true finding that in committing the assault, Terrell personally used a deadly
and dangerous weapon (a cane sword) within the meaning of section 1192.7,
subdivision (c)(23). In all other respects, the judgment is affirmed.
DATO, J.
WE CONCUR:
O’ROURKE, Acting P. J.
IRION, J.
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