Opinion
C083163
09-23-2019
THE PEOPLE, Plaintiff and Respondent, v. DEAN MICHAEL KNIGHT, Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT] THE COURT:
It is ordered that the opinion filed herein on September 23, 2019, be modified as follows:
On page 36, in the Disposition, the second sentence beginning with the words "We modify the judgment . . . " is deleted. The new sentence should be added in its place as follows:
We modify the judgment (§ 1260 [appellate court may modify judgment]) to add a five-year prior-conviction enhancement (§ 667, subd. (a)) to the indeterminate sentence.
There is no change in the judgment.
Appellant's petition for rehearing is denied. BY THE COURT: /s/_________
HULL, Acting P. J. /s/_________
HOCH, J. /s/_________
RENNER, J. NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MCYKCRBF20134062)
After the jury in a first trial was unable to reach a verdict, the jury in a second trial found defendant Dean Michael Knight guilty of torture, two counts of assault with a deadly weapon, criminal threats, and false imprisonment by violence, with enhancements for personal use of a deadly and dangerous weapon and personal infliction of great bodily injury. (Pen. Code, §§ 206, 245, subd. (a)(1), 422, subd. (a), 236, 12022, subd. (b)(1), 12022.7, subd. (a); unless otherwise stated, statutory section references that follow are to the Penal Code.) Defendant on appeal claims evidentiary error, instructional error, and prosecutorial misconduct. The Attorney General in the respondent's brief argues the trial court erred by failing to impose enhancements on both the indeterminate and determinate sentences. We will modify the judgment to add a five-year prior-conviction enhancement (§ 667, subd. (a)) to the indeterminate sentence, and we direct the trial court to prepare an amended abstract of judgment (1) to reflect the five-year enhancement for the indeterminate sentence, and (2) to reflect stayed enhancements for great bodily injury (§ 12022.7, subd. (a)) on the two assault counts. We otherwise affirm the judgment.
FACTS AND PROCEEDINGS
On Friday, March 22, 2013, victim Patricia W. was helping a friend Roni A. move into a house in Yreka. When they arrived, the victim learned that defendant was also living there, with his girlfriend Hayley M. The victim had met defendant about a year earlier when he was living in Montague with a different girlfriend, Amanda W. The victim disapproved of the way defendant treated Amanda and tried to get her to leave defendant. Defendant found out, got angry, and told Amanda he wanted to "teach [the victim] a lesson" not to butt into other people's business. He remained angry with the victim when he and Amanda ended their relationship in early 2013. Amanda did not testify at the first trial, despite being subpoenaed, because she did not want to get involved, feared defendant, loved him, and wanted to protect him. Amanda was also concerned about getting into trouble because she used to engage in sex-trafficking young women and underage girls but has since reformed. For this second trial, the prosecutor gave her use immunity barring the use of this trial testimony in any prosecution of her.
After helping Roni move into defendant's home, the victim spent the weekend there.
On Monday, March 25, 2013, defendant was annoyed with the victim. He felt she was checking up on him or thought she had said something negative about him to Hayley. He also thought she took his cell phone, but she got her phone as collateral from someone (James C.) who owed her money.
That evening, the victim was alone sitting on a futon in Roni's "bedroom," which was a den with no door and just a sheet hung for privacy. Defendant and Hayley came in. Defendant accused the victim of taking his cell phone. She denied it. Defendant gave Hayley a piece of firewood about a foot and a half long and six to eight inches in diameter and told Hayley to "Get her." Hayley lifted the wood as if to strike, but the victim could tell Hayley did not want to do it. Defendant took the piece of wood and gestured as if to hit Hayley. Hayley swung her fist at the victim but did not really hit her. Defendant hit the victim with the piece of wood. The victim tried to run out a door that led outside, but the door would not open. Defendant and/or Hayley grabbed the victim and put her back on the futon. Defendant continued to beat the victim hundreds of times on the hip, leg, face, and arm in a beating that lasted for hours. He also hit her once with a metal fire poker.
He looked, acted, and sounded like he was "possessed." He threatened to kill her and hurt her son and significant other, and the victim feared he would. She screamed and cried and begged him to stop. She thought she was going to die. When she yelled, "Oh, God," defendant said, "I am God" and "God has nothing to do with it." Defendant pulled out a pocketknife, jabbed it toward the victim and threatened to cut off her toes, but he did not cut her with the knife. He put a large piece of plastic on the floor. She feared he was going to kill her and wrap her in the plastic.
Defendant then dropped to his knees, cried, said she was his friend and he loved her, and he did not want to beat her anymore. He just wanted the truth. She said she was telling the truth and had not taken anything. He continued to hit her. When the victim started to have trouble breathing, defendant sent Hayley to get the victim's inhaler. The victim asked to get something to drink. Defendant allowed it but warned not to "go for the door." The victim got some brandy from the kitchen and returned, thinking that if she gained defendant's trust he might let her leave.
Defendant then became angry about Roni's barking dog. Roni left.
At trial, Roni testified she was in another room during the time of the alleged beating, but she saw nothing, heard nothing, and never observed any bruises or injuries on the victim. Roni testified defendant is like a son to her, and he considers her like a mom.
When Roni left the house, the victim -- at defendant's direction -- went outside with her but then returned and helped defendant and Hayley clean up the house. They fell asleep. In the morning, the victim made breakfast for them.
That afternoon, four law enforcement officers came to the door and asked if they could enter. Defendant said no. The court read a stipulation to the jury that "law enforcement officers were at the defendant's residence on March 26, 2013, from 2:21 p.m. to 2:30 p.m.," and "they were there for a legitimate purpose," and "they were not looking for the defendant or any of the witnesses in this case." Defendant spoke to the officers at the door and asked Hayley, who was in the kitchen with the victim, to bring him some papers. She did and then immediately returned to the kitchen. Defendant stepped outside and walked the officers away from the house. The officers left. For part of the time that the officers were there, Hayley stood in the kitchen between the victim and the back door, holding a knife. The victim did not scream or try to leave because she was afraid.
After the officers left, the victim said she was in pain, and defendant let her call her aunt and uncle, who picked her up and took her to the hospital around 5:00 p.m. She reported she had been hit with a stick and held against her will. The doctor who examined her said she complained of pain and had "pretty extensive" injuries, consistent with being struck with a hard object such as firewood or metal fire poker the previous night. She had a large bruise on the back of her skull, bruises and swelling on her left arm and the left frontal part of her head, a black eye, a swollen right knee, and injuries to her left hip and ribs. She walked with a limp and was short of breath. The doctor ordered tests and prescribed Vicodin for pain and Naproxen for pain and anti-inflammation.
The victim testified she consumed a few shots of brandy and a couple of nonprescribed Vicodin before the beating. She was an opiate addict and a few years before this incident had pleaded guilty to a felony for forging narcotics prescriptions.
A sheriff's detective spoke with the victim at the hospital. She was visibly upset and crying. She was afraid defendant would retaliate if she talked to law enforcement. He took photos of her injuries and left. He returned later and talked with the victim for about 30 minutes. He then turned over the investigation to the Yreka Police Department.
A police officer interviewed the victim at the hospital. She was crying, distraught, and seemed scared. She appeared to be in pain. He testified she did not have any objective signs of drug or alcohol intoxication. He took photographs of her injuries, which were shown to the jury.
The hospital discharged the victim, who accompanied the police officer, showed him the house where this happened, and gave a statement at the police station generally consistent with what she said at the hospital. From a photo lineup, the victim identified defendant as her assailant. The officer could not complete the interview because the pain medication given at the hospital took effect.
The next day, police arrested defendant and executed a search warrant at his home. They found a folding knife on him, plastic sheeting in the dining room closet, fireplace pokers, and (in Roni's room) the victim's credit card. The door leading outside was nailed shut.
Hayley testified at the second trial under a grant of use immunity. Defendant was mad at the victim because he thought she had stolen his cell phone, but he was wrong. He told Hayley to hit the victim with a piece of firewood. Hayley wanted to please defendant because he was her boyfriend, but she could not bring herself to do it. Hayley instead made a "failed attempt" to punch the victim. Defendant took the piece of wood and, in a rage, hit the victim repeatedly as she cried and screamed and begged for her life. The whole thing lasted a few hours. It ended when defendant turned his ire on Roni, suspecting she stole from him, and threatened to kill her dog. Roni got upset and left.
When the police came to the house, Hayley and the victim were in the kitchen. According to Hayley, she did not do anything to make the victim stay in the kitchen, and the victim said she had an outstanding warrant.
The defense called several witnesses. A private investigator hired by the defense spoke with Hayley in defendant's presence, and Hayley said she saw no injuries on the victim. Defendant's aunt, Jenelle P., who had several prior convictions for petty theft, was at the house the day after the beating, and saw black and blue bruises on the victim's face and arms. Jenelle asked what happened. The victim did not tell her but said something about a fight with a girl. Jenelle did not remember very well. After defendant was arrested, Jenelle asked the victim what happened, and the victim said she would not tell the hospital staff who beat her, so the victim's aunt told them it was defendant. Defendant's cousin, Jessee W., whose prior convictions included lying to the police testified Hayley "hint[ed]" she planned to testify against defendant to get herself out of trouble and suggested the cousin do the same to get out of trouble for failing to report to his probation officer. Jessee claimed he had the same conversation with defendant's ex-girlfriend Amanda. Jessee also claimed the victim is a liar and admitted she falsely accused defendant because "he's a piece of shit . . . ." Defendant's sister Ashly M. testified that, when Hayley phoned in a panic that defendant was being arrested for holding a woman hostage and beating her up, Ashly asked if that had happened, to which Hayley responded it was she, not defendant, who beat up the victim, assertedly for stealing a camera.
The defense argued to the jury that the prosecution failed to prove its case beyond a reasonable doubt; the prosecution witnesses were unreliable drug addicts whose stories were riddled with inconsistencies about details; and someone smaller than defendant -- possibly Hayley -- must have beaten the victim because her injuries would have been worse had defendant beaten her.
The jury returned verdicts finding defendant (1) guilty of torture (§ 206), with personal use of a deadly weapon (§ 12022, subd. (b)(1)); (2) guilty of assault with a deadly weapon, firewood (§ 245, subd. (a)(1)), with personal infliction of great bodily injury (§ 12022.7, subd. (a)); (3) guilty of assault with a deadly weapon, metal fire poker (§ 245, subd. (a)(1)), with personal infliction of great bodily injury (§ 12022.7, subd. (a)); (4) guilty of criminal threats (§ 422), with personal use of a dangerous weapon (§ 12022, subd. (b)(1)); and (5) guilty of false imprisonment by violence (§ 237, subd. (a)), with personal use of a deadly weapon (§ 12022, subd. (b)(1)).
At a bifurcated proceeding, defendant admitted prior-conviction and prior-prison-term allegations.
As we discuss post, the trial court sentenced defendant to an indeterminate of 14 years to life for torture, and a determinate sentence of 15 years and eight months on the other counts.
DISCUSSION
I
Evidence That Defendant Invoked Fourth Amendment Rights
Defendant argues the trial court erred in admitting evidence that he said no when police asked to enter the house during a visit for a reason unrelated to this case. Defendant argues the evidence violated his privilege to be free from comment about his assertion of his constitutional Fourth Amendment rights. Insofar as defendant's failure to object on this ground in the trial court forfeited the matter (Evid. Code, § 353; People v. Partida (2005) 37 Cal.4th 428, 434), his backup argument is ineffective assistance of counsel. We see no basis for reversal.
A. Background
During motions in limine, the parties advised the court the police went to conduct a parole search of defendant's home to investigate a report involving a juvenile, but they left when defendant showed them proof he had been discharged from parole. The defense wanted to use the visit because the victim did not cry out for help while the officers were there. The parties agreed to a stipulation that would tell the jurors the officers were not there looking for defendant or the victim.
On cross-examination, the victim testified the officers did not enter the house and she did not recall how long they were at the door talking with defendant. The court allowed jurors to submit questions during trial, and one question was whether the police asked to enter the house. In chambers, the prosecutor said she wanted to ask the victim on re-direct if she heard the police ask to come in, and a detective would testify they did ask to search the house and defendant said no, which was his right. Defense counsel objected the jury might draw an inference that defendant refused entry because of a consciousness of guilt. The trial court overruled the objection but ruled there could be no mention of parole and suggested they put the juror's question to a different witness.
The court read a stipulation to the jury that "law enforcement officers were at the defendant's residence on March 26, 2013, from 2:21 p.m. to 2:30 p.m.," and "they were there for a legitimate purpose," and "they were not looking for the defendant or any of the witnesses in this case." One of those deputies then testified that he asked if he could enter the house, and defendant declined, and he "had every right to do that."
In closing arguments to the jury, the prosecutor did not comment on defendant declining entry. Defense counsel argued to the jury that defendant walked the officers away from the house "because it's a flophouse and there are potentially drugs in the house and there's a bunch of people in there doing drugs," and the officers would not be drawn away from the house if they did not want to be drawn away.
B. Analysis
A verdict shall not be set aside, nor a judgment reversed, by reason of the erroneous admission of evidence unless an objection was timely made in the trial court and so stated as to make clear the specific ground of the objection. (Evid. Code, § 353; People v. Partida, supra, 37 Cal.4th at p. 434.) In the trial court, defendant did not object on the ground that it was improper for the jury to know he invoked his right to be free of warrantless search under the Fourth Amendment. He has therefore forfeited the appellate challenge. (Partida, at p. 434.)
As to defendant's backup claim for ineffective assistance of counsel, he must show both (1) deficient performance by trial counsel that fell below an objective standard of reasonableness under prevailing professional norms, and (2) a reasonable probability that he would have obtained a more favorable result but for counsel's alleged deficiencies. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) If the defendant fails to show prejudice, the reviewing court may reject the claim without addressing the first factor. (Id. at p. 697.)
Defendant fails to show any possible prejudice from evidence that he declined to let the police enter the house. The point was insignificant, was mentioned only briefly, and the jury was told the visit had nothing to do with this case. The police visit itself was helpful to defendant's case, because he used it to argue that the victim's silence during the police visit indicated she was not being held against her will. It was a juror who asked if the police sought entry, making the brief evidence appropriate so as not to distract jurors with an unanswered question.
There was no instruction that defendant's refusal to allow entry showed a consciousness of guilt. The prosecutor in closing arguments did not urge the jury to consider defendant's refusal to allow entry as consciousness of guilt; the prosecutor did not mention this evidence at all.
On appeal, defendant argues that error in allowing the evidence forced defense counsel to make the "rather damning admission" that there were drugs in the house. Not so. No connection was drawn between the two, nor were drugs an issue in this prosecution. Rather, it was clearly defense counsel's strategy to challenge the prosecution's evidence by portraying everyone in the house as drug addicts whose testimony was unreliable and by suggesting that the perpetrator(s) of the victim's injuries may have been one or more of these other drug-addled people, rather than defendant. In closing argument to the jury, defense counsel said, "I think everybody here will agree that this was a flophouse and everybody there was an active drug user. So you have to put aside what you saw in court -- everybody is cleaned up in court -- and focus on what was happening at the time. And these were all active drug users that were at a flophouse." Counsel also said the victim was an active opiod user, and because of her injuries got "exactly what she wanted, which was drugs" for pain. "[T]hese are all people that are in this drug culture at the flophouse. I mean and that's the problem with this case is we have these people, really probably none of them are telling truth." Counsel repeatedly reminded the jury that the burden of proof was on the prosecution.
Defendant fails to show grounds for reversal in the evidence that he declined entry to police.
II
Police Opinion of Victim's Veracity
Defendant complains an investigating police officer was allowed at trial to offer an improper opinion that the victim's statements to police were true. Defendant presents this as prosecutorial misconduct rather than evidentiary error. Again, we see no basis for reversal.
A. Background
On cross-examination of the victim, defense counsel exploited inconsistencies between the victim's trial testimony and between her two statements to police and tried to portray the inconsistencies as lies based on her testimony in the first trial that she could have told the officer both "true" and "untrue" things. The victim explained at this trial that she did not lie on purpose but may have misspoken or not explained herself correctly and that her memory was "splotchy in some spots." She did not remember much of the second interview with the officer at the police station.
The officer testified he spoke with the victim at the hospital and again at the police station after the hospital discharged her. At the police station, she showed signs that the pain medication given at the hospital was taking effect. He continued the interview and showed her a photo lineup. The prosecutor asked if the officer was concerned that her answers would be compromised because of her impaired state. He said, "It's something you think about. That's why you have to ask so many questions to see if there's consistencies between the two. And I was hoping that's what we would achieve."
When the prosecutor asked why the officer was looking for consistencies, the defense objected it was irrelevant. The trial court overruled the objection. The officer said the second interview at the police station was a second chance in a more controlled environment. The prosecutor again asked why the officer looked for consistency, and the court again overruled the defense objection that it was irrelevant. The officer replied: "To make sure her statement was correct." The prosecutor asked, "As an investigator is that something that you look for in terms of assessing whether or not the information you're given is credible or truthful?" The officer said yes. The prosecutor asked, "And in this particular case, despite the fact that she was under the influence of pain medications, did she give you consistent statements with her first statement to you at the emergency room?" The defense objected this called for improper opinion of a matter that was for the jury to decide. The court sustained the objection on the ground the question "may be a little vague."
The prosecutor asked if the officer found some consistencies during the second interview. The court sustained the defense objection to improper opinion. The prosecutor asked whether the victim made certain statements in the second interview. The court overruled defendant's hearsay objection but then interrupted the prosecution's continued questioning and said "It is hearsay. It's just coming in for this witness's opinion in assessing the whole situation." The court then said, "You've heard testimony in court by the witnesses, that's your evidence. And any other thing that comes in for which we may have some, okay. But at this point it's just for this witness's -- what this witness is doing."
The prosecutor asked the officer if the victim told him in the second interview that defendant had a knife. The court sustained defendant's objection.
The prosecutor later tried again, asking "Were there consistencies between the first and second interview?" The defense again objected, but the trial court allowed the officer to answer, and he said, "Yes." A little later, the prosecutor asked "did [the victim] provide you consistent statements about what happened to her by the defendant?" The trial court overruled the defense objection to improper opinion, and the officer said, "In generality [sic], yes."
B. Analysis
Defendant argues the prosecutor, by questioning the officer about "consistency," elicited an improper opinion that the victim was credible. Defendant presents this as a claim of prosecutorial misconduct rather than evidentiary error. He cites authority that credibility of witnesses is for the jury to decide, and it is improper for a witness -- particularly a police officer whose training may generate reliance by jurors -- to give an opinion as to whether another witness is truthful (other than general reputation for honesty, which is not at issue here). (E.g., People v. Sergill (1982) 138 Cal.App.3d 34, 38-40; People v. Hudson (1981) 126 Cal.App.3d 733, 741.)
Defendant's claim of prosecutorial misconduct is forfeited for failing to raise it in the trial court. (People v. Ayala (2000) 23 Cal.4th 225, 284.)
Even assuming for the sake of argument that the point is not forfeited, it still fails.
Defendant acknowledges the prosecutor asked the officer, and the officer answered, about consistencies, not about credibility. The closest he came was to say that he questioned her a second time "[t]o make sure that her statement was correct." The prosecutor asked, "As an investigator is that something that you look for in terms of assessing whether or not the information you're given is credible or truthful?" The officer said yes. This was stated as a general proposition of investigative technique, not an opinion on veracity of this victim.
Defendant nevertheless argues: "But the gist of the question was the same: was [the victim] being truthful? It was obvious that the prosecutor asked [the officer] about 'consistencies' between the two statements to make it appear as though [the officer] believed that [the victim] was telling the truth. Why else would the presence of 'consistencies' be relevant?"
The answer to "why else" is obvious. In normal usage, "consistent" means "marked by harmony, regularity, or steady continuity: free from variation or contradiction." (Merriam Webster's Collegiate Dictionary (11th ed. 2006) p. 266.) Consistencies were relevant because defense counsel made inconsistencies relevant in cross-examining the victim, as we have just noted, and as defendant admits on appeal. Defense counsel sought to use the inconsistencies to undermine the victim's story. The prosecutor was well within bounds to try to use the consistencies to rehabilitate the victim's story. Additionally, consistency of statements also justified further investigation by the police. And "consistent" statements may not necessarily be true statements. People are easily capable of telling consistent lies.
Defendant does not contend or show that the prosecutor argued to the jury that the officer believed the victim's account was true. He merely claims "improper insinuation" from the questioning of the officer, which is not borne out by the record. The defense argued to the jury that the officer did not believe the victim's account, because his reports lacked detail and he did not arrest defendant or execute a search warrant until the next day, despite the victim assertedly expressing concern that defendant would hurt Hayley who was still in the house. However, the defense also argued it was Hayley, not defendant, who perpetrated the attack. In any event, the victim's physical injuries alone demanded further investigation by the police.
We conclude defendant fails to show grounds for reversal based on improper opinion, either as an evidentiary matter or as prosecutorial misconduct.
III
Failure to Instruct that Hayley was an Accomplice
Defendant argues the trial court erred in failing to instruct the jury pursuant to CALCRIM No. 335, that Hayley was an accomplice as a matter of law such that her testimony "should be viewed with caution" to the extent it tended to incriminate defendant, and that he could not be convicted on her testimony alone. Because the court and counsel discussed jury instructions off the record, it is not clear why the court did not give this instruction or CALCRIM No. 334 for the jury to determine whether or not Hayley was an accomplice. Error is apparent, but we agree with the People that the error was harmless.
Section 1111 provides: "A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. [¶] An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given."
The trial court has a duty sua sponte to give an accomplice instruction if there is sufficient evidence that a witness is an accomplice. (People v. Tobias (2001) 25 Cal.4th 327, 331.) In determining the need for the accomplice instruction, it does not matter which side called the witness. (People v. Guiuan (1998) 18 Cal.4th 558, 569.) Whether a person is an accomplice presents a factual question for the jury unless the evidence permits only a single inference. (People v. Riggs (2008) 44 Cal.4th 248, 312.)
Here, the victim testified Hayley swung once with her hand or fist but did not really make contact with the victim, and Hayley helped defendant prevent the victim from escaping during the attack. Hayley herself testified that, when defendant told her to hit the victim with the firewood, "I wanted to because he was my boyfriend but I couldn't do it. I couldn't bring myself to do it because that's not who I am." Hayley could tell the victim was scared by the look on her face. Hayley hit the victim by making a "really weak -- a failed attempt at punching her." Hayley also testified, "I willingly participated" in the attack "[b]ecause I thought I loved him [defendant]. And I was doing whatever. I was doing what I thought I needed to do. You have my back, I have yours."
It appears clear the trial court should have given an accomplice instruction sua sponte.
Nevertheless, the failure to instruct on accomplice testimony is harmless where there is sufficient corroborating evidence in the record. (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 303-304, citing People v. Lewis (2001) 26 Cal.4th 334, 370.) Under this standard, corroborating evidence may be slight and may be entirely circumstantial; although that evidence must implicate the defendant in the crime and relate to proof of an element of the crime, it need not be sufficient to establish all elements of the crime. (Gonzales and Soliz, supra, 52 Cal.4th at pp. 303-304.) The law requires only that the evidence tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth. (Ibid.) This corroboration standard is less stringent than harmless error analysis under People v. Watson (1956) 46 Cal.2d 818 of reasonable probability that the defendant would have obtained a more favorable result. (Gonzales and Soliz, supra, 52 Cal.4th at pp. 303-304.) The Watson standard applies as an alternative harmless error analysis if there is a question about sufficiency of corroboration. (Gonzales and Soliz, supra, 52 Cal.4th at p. 304.) The Supreme Court conducted such an analysis in Lewis, supra, 26 Cal.4th at page 371, and concluded that the general witness credibility instructions sufficed to instruct the jury to view the accomplice's testimony with care and caution, and no reasonable probability existed that the defendant would have received a more favorable result had the trial court instructed with the accomplice instruction. The Supreme Court drew the same conclusion in Gonzales and Soliz, supra, 52 Cal.4th at page 304, where the witness's trial testimony conflicted with statements he made to a homicide investigator. "The jury therefore would have used the witness credibility instructions it was given in evaluating the truth of his testimony. This provides an additional and alternative basis for our conclusion that any error in the trial court's failure to give the accomplice instructions was harmless." (Ibid.)
Here, there was more than ample corroboration in the victim's testimony that defendant beat her and kept her from leaving the room, which connected defendant to the crimes and corroborated Hayley's testimony. (People v. Espinoza (1979) 99 Cal.App.3d 44, 49 [victim's testimony that defendant used firearm amply corroborated accomplice's testimony that defendant used firearm].)
Certainly, a person who sustains physical injuries has a personal interest in correctly identifying the perpetrator. And we have more than the victim's testimony. We have the medical evidence showing serious physical injuries consistent with her story. Defendant's boast that he could have caused more severe injuries does not tend to undermine the victim's testimony that defendant beat her. Also, there was evidence of motive in that defendant was angry with the victim, not only about a cell phone, but for interfering in his relationship with his prior girlfriend.
Additionally, the court instructed on witness credibility that factors for the jurors to consider in evaluating witness testimony that would apply to Hayley, including whether the witness's testimony was "influenced by . . . a personal interest in how the case is decided," whether the witness was "promised immunity or leniency in exchange for his or her testimony," whether the evidence was reasonable in light of all other evidence, and whether other evidence proved or disproved any fact about which the witness testified. Although the court instructed with CALCRIM No. 301 that the "testimony of only one witness can prove any fact," the same instruction added that the jurors should "carefully review all the evidence" before concluding one witness's testimony proved a fact. The jury, which knew Hayley had been given use immunity that did not preclude a future prosecution against her, would have used these instructions in evaluating Hayley's credibility.
Defendant argues prejudice is shown by the fact that the first trial, in which neither Hayley nor Amanda testified, resulted in a hung jury. Defendant claims the jury was hung seven to five, but the cited document in which the jury reported the impasse stated that the split was seven guilty, five not guilty, for false imprisonment. Eight jurors voted guilty on torture and assault with firewood; three voted guilty on assault with fire poker, and six voted guilty on criminal threats. A jury's inability to reach a verdict in a prior trial may indicate weakness in a prosecutor's case and be probative of an error's prejudicial effect. (E.g., People v. Taylor (1986) 180 Cal.App.3d 622, 634.) However, the errors in the cases cited by defendant were the erroneous admission, exclusion, or concealment of evidence in the second trial. (E.g., Kyles v. Whitley (1995) 514 U.S. 419, 454.) Here, there was no evidentiary error, and the hung jury in the prior trial does not indicate a weak prosecution case in the second trial, because Hayley and Amanda both successfully avoided testifying at the first trial.
Hayley testified she did not come forward for the first trial because she thought the whole problem would go away. For the second trial, Hayley, who worked at a retail store, approached the prosecutor as she shopped there. Hayley said she wanted to talk because this had been "bugging" her for a long time. They set up a meeting at the courthouse, where Hayley was not promised immunity from future prosecution but was promised that, if she was subsequently prosecuted, her statement to the prosecutor and testimony in defendant's trial would not be used against her. The defense argued to the jurors that they should disbelieve Hayley's testimony because of this grant of use immunity.
We conclude defendant was not prejudiced by omission of accomplice instructions.
IV
CALCRIM No. 373
Defendant argues that, because Hayley testified as a witness and was an unjoined accomplice, the trial court prejudicially erred by instructing the jury not to speculate why an apparent accomplice was not a codefendant. We disagree.
The court instructed the jury with CALCRIM No. 373: "The evidence shows that another person may have been involved in the commission of the crimes charged against the defendant. There may be many reasons why someone who appears to have been involved might not be a codefendant in this particular trial. [¶] You must not speculate about whether that other person has or will be prosecuted. Your duty is to decide whether the defendant on trial has committed the crimes charged."
Defendant forfeits this claim on appeal by failing to show that he objected to the instruction in the trial court. (People v. Catlin (2001) 26 Cal.4th 81, 149.)
Assuming it is not forfeited, the contention fails. Defendant cites authority that the instruction should not be given when a nonprosecuted participant testifies, because the jury is entitled to consider the lack of prosecution in assessing the witness's credibilitiy. (People v. Williams (1997) 16 Cal.4th 153, 226.)
However, giving such an instruction is not error when it is given together with other instructions that assist the jury in assessing the credibility of witnesses, including instructing the jury it could consider any evidence of witness credibility such as the existence or nonexistence of bias, interest, or other motive, and to consider the instructions as a whole. (People v. Moore (2011) 51 Cal.4th 1104, 1134; People v. Williams (2010) 49 Cal.4th 405, 457-458.) As indicated, ante, the jury was so instructed. And the court instructed the jury that they could consider that a witness had been promised immunity in evaluating credibility of that witness. The jury knew Hayley had been granted use immunity. And the defense argued to the jury that the immunity undermined her credibility.
On appeal, defendant argues the jurors must have been confused by the two instructions: One told them not to consider why Hayley was not being prosecuted; and the other told them they could consider the fact that she was given immunity. Defendant considers it highly likely that at least one juror, faced with such a conflict, may have decided not to consider the fact that Hayley was given immunity, and thus may have found her testimony credible. However, the first instruction did not tell the jurors not to "consider" whether Hayley had been or would be prosecuted; it merely told them not to "speculate." Here, they did not have to speculate. They knew Hayley had been granted use immunity but had not been granted immunity from prosecution. That Hayley thought the statute of limitations had run such that she would not be prosecuted is without consequence.
The trial court did not err in giving CALCRIM No. 373.
V
Failure to Instruct on Unanimity
Defendant argues that, although the trial court gave a unanimity instruction (CALCRIM No. 3301), the court explicitly limited it to Counts 4 and 5 (criminal threats and false imprisonment), and thereby erred in failing to instruct the jurors sua sponte on the need for unanimity as to the acts committed for the two counts of assault with deadly weapon (Counts 2 and 3). Defendant claims jurors might have premised liability in one assault count either on defendant "menacing" the victim with a small knife he did not use or hitting her with a fireplace poker. And defendant thinks jurors might have premised liability in the other assault count either on defendant hitting the victim with a piece of firewood, which occurred repeatedly over several hours, or as an aider and abettor of Hayley's action in hitting the victim.
However, defendant ignores the record. At the beginning of trial, the judge read to the jurors the second amended information, which alleged defendant committed the Count 2 assault using a "piece of firewood" and the Count 3 assault using "a metal fire poker." In closing argument, the prosecutor told the jurors that "Counts II and III are exactly the same charge but a different weapon. Count II is with the piece of firewood. Count III is with the metal fire poker." The jury returned verdict forms finding defendant guilty of assault with a deadly weapon "to wit: a piece of firewood" in Count 2, and guilty of assault with a deadly weapon "to wit, a metal fire poker" in Count 3.
As a general rule, when there is evidence of several acts, any one of which could constitute the crime charged, either the prosecution must select the particular act upon which it relied for the allegation of the information, or the jury must be instructed that it must agree unanimously upon which to base a guilty verdict. (People v. Jennings (2010) 50 Cal.4th 616, 679.) However, no unanimity instruction is required if the case falls within the continuous-course-of-conduct exception, which arises when the acts are so closely connected in time as to form part of one transaction, or if the defendant offers the same defenses to the various acts constituting the charged crime. (Ibid.) The omission of a unanimity instruction is reversible error if, without it, some jurors may have believed the defendant guilty based on one act, while others may have believed him guilty based on another. (People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1589.)
Here, the prosecution selected the fire poker rather than the pocket knife, and therefore no unanimity instruction was required. Also, no unanimity instruction was required as to the firewood, because defendant's repeated assault on the victim with the piece of firewood formed a continuous course of conduct, and defendant did not offer different defenses to different acts with the firewood. His position was that he did not do any of it. There was no danger that some jurors would find defendant struck the victim with the firewood at one point during the attack but not at another point during the attack. This is a case where the jury's verdict implies it did not believe the only defense offered. (People v. Riel (2000) 22 Cal.4th 1153, 1200.)
Defendant claims Richardson v. United States (1999) 526 U.S. 813, calls into question the validity of the continuous course of conduct exception. We disagree. Richardson interpreted a federal statute to require unanimity on certain crimes (violations of drug statutes) that were elements of a larger crime (engaging in a continuing criminal enterprise). (Id. at p. 815, cited in People v. Vargas (2001) 91 Cal.App.4th 506, 560.) As noted in Vargas, the Richardson Court held that, because each violation was an element of the larger crime, the jury had to agree unanimously about which specific about which specific violations made up the "continuing series of violations" to find a defendant guilty of engaging in a continuing criminal enterprise. (Vargas, at p. 560, quoting Richardson, at p. 815.)
Richardson has no application here. Each time defendant struck the victim with the piece of firewood, he was not committing an act that formed an element of some larger crime.
We do not and need not rely on the Attorney General's position that, despite the instruction on unanimity only for criminal threats and false imprisonment, the prosecutor told the jurors the instruction also applied to the other counts. There the prosecutor was arguing the jurors should all agree on defendant's intent in torturing the victim -- revenge, persuasion, and/or sadism.
We conclude the trial court was not required to give a unanimity instruction for the assault counts.
VI
False Imprisonment -- Appreciable Amount of Time
Defendant argues the jury instructions on false imprisonment were defective, because they failed to require that the detention or restraint be for "an appreciable length of time." Defendant claims his failure to object in the trial court did not forfeit the matter, because "appreciable length of time" is an essential element of the offense triggering a sua sponte duty in the trial court. Reversal is not warranted.
Section 236 states: "False imprisonment is the unlawful violation of the personal liberty of another." Section 237, subdivision (a), states in part: "If the false imprisonment be effected by violence, menace, fraud, or deceit, it shall be punishable by imprisonment pursuant to subdivision (h) of Section 1170."
The trial court instructed the jury with CALCRIM No. 1240 (felony false imprisonment) and No. 1242 (misdemeanor false imprisonment) that "defendant is charged in Count V with false imprisonment by violence or menace in violation of Penal Code Section 237(a). To prove that the defendant is guilty of this crime the People must prove that, one, the defendant intentionally and unlawfully restrained or confined or detained someone by violence or menace, and, two, the defendant made the other person stay or go somewhere against the person's will. [¶] Violence means using physical force that is greater than the force necessary to restrain someone. Menace means a verbal or a physical threat of harm including use of a deadly weapon. The threat of harm may be express or implied. [¶] An act is done against a person's will if that person does not consent to the act. In order to consent a person must freely and voluntarily know the nature of the act.
"A lesser included offense to false imprisonment by violence or menace is false imprisonment, a violation of Penal Code section 236. To prove that the defendant is guilty of false imprisonment the People must prove that the defendant intentionally and unlawfully restrained or confined or detained someone and the defendant made the other person stay or go somewhere against the person's will. [¶] An act is done against the person's will if that person does not consent to the act. In order to consent a person must freely and voluntarily know the nature of the act."
Defendant did not object to these instructions or request any further instruction.
We will assume for the sake of argument that defendant's challenge is not forfeited.
Courts have long stated that the definition of false imprisonment is the same, whether the violation of personal liberty is treated as a tort or a crime. (Parrott v. Bank of America (1950) 97 Cal.App.2d 14, 22.) Courts have also said the tort of false imprisonment is "the nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time, however short." (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1123.)
We need not decide whether "appreciable length of time" is an essential element of the crime of false imprisonment because, even if it is, and even if the trial court should have so instructed the jury, we are convinced beyond a reasonable doubt that the failure to so instruct was harmless under the facts of this case. Defendant argues the failure to instruct on an element of a crime should be reversible per se. However, failure to instruct on an element of a crime "may be found harmless [under the federal Constitution] in circumstances . . . [¶] . . . [¶] . . . in which there is no possibility that the error affected the result." (People v. Flood (1998) 18 Cal.4th 470, 491-507.) "[A]n instructional error that . . . omits an element of an offense, . . . generally is not a structural defect in the trial mechanism that defies harmless error review and automatically requires reversal under the federal Constitution." (Id. at pp. 502-503.) Flood applied the standard of Chapman v. California (1967) 386 U.S. 18, inquiring whether error was harmless beyond a reasonable doubt. Although defendant believes Flood is wrong, we are bound by it. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The California cases cited by defendant that predate Flood are therefore not controlling.
Defendant suggests Flood is not good law in light of Arthur Andersen LLP v. United States (2005) 544 U.S. 696 , which reversed a conviction for obstruction of justice in a Securities and Exchange Commission (SEC) proceeding due to the failure to instruct on an essential element of the crime. There, however, the omitted element (knowingly and corruptly persuading another person with intent to cause that person to withhold or alter documents in an official proceeding) was expressly stated in the statute defining the crime. (Id. 544 U.S. at p. 703, citing the statute (18 U.S.C. § 1512(b)(2)) which makes it a crime to "knowingly . . . corruptly persuad[e] another person . . . with intent to . . . cause" that person to withhold or alter documents.
Here, in contrast, the false imprisonment statutes (§§ 236-237) say absolutely nothing about "appreciable length of time" or duration or anything like it.
Moreover, the defendant in Arthur Anderson did object in the district court (id. 544 U.S. at p. 706), unlike defendant in our case. And the federal district court's jury instructions did not merely omit the element but affirmatively misled the jury by failing adequately to convey the intent element of the obstruction of justice statute and diluting the meaning of "corruptly" so that it covered innocent conduct. (Id. at pp. 706-707.) "The outer limits of this element need not be explored here because the jury instructions at issue simply failed to convey the requisite consciousness of wrongdoing. Indeed, it is striking how little culpability the instructions required. For example, the jury was told that, 'even if [petitioner] honestly and sincerely believed that its conduct was lawful, you may find [petitioner] guilty.' The instructions also diluted the meaning of 'corruptly' such that it covered innocent conduct." (Ibid.) Whereas the pattern instruction defining "corruptly" said, " ' "knowingly and dishonestly, with the specific intent to subvert or undermine the integrity" ' " of a proceeding, the district court -- at the request of the Government and over the defendant's objections -- excluded the word "dishonestly" and added the word "impede" to the phrase about subverting or undermining. (Ibid.) The instruction told the jury to convict if it found the defendant intended to subvert, undermine, or impede governmental factfinding by suggesting to its employees that they enforce the document retention policy. (Ibid.)
Accordingly, the Arthur Andersen case has no impact on this appeal, and we apply a harmless error test.
The Attorney General urges application of the standard of People v. Watson, supra, 46 Cal.2d 818 [reasonable probability defendant would have obtained a more favorable result], because what happened here was, at most, a mere failure to give a clarifying instruction. The Attorney General argues the same facts also support affirmance under the standard of Chapman, supra, 386 U.S. 18.
Applying the Chapman standard, we conclude any error in failing to instruct the jury on duration of false imprisonment was harmless beyond a reasonable doubt. Under the victim's version of events, defendant beat her for "hours," during which he physically confined her to the futon. And when she once tried to leave through the door to the outside, he grabbed her and put her back on the futon. He continued beating her after she tried to leave and after he threatened her not to leave when he let her go to the kitchen for a drink. When asked "[h]ow long was [the victim] beaten," Hayley testified "[i]t was a while, a few hours," and "[t]he whole thing went on for a few hours." The defense did not present any theory of restraint for less than an appreciable amount of time. We know from the verdicts that the jury credited the victim's version of events. The only reasonable conclusion the jury could have reached, had it been instructed on the issue, is that defendant detained the victim for an appreciable amount of time. Under these circumstances, there is no possibility that the failure to instruct the jury on duration of false imprisonment affected the result. Any instructional error was harmless beyond a reasonable doubt.
VII
Failure to Instruct on Lesser Included Offenses of Torture
Defendant claims the trial court erred by failing to instruct on battery and battery with serious bodily injury as lesser included offenses of torture. Since he does not show he requested such instructions, his contention supposes the trial court had a duty sua sponte to so instruct. We conclude defendant fails to show grounds for reversal.
Trial courts have a duty sua sponte to instruct on general principles of law applicable to the case, including instructions on lesser included offenses. (People v. Taylor (2010) 48 Cal.4th 574, 623.) But even if a crime is a lesser included offense, a trial court has no duty to so instruct unless there is substantial evidence to support the instruction, i.e., evidence from which a jury of reasonable persons could conclude that the lesser offense, but not the greater, was committed. (People v. Cruz (2008) 44 Cal.4th 636, 664.)
A lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. (People v. Smith (2013) 57 Cal.4th 232, 240.) Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. (People v. Reed (2006) 38 Cal.4th 1224, 1227.) Under the accusatory pleading test, if the facts actually alleged in the pleading include all the elements of the lesser offense, the latter is necessarily included in the former. (Id. at pp. 1227-1228.)
Any error in failing to instruct on a lesser included offense does not warrant reversal unless an examination of the entire cause, including the evidence, discloses that it appears "reasonably probable" the defendant would have achieved a more favorable result had the error not occurred. (People v. Woods (2015) 241 Cal.App.4th 461, 474.)
A. Battery Is Not a Lesser Included Offense Under the Elements Test
Defendant argues battery and battery resulting in serious bodily injury are lesser included offenses of torture, because the infliction of pain required for torture necessarily includes the commission of an act resulting in an unlawful touching of the victim, and torture cannot be committed without also inflicting serious bodily injury.
Section 206 has two elements as follows: "Every person who, [1] with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, [2] inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture. [¶] The crime of torture does not require any proof that the victim suffered pain."
Section 242 defines battery as "any willful and unlawful use of force or violence upon the person of another." An aggravated form of battery occurs when the battery results in serious bodily injury. (§ 243, subd. (d); People v. Lewis (2004) 120 Cal.App.4th 882, 887.) To establish battery with serious bodily injury, the prosecution must prove that (1) a person used physical force or violence against another person; (2) the use of force or violence was willful and unlawful; and (3) the use of force or violence inflicted serious bodily injury on the other person. (Lewis, at p. 887.)
Battery is not a lesser included offense of torture under the elements test because the statutory definition of torture does not require a direct use of touching, physical force, or violence, but instead is satisfied if the defendant, directly or indirectly, inflicts great bodily injury on the victim. An example of indirect injury would be starvation. (People v. Jennings, supra, 50 Cal.4th at p. 684; Lewis, supra, 120 Cal.App.4th at pp. 887-888.)
Defendant challenges the holding in Jennings to preserve the point and ask the Supreme Court to reconsider it.
We conclude the trial court had no duty to instruct on battery as a lesser included offense of torture under the elements test.
B. Accusatory Pleading Test
The second amended information alleged defendant committed the crime of torture in that he "did unlawfully and with the intent to cause cruel and extreme pain and suffering for the purpose of revenge, extortion, persuasion and/or for a sadistic purpose, inflict great bodily injury, as defined in Penal Code section 12022.7, upon [the victim]." But nothing in this allegation said defendant applied physical force, and therefore battery is not a lesser included offense of torture under the accusatory pleading test. (Lewis, supra, 120 Cal.App.4th at p. 888.)
Defendant relies on the enhancement allegation of personal use of a deadly weapon (§ 12022, subd. (b)(1)) that was appended to the torture count. However, enhancements "may not be considered as part of an accusatory pleading for purposes of identifying lesser included offenses." (People v. Woods, supra, 241 Cal.App.4th at p. 473, citing People v. Wolcott (1983) 34 Cal.3d 92, 100-101; accord, People v. Sloan (2007) 42 Cal.4th 110, 114.)
C. Any Error Was Harmless
Even assuming battery and aggravated battery are lesser included offenses of torture, and further assuming sufficient evidence to support such instructions, it is not reasonably probable defendant would have obtained a more favorable outcome had the instructions been given. (People v. Breverman (1998) 19 Cal.4th 142, 176-177 [applying Watson standard].)
Defendant struck the victim with a metal fire poker and repeatedly beat her with a piece of firewood while trying to get her to admit she stole his cell phone. Thus, there was clear evidence that he intended to cause the victim extreme pain and suffering in an attempt to persuade.
There was also evidence that the victim had meddled in his relationship with an ex-girlfriend a couple of years earlier, for which he wanted to trap the victim and "teach her a lesson," and that this desire for revenge persisted up to the date of this attack when he struck her with a fire poker and repeatedly beat her with a piece of firewood. Thus, there was clear evidence that he intended to cause her extreme pain and suffering with a purpose of revenge.
There was also evidence of a sadistic purpose in that he repeatedly beat her for hours, ignoring her screams and watching her futile attempts to avoid the repeated blows as he kept her confined to the futon.
Defendant claims he was prejudiced because there was evidence he acted out of anger, as opposed to revenge or sadism but, because the court presented the jury with an "all or nothing" choice on torture, the jurors may have convicted him of torture because they felt he deserved some punishment. However, the jurors had other choices to punish defendant -- for assault with a deadly weapon, criminal threats, and false imprisonment -and did so by finding him guilty on those counts.
We conclude defendant fails to show grounds for reversal based on the omission of jury instructions on battery or aggravated battery.
VIII
No Cumulative Prejudice
Having reviewed and disposed of all of defendant's contentions, we reject his contention that the cumulative effect of error prejudiced him, requiring reversal of the judgment.
IX
Attorney General's Contention of Unauthorized Sentence
The trial court added to defendant's determinate term a five-year enhancement for the prior serious felony conviction (§ 667, subd. (a)) and a one-year enhancement for the prior prison term (§ 667.5). The trial court did not add either enhancement to defendant's indeterminate term. The Attorney General asserts in respondent's brief on appeal that the omission of these "mandatory" enhancements results in an unauthorized sentence as a matter of law, which this court has the authority to correct on appeal. (People v. Relkin (2016) 6 Cal.App.5th 1188, 1197-1198.) Though not mentioned in respondent's brief, the prosecutor did raise the point in the trial court.
In his reply brief, defendant argues the enhancements may be imposed only once per case, and the one-year enhancement is not mandatory. We explain the five-year mandatory enhancement must be added to the indeterminate term, but the discretionary one-year enhancement need not be added.
A. Background
To each of the five Counts, the operative pleading alleged a prior conviction on October 31, 2006, for criminal threats (§ 422), as a prior strike warranting doubling of the term (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and a prior serious felony conviction warranting a five-year enhancement (§ 667, subd. (a)(1)). The pleading also alleged for each count a one-year prior-prison-term enhancement (§ 667.5, subd. (b)), citing three 2006 convictions (criminal threats, corporal injury to cohabitant, and evading a peace officer on October 31, 2006) and two 2009 convictions (possession of controlled substance and corporal injury to cohabitant on July 21, 2009).
Defendant admitted the five prior felonies at a bifurcated proceeding.
The trial court sentenced defendant to an indeterminate term for Count One (torture) of seven years to life, doubled under the Three Strikes Law (§ 667, subd. (e)) to 14 years to life, to be served after the determinate sentencing for the remaining counts as follows:
As to Counts Two and Three (assault with deadly weapon) - the court ordered the upper term of four years for each count, doubled to eight years for the prior strike, plus three years for great bodily injury (§ 12022.7, subd. (a)), not mentioned in the abstract of judgment), stayed pursuant to section 654;
Regarding Count Four (criminal threat), chosen as the principal term - the court ordered the upper term of three years, doubled to six years (§§ 1170, 667, subds. (b)-(i)), plus five years for prior serious felony conviction (§ 667, subd. (a)(1)), plus one year for prior-prison-term enhancement (§ 667.5, subd. (b)); and
As to Count Five (false imprisonment) - the court ordered a consecutive term of eight months (one-third the midterm), doubled to 16 months (§§ 1170, 667, subds. (b)-(i)), plus four months for the weapon-use enhancement.
The court added to each count a one-year weapon-use enhancement (§ 12022, subd. (b)(1)). The court added to the determinate sentence five years for the prior serious felony (§ 667, subd. (a)(1)), and one year for the prior-prison-term enhancement (§ 667.5, subd. (b)). The aggregate determinate sentence was 15 years and eight months.
The prosecutor argued in the trial court that the five-year and one-year enhancements should be applied twice -- once to the determinate sentence and once to the indeterminate sentence. The trial court expressed its view that the law was uncertain but suggested "priors aren't used twice. But . . . my tentative is to simply follow Probation. If there's an issue, I'm sure we'll be hearing it." The court observed some time had been spent on sentencing, and "we're doing the best that we can" and the Probation Department "did their homework," and the court was "very impressed with the report." The probation report recommended adding the one-year prior-prison-term and five-year prior-conviction enhancements to the determinate sentence. The report said nothing about adding or omitting them for the indeterminate sentence.
The court noted the Probation Report tacked a one-year weapon-use enhancement (§ 12022, subd. (b)(1)) for Count One (Torture) onto the determinate sentence, though torture was an indeterminate sentence. Both attorneys agreed that was fine.
B. Analysis
1. Five-Year Enhancement (§ 667, Subd. (a))
The People argue the trial court erred by failing to impose the five-year enhancement to his indeterminate sentence in addition to his determinate sentence. We agree.
Section 667, subdivision (a), provides in part: "Any person convicted of a serious felony who previously has been convicted of a serious felony in this state . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively. . . ."
Thus, this enhancement is mandatory.
The five-year prior-conviction enhancement is a status-based enhancement that can be added only once to multiple determinate terms imposed as part of a second-strike sentence pursuant to section 1170.1, subdivision (a). (People v. Sasser (2015) 61 Cal.4th 1, 6-7, 10, 15; see also, People v. Tassell (1984) 36 Cal.3d 77 [recividist enhancements should be applied only once].) The question here is whether it can be added once to the determinate sentence and once to the indeterminate sentence in the same prosecution. Although such sentencing occurred in Sasser, the Supreme Court did not need to decide the matter but instead noted the defendant did not challenge the prior conviction enhancements on the indeterminate sentence. (Sasser, at p. 7.) The Supreme Court did, however, observe in discussing the interplay of various sentencing laws that in People v. Williams (2004) 34 Cal.4th 397, the court "addressed whether the five-year prior serious felony enhancement can be applied to multiple indeterminate Three Strikes sentences. The defendant in Williams, who had two prior strikes, was convicted and sentenced for several current felonies. The trial court imposed four indeterminate sentences of 25 years to life and added a pair of five-year enhancements to each of the minimum terms, resulting in four sentences of 35 years to life. [Citation.] In affirming the judgment, [the Supreme Court] distinguished Tassell on the ground that section 1170.1 'applies only to determinate sentences' [orig. italics] and 'does not apply to multiple indeterminate sentences imposed under the Three Strikes Law.' [Citation.] Because the Three Strikes law does not distinguish between status-based enhancements and offense-based enhancements in the same manner as section 1170.1, and because the Three Strikes law 'generally discloses an intent to use the fact of recidivism to separately increase the sentence imposed for each new offense,' [the Supreme Court] concluded that 'section 667(a) enhancements are to be applied individually to each count of a third strike sentence.' [Citation.]" (Sasser, at p. 12.)
In People v. Misa (2006) 140 Cal.App.4th 837, the trial court sentenced the defendant to an indeterminate life sentence on a torture count based on the nature of the offense and a determinate sentence on an assault count and imposed separate five-year enhancements (§ 667, subd. (a)(1)) on the indeterminate and determinate sentences. (Id. at pp. 841, 845-846.) The appellate court held the trial court got it right. The Williams analysis was not dispositive because the reasoning there was based on the fact the defendant was sentenced under the Three Strikes law, whereas the defendant in Misa was sentenced to an indeterminate sentence based on the nature of the offense. (Misa, at pp. 845-846.) However, "the statutory language in section 667, subdivision (e), that the Williams court relied on in part to determine that the prior conviction enhancement must be applied to multiple strike offenses in third strike cases also applies to second strike sentences and thus supports the conclusion that a logical application of the Williams analysis in this context would require the imposition of the prior conviction enhancement on [the defendant's] second strike offense (the torture count) notwithstanding that the enhancement was also imposed as a status enhancement relating to the determinate term on the assault count." (Misa, at p. 846.) This comported with the purpose of the section 667, subdivision (a), enhancement to increase sentences for recidivist offenders. (Ibid.)
After briefing was completed in our appeal, the Second District issued its opinion in People v. Minifie (2018) 22 Cal.App.5th 1256, 1263, relying on Misa to hold that, where a prosecution resulted in both a determinate sentence and an indeterminate sentence based on the nature of the crime rather than the three strikes law, the trial court properly applied the prior-prison-term enhancement (§ 667.5, subd. (b)) to both the indeterminate and the determinate sentences (where the trial court had not elected to exercise its discretion to strike that enhancement under section 1385). (Minifie, at p. 1265 & fn. 18.)
"[I]mposition of an enhancement for a prior conviction on both the indeterminate and determinate sentences is consistent with the separate statutory sentencing schemes for indeterminate and determinate term crimes. . . . 'Sentencing under these two sentencing schemes must be performed separately and independently of each other. [Citation.] Only after each is determined are they added together to form the aggregate term of imprisonment.' [Citation.]" (People v. Minifie, supra, 22 Cal.App.5th at pp. 1263-1264.) This approach has been described as "sentencing in separate boxes." (Id. at p. 1264.)
"An indeterminate sentence imposed consecutively to a determinate sentence is governed by section 669, subdivision (a), section 1168, subdivision (b), and rule 4.451(a) of the California Rules of Court. [Citations.] Section 669, subdivision (a), provides in pertinent part, 'Life sentences, whether with or without the possibility of parole, may be imposed to run consecutively with one another, with any term imposed for applicable enhancements, or with any other term of imprisonment for a felony conviction.' . . . Section 1168, subdivision (b), provides, 'For any person not sentenced under such provision [the determinate sentencing law], but who is sentenced to be imprisoned in the state prison . . ., the court imposing the sentence shall not fix the term or duration of the period of imprisonment.' " (People v. Minifie, supra, 22 Cal.App.5th at p. 1264, italics omitted.) California Rules of Court, rule 4.451(a) provides that, when a defendant is sentenced under section 1170 and the sentence is to run consecutively to a section 1168(b) sentence, the judgment must specify the determinate term computed without reference to the indeterminate sentence, must order that the determinate term be served consecutively, and must identify the proceedings in which the indeterminate sentence was imposed. Section 1170.1, subdivision (a), provides the aggregate term shall be the sum of the principal term, subordinate term, and any additional term imposed for enhancements for prior convictions and prior prison terms. Because section 669, subdivision (a), provides for imposition of applicable enhancements to the indeterminate sentence and section 1170.1, subdivision (a), provides for imposition of applicable enhancements to the determinate sentence, Minifie concluded "the prior prison term enhancements under section 667.5, subdivision (b), are to be applied once to the indeterminate sentence and once to the determinate sentence, unless the court elects to strike the conviction under section 1385." (Minifie, at p. 1265.)
Since the five-year enhancement is mandatory (§ 667, subd. (a)), the trial court should have added it to defendant's indeterminate sentence as well as his determinate sentence, and we will accordingly modify the judgment.
2. One-Year Prior-Prison-Term Enhancement (§ 667.5)
The People urge the same result for the prior-prison-term enhancement. However, the prior-prison-term enhancement is different, because it is not mandatory.
"A section 667.5, subdivision (b), prior prison term enhancement, in contrast to a section 667, subdivision (a), serious felony conviction enhancement, may be stricken pursuant to section 1385, subdivision (a)." (People. v. Minifie, supra, 22 Cal.App.4th at p. 1265, fn. 18, citing People v. Garcia (2008) 167 Cal.App.4th 1550, 1561.) Here, the trial court did not "strike" the prior-prison-term enhancement, because the court applied it to the determinate sentence. However, section 1385 provides: "If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a)." (§ 1385, subd. (b).) Subdivision (a) of the statute says the "reasons for the dismissal shall be stated orally on the record."
Here, the prosecutor asked the trial court to apply the one-year prior-prison-term punishment to the indeterminate sentence. The court declined to do so, stating the law did not clearly require the court to do so, and the court found the probation department recommendations thorough and impressive.
We conclude the Attorney General fails to show that the omission of the one-year enhancement from the indeterminate sentence was an unauthorized sentence warranting correction on appeal.
DISPOSITION
We affirm defendant's convictions. We modify the judgment (Code Civ. Proc., § 906 [appellate court may modify judgment]) to add a five-year prior-conviction enhancement (§ 667, subd. (a)) to the indeterminate sentence. We direct the trial court to prepare an amended abstract of judgment (1) to reflect the five-year enhancement for the indeterminate sentence, and (2) to reflect the stayed enhancements for great bodily injury (§ 12022.7, subd. (a)) on the two assault counts (Counts Two and Three). The court shall transmit a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
/s/_________
HULL, Acting P. J. We concur: /s/_________
HOCH, J. /s/_________
RENNER, J.