Opinion
E071359
03-26-2020
THE PEOPLE, Plaintiff and Respondent, v. MELINDA KAY THOMAS, Defendant and Appellant.
Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Waters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI17002966) OPINION APPEAL from the Superior Court of San Bernardino County. Debra Harris, Judge. Affirmed as modified and with directions. Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Waters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury found defendant and appellant, Melinda Kay Thomas, guilty of attempted criminal threat (Pen. Code, §§ 644, 422; count 1), a lesser included offense to the charge of criminal threat (§ 422), and further found that defendant was armed with a firearm in committing the attempted criminal threat. (§ 12022, subd. (a)(1).) The jury also found defendant guilty as charged in three additional counts, namely, two counts of possessing a firearm, a rifle and a handgun, as a felon (§ 29800, subd. (a)(1); counts 2 and 3), and one count possessing ammunition as a felon. (§ 30305, subd. (a)(1); count 4.) The court found that defendant had one prior strike conviction (§ 667, subds. (b)-(i)), one prior serious felony conviction (§ 667, subd. (a)), and two prison priors. (§ 667.5, subd. (b).) In October 2018, defendant was sentenced to 16 years in state prison.
Undesignated statutory references are to the Penal Code.
Defendant's 16-year aggregate sentence is comprised of six years (the upper term of three years, doubled based on the prior strike) on count 2, the principal count, plus eight months (one-third the middle term, doubled) on count 1, plus one year (the full term) for the armed enhancement on count 1, plus 16 months (one third the middle term, doubled) on count 3, plus five years for defendant's prior serious felony conviction and two years for her two prison priors. The court stayed a three-year term on count 4.
Defendant first claims that her attempted criminal threat conviction must be reversed because the court prejudicially erred in failing to instruct the jury sua sponte that an attempted criminal threat requires proof that "the intended threat under the circumstances was sufficient to cause a reasonable person to be in sustained fear." (People v. Chandler (2014) 60 Cal.4th 508, 525 (Chandler).) We agree that the instructions on attempted criminal threat erroneously omitted this element but conclude the error was harmless beyond a reasonable doubt. No reasonable juror could have concluded that defendant's threats were insufficient to cause a reasonable person in the victim's position to be in sustained fear, even though the jury reasonably could have concluded that the victim, Angel M., was not actually in sustained fear, and on that basis found defendant guilty of attempted criminal threat rather than the completed crime.
Second, defendant claims that the one-year term on her armed enhancement on count 1 must be stayed, given the longer terms imposed on her felon-in-possession-of-a-firearm convictions in counts 2 and 3. We disagree. The court implicitly found and substantial evidence shows that the armed enhancement on count 1 was based on defendant's act of texting Angel M. pictures of defendant's two firearms, while threatening to come to Angel's house and shoot him, but that defendant's firearm-possession convictions in counts 2 and 3 were based on defendant's separate acts of possessing the two firearms in her vehicle and on her person. Thus, separate punishment was properly imposed on the armed enhancement in count 1 and on the firearm-possession convictions in counts 2 and 3. Third, the People concede and we agree that the one-year term on the armed enhancement in count 1 must be reduced from one year to four months, because count 1 was a subordinate count, not the principal count, and enhancements on subordinate counts, like terms on subordinate counts, are limited to one-third of the middle term. (§ 1170.1, subd. (a).)
See footnote 2, ante.
Defendant further claims the matter must be remanded so the court may exercise its discretion whether to strike the five-year term on his nickel prior, or prior serious felony conviction. The People claim that remand for this purpose would be futile, but we disagree. Lastly, the parties agree, and so do we, that the one-year terms imposed on defendant's two prison priors must be stricken based on the enactment of Senate Bill 136 (Stats. 2019, ch. 590, § 1), which modified section 667.5, subdivision (b), effective January 1, 2020.
We modify defendant's sentence to reduce the term on her armed enhancement in count 1 from one year to four months and to strike the two one-year terms imposed on her two prison priors. We remand the matter so the court may determine whether the five-year term on defendant's prior serious felony conviction should be stricken in the interests of justice. We affirm the judgment in all other respects.
II. BACKGROUND
In January 2017, defendant and Angel M. began a dating relationship, and they moved in together in March 2017, sharing a home in Victorville. In July 2017, Angel ended the relationship and moved back into his family's home in Phelan where he lived with his parents, his adult sister, and his sister's son, his nine-year-old nephew. Angel's family home in Phelan was located on a dirt road, one to 1.5 miles away from the nearest paved road. The area around the home was dark at night, with no streetlights. Two pit bulls roamed the yard, which was surrounded by a chain-link fence with a "wobbly metal" front gate.
Because Angel had lived with defendant for several months, Angel knew that defendant drove a white Kia Rio and had two firearms: a .40-caliber Smith and Wesson handgun and a .357 Winchester rifle. Defendant kept the guns in soft gun bags in her bedroom closet at the Victorville house. Defendant was unhappy about her separation from Angel, although she did not try to renew the relationship. Before September 2017, defendant sent Angel angry and threatening text messages, but these texts did not cause Angel any concern; they were "just angry text messages."
Then, around 9:00 p.m. on September 16, 2017, defendant texted Angel: "You go out of your way to hurt me, hurt me. You love bullying me. What is wrong with you, Angel?" On the afternoon of September 17, defendant texted: "You just had to ruin everything one more time for me, huh?[,]" "Just wait, Angel, I'm going to fuck you over in every which way possible[,]" and "You fucking N*****, I'm going [to] put you out of your misery. Watch. I'm going to put a bullet right between your eyes. I hate you, you piece of shit."
Around 8:30 p.m. on September 19, 2017, defendant texted Angel a picture of her Winchester rifle. Three minutes later, she texted: "I'm on my way. I'm on my way to your house[,]" followed by: "We've played this game before. I won, remember." At 8:35 p.m., she texted: "I like audiences" followed by "Ready" and "It ends tonight." At 8:38 pm. she texted: "And almost had me arrested" followed, at 8:49 p.m., by "[W]hen your whole fucking family can watch me fucking put a bullet in both of us." Finally, at 8:57 p.m., she texted: "You could have ended this" and "You want it this? Fuck it. Let's play. Don't give a fuck" followed by a picture of her two firearms.
Defendant also left Angel several voicemails on the night of September 19, one saying, "I'm gonna shoot you right in the fucking face Angel," and others saying, as relayed by Angel, that "she was on her way, it ends tonight, and she was going to put a bullet in between [Angel's] eyes." In the voicemails, defendant's voice sounded "really angry" and she was "screaming." In one voicemail, Angel heard a door slamming and a car's ignition and blinker, which led Angel to believe defendant was truly on her way to his house.
Defendant's September 19 texts and voicemails made Angel fear for the safety of himself, his mother, sister, and his nephew, because all of them were present at the family's home in Phelan that night. Angel believed defendant might "pull up and just start shooting at the house." He showed his sister defendant's September 19 texts, including the pictures of defendant's two firearms, and he told his mother and his sister that they should take his nephew and immediately leave the house.
Angel's mother and sister refused to leave the house, and Angel's sister "took it upon [herself]" to call 9-1-1, as soon as she saw a white car "stopped" outside the gate to the house. Angel's mother also saw the white car "parked" in front of the house. "Numerous times" that night, the car was seen driving or "circling" near the house. Before she called 9-1-1, Angel's sister put her nine-year-old son, who had been sleeping, on the floor of her bedroom, because her son's bedroom was the closest to the fence surrounding the house, and, like Angel, she feared that defendant might "start firing into the house."
While Angel's sister was calling 9-1-1, the white car that was stopped outside the gate to the house drove away. A sheriff's deputy arrived at the house at 9:30 p.m., and at that time defendant was still calling Angel. At the deputy's instruction, Angel answered one of defendant's calls and told defendant that he would meet her at a gas station at "395 and Palmdale," although the plan was to have a deputy, rather than Angel, meet defendant at the gas station. The deputy left the house to meet defendant, but 10 minutes later, Angel texted the deputy that defendant was on her way to the house, so the deputy returned to the house before he arrived at the gas station.
When the deputy came back to the house, Angel went outside to speak with the deputy, and defendant was still calling Angel. Again, Angel answered, and defendant told Angel that she was lost near Angel's house and described her location. Defendant was crying and hysterical, and was telling Angel that she just wanted to come to his house to talk. Angel looked toward the location that defendant described, saw the headlights of a car, and told the deputy that defendant was at the location, which was around 200 feet away from Angel's house.
At this time, a sheriff's helicopter was in the air, and hearing the helicopter, defendant hung up her phone after asking Angel whether he was "setting her up" or "getting the cops on" her. Angel received no more calls from defendant that night. The deputy who responded to the 9-1-1 call stayed at Angel's house until shortly after 11:00 p.m., when other deputies stopped defendant's Kia and took her into custody.
Meanwhile, another sheriff's deputy, who was working as a flight officer in the helicopter, spotted a white Kia Rio driving near Angel's house. After the helicopter's spotlight flashed on the Kia, its driver accelerated and began driving at high rates of speed. The flight officer turned off the spotlight and began tracking the Kia with the helicopter's infrared system. Through the infrared system, the flight officer saw the driver of the Kia throw an item out of the driver's side window. The Kia then accelerated again, its headlights were turned off, and its driver stopped, got out, took an item from the trunk, and put the item into a dumpster. The item placed in the dumpster appeared to be a long rifle case. While tracking the Kia, the flight officer was in continuous communication with deputies on the ground.
At 11:11 p.m. on September 19, sheriff's deputies stopped the Kia and arrested defendant. She was the only person in the Kia, and no firearms were found inside the Kia. Deputies found the item that had been thrown from the Kia: an unloaded, .40-caliber semi-automatic Smith and Wesson handgun, together with a Glock magazine, but no ammunition, inside a black case. Inside the dumpster, deputies found a Winchester .357 rifle, loaded with ammunition, inside a soft case.
In February 2018, defendant called Angel, asking him to "drop the charges" and to meet her at a notary's office. There, Angel signed a notarized statement, under penalty of perjury, which defendant wrote for Angel to sign, stating among other things that Angel was not in fear for his life on September 19, 2017, and that he wanted the charges against defendant to be dropped.
At trial, Angel testified he signed the notarized statement because he did not want to testify and wanted the case to end. He also testified that he lied in the statement when he said he was not in fear for his life on September 19. He said he also lied when, in June 2018, he told a defense investigator that he had written the notarized statement himself and that he had not taken defendant's September 19 threats seriously. The operative second amended information alleged in count 1 that Angel was the victim of defendant's criminal threats, but did not allege that Angel's family members were victims.
III. DISCUSSION
A. The Trial Court Erroneously Failed to Instruct the Jury Sua Sponte on a Necessary Element of Attempted Criminal Threat, but the Error Was Harmless
Our state high court has ruled that, "To avoid substantial First Amendment concerns associated with criminalizing speech," the offense of attempted criminal threat must be construed as requiring "proof that the defendant had a subjective intent to threaten and that the intended threat under the circumstances was sufficient to cause a reasonable person to be in sustained fear." (Chandler, supra, 60 Cal.4th at p. 525.)
Defendant claims the court prejudicially erred in failing to instruct the jury sua sponte that the offense attempted criminal threat requires proof that "the intended threat under the circumstances was sufficient to cause a reasonable person to be in sustained fear." (Chandler, supra, 60 Cal.4th at p. 525.) The People concede the instructional error but argue it was not prejudicial; rather, it was harmless beyond a reasonable doubt. We agree with the People.
1. Relevant Background
Defendant was charged with criminal threat (§ 422; count 1), and the jury was instructed on the elements of criminal threat pursuant to CALCRIM No. 1300. The jury was further instructed on the lesser included offense of attempted criminal threat pursuant to CALCRIM No. 460. As given, CALCRIM No. 460 told the jury that, to prove defendant guilty of attempted criminal threat, the People had to prove two elements, namely, that defendant (1) took a direct but ineffective step toward committing criminal threat, and (2) intended to commit criminal threat.
The given version of CALCRIM No. 460 erroneously failed to include the third element of attempted criminal threat, namely, that "the intended criminal threat was sufficient under the circumstances to cause a reasonable person to be in sustained fear." (Chandler, supra, 60 Cal.4th at p. 525; see CALCRIM No. 460, Bench Notes, Instructional Duty ["If the jury is instructed on attempted criminal threat, give the following third element, as required by People v. Chandler (2014) 60 Cal.4th 508, 525 . . . . [¶] 3. The intended criminal threat was sufficient under the circumstances to cause a reasonable person to be in sustained fear"]; CALCRIM NO. 1300, Bench Notes, Instructional Duty ["If instructing on attempted criminal threat, give the third element in the bench notes of CALCRIM No. 460 . . . ."].) But the instructions on the completed crime of criminal threat, CALCRIM No. 1300, told the jury that "sustained fear means fear for a period of time that is more than momentary, fleeting, or transitory."
2. Analysis
As the People concede, the trial court had a duty to instruct sua sponte on all three elements of attempted criminal threat in this case, because substantial evidence showed that fewer than all of the elements of criminal threat were present. (See People v. Breverman (1998) 19 Cal.4th 142, 154; CALCRIM No. 460, Bench Notes, Instructional Duty ["The court has a sua sponte duty to instruct on the elements of the crime of attempt when charged, or, if not charged, when the evidence raises a question whether all the elements of the charged offense are present"].) Substantial evidence showed that defendant's September 19, 2017, threats did not actually cause Angel to be in sustained fear for his own safety, or for the safety of his immediate family, which is an essential element of the completed offense of criminal threat. (People v. Toledo (2001) 26 Cal.4th 221, 227-228; § 422; see CALCRIM No. 1300.)
Although Angel testified that defendant's September 19 threats actually caused him to fear for the safety of himself and his family members, before trial, in February 2018, Angel signed a notarized statement affirming that defendant's threats did not cause him to fear for his life. Based on this evidence, and in finding defendant guilty of attempted criminal threat rather than the completed crime, the jury reasonably could have concluded that defendant's September 19 threats did not actually cause Angel to be in sustained fear for his safety.
Nonetheless, the erroneous omission of the third element of attempted criminal threat from CALCRIM No. 460 was not prejudicial; it was harmless beyond a reasonable doubt. When, as here, the jury instructions have omitted an essential element of an offense, the error requires reversal of the conviction unless the entire record shows the error was harmless beyond a reasonable doubt. (See Neder v. U.S. (1999) 527 U.S. 1, 4; Chapman v. California (1967) 386 U.S. 18, 24.) "Instructional error is harmless [beyond a reasonable doubt] 'where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence.' " (People v. Mil (2012) 53 Cal.4th 400, 417, quoting Neder, at p. 17.)
Here, the third element of attempted criminal threat was uncontested and supported by overwhelming evidence. Although defense counsel argued to the jury that Angel was not actually in a sustained fear on September 19, given that he signed the February 2018 notarized statement, saying that defendant's threats did not cause him to fear for his life, the defense did not argue, or present any evidence showing, that defendant's "intended [criminal] threat . . . was . . . [in]sufficient under the circumstances to cause a reasonable person to be in sustained fear." (Chandler, supra, 60 Cal.4th at p. 525; see also CALCRIM 460.) Overwhelming evidence also showed that defendant's September 19 threat to come to Angel's house and shoot him in front of his family would have caused a reasonable person in Angel's position to be in sustained fear.
Indeed, defendant's threats to shoot Angel were accompanied by photographs of defendant's two firearms, which Angel knew that defendant had in her possession when he lived with her several months earlier. And, in her September 19 voicemail messages to Angel, defendant's tone of voice was very angry, and she was screaming. Angel, his mother, and his sister also saw what appeared to be defendant's white Kia Rio repeatedly "circling" the family's house, which was in a remote area. And while Angel's sister was calling 9-1-1, the white car was stopped or parked in front of the gate to the house. Although the house was surrounded by a chain-link fence and a front gate, and two pit bull dogs were roaming the yard inside the fence and gate, defendant could have "opened fire on the house" from outside the fence and gate. In these circumstances, a reasonable person in Angel's position would have been in sustained fear—both for their own safety and for the safety of their family members who were also present in the family's house. (See Chandler, supra, 60 Cal.4th at pp. 525-526.) Thus, the erroneous failure to instruct on the third element of attempted criminal threat "did not contribute to the verdict obtained." (Chapman v. California, supra, 386 U.S. at p. 24.)
Defendant argues that the facts of this case are similar to People v. Jackson (2009) 178 Cal.App.4th 590 (Jackson), where the defendant's attempted criminal threat conviction was reversed based on the failure to instruct the jury that, to find the defendant guilty of attempted criminal threat, the jury had to find that "the intended threat reasonably could have caused [the victims] sustained fear under the circumstances." (Id. at p. 599-600.) When the defendant in Jackson threatened to "chop" or blow" off the victims' heads, he was standing outside the victims' house, and the victims were "safely inside the house with a telephone to call the police." (Id. at p. 600.) Thus, in Jackson, the jury could have convicted the defendant of attempted criminal threat based on a finding that the victims did not actually suffer sustained fear, or a finding that, if the victims did suffer sustained fear, their fears were not reasonable because, under the circumstances, the defendant's threats were so outlandish they would not have caused a reasonable person to be in sustained fear. (Ibid.) In either case, the jury was not instructed that, to find the defendant guilty of attempted criminal threat, it had to find that a reasonable person in the victims' positions would have been in sustained fear, even if the victims were not actually in sustained fear. (Ibid.) Reversal of the attempted criminal threat conviction was necessary because the record did not establish that it was based on a valid legal ground. (Ibid; People v. Guiton (1993) 4 Cal.4th 1116, 1129.)
In arguing that Jackson is controlling, defendant claims the evidence allowed the jury to base its attempted criminal threat verdict on a finding that no reasonable person in Angel's position would have been in sustained fear. Like the victims in Jackson, defendant claims that Angel and his family were safety inside their house on September 19, "with access to law enforcement and two loose pit bull dogs in front of their house" when defendant was threatening to come to the house and shoot Angel in front of his family. Defendant also points out that "there was no evidence" that either Angel, his mother, or his sister saw defendant, or "specifically" saw defendant's car, "near the house during the threats."
Because Angel was the only alleged victim in count 1, the observations and fears of Angel's mother and his sister are relevant to whether Angel, or a reasonable person in Angel's position, would have been in sustained fear.
These arguments are unavailing because here, uncontroverted evidence shows that defendant's threats would have placed a reasonable person in Angel's position in sustained fear. In contrast to Jackson, the evidence did not permit the jury to find that defendant's threats to come to Angel's house and shoot him were, under the circumstances, so outlandish or unreasonable that they were insufficient to cause a reasonable person in Angel's position to be in sustained fear. Although neither Angel, his mother, nor his sister were certain that the white car they saw circling their house and stopped outside the gate to the house was defendant's white Kia Rio, they all believed that the white car was defendant's car, it certainly looked like defendant's car, and she had told Angel that she was coming to the house. Moreover, no evidence indicated that the white car was not or might not have been defendant's car. Thus, Angel's and his family's lack of certainty that the white car they saw was defendant's car did not support a finding, or allow a reasonable juror to conclude, that defendant's threats would not have placed a reasonable person in Angel's position in sustained fear.
Nor did the two pit bulls in the yard render defendant's threats to shoot Angel so outlandish or unreasonable that a reasonable person in Angel's position might not have been in sustained fear. All of the evidence showed that defendant could have "opened fire on the house" from outside the fence and gate, where the pit bulls could not reach her. Thus, in contrast to Jackson, no reasonable juror could have found that defendant's threats to shoot Angel were insufficient to cause a reasonable person in Angel's position to be in sustained fear—even if the jury concluded that Angel was not in actual sustained fear and found defendant guilty of attempted criminal threat, rather than the complete crime, on that ground. The trial court's failure to instruct on the reasonableness element of attempted criminal threat was thus harmless beyond a reasonable doubt. (Chandler, supra, 60 Cal.4th at p. 525-526 [distinguishing Jackson on the same ground in finding that the failure to instruct on the reasonableness element attempted criminal threat harmless beyond a reasonable doubt].) B. A Separate Term Was Properly Imposed on the Armed Enhancement
Defendant claims the one-year term on her armed enhancement on her attempted criminal threat conviction in count 1 was required to be stayed, given the longer terms of imprisonment imposed on her convictions in counts 2 and 3 for possessing two firearms—the rifle and handgun. We disagree.
"Section 654 prohibits multiple punishment for a single physical act that violates different provisions of law." (People v. Jones (2012) 54 Cal.4th 350, 358 (Jones).) Section 654 provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
Section 654 applies to enhancements, unless the specific enhancement statute provides that section 654 does not apply. (People v. Ahmed (2011) 53 Cal.4th 156, 163 ["Only if the specific [enhancement] statutes do not provide the answer should the court turn to section 654" in determining whether the term on the enhancement is required to be stayed].) Subject to exceptions not applicable here, the enhancement statute providing for defendant's armed enhancement, section 12022, subdivision (a)(1), provides for "an additional and consecutive term of imprisonment" on any person "who is armed with a firearm in the commission of a felony or attempted felony" "unless the arming is an element of that offense." Being armed with a firearm is not an element of an attempted criminal threat. Thus, section 654 applies in determining whether the sentence on defendant's armed enhancement in count 1 is required to be stayed.
"Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination." (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) The court's express or implied findings in support of its determination that section 654 does not apply will be upheld on appeal if substantial evidence supports them. (People v. Osband (1996) 13 Cal.4th 622, 730-731.) "[I]n some situations, physical acts might be simultaneous yet separate for purposes of section 654." (Jones, supra, 54 Cal.4th at p. 358.) That is the case here.
In sentencing defendant to separate terms on her armed enhancement in count 1 and on her two convictions for possessing two firearms as a felon in counts 2 and 3, the trial court implicitly found that separate physical acts underlay the enhancement and the convictions. Substantial evidence supports these findings.
Specifically, the court implicitly found and substantial evidence shows that the armed enhancement in count 1 is based on defendant's act of texting pictures of her two firearms, her rifle and her handgun, to Angel on September 19, while threatening to come to Angel's house and shoot him. (§ 12022, subd. (a)(1).) The court also implicitly found and substantial evidence shows that defendant's two convictions for possessing the same two firearms as a felon in counts 2 and 3 are based on defendant's separate acts of possessing each firearm in her car on September 19. (§ 29800, subd. (a).)
We stress that defendant's act of arming herself with the two firearms during her commission of the attempted criminal threat in count 1—by texting Angel pictures of the two firearms while threatening to come to Angel's house and shoot him on September 19—was an act separate and distinct from her acts of possessing the same two firearms in her vehicle, or otherwise having them in her possession, custody, and control on September 19. Simply possessing the firearms on September 19 also manifested a different intent and objective than using the firearms in connection with the criminal threat. Thus, separate punishment was properly imposed on the armed enhancement in count 1 and on the firearm-possession convictions in counts 2 and 3.
The court's section 654 analysis in People v. Corpening (2016) 2 Cal.5th 307 does not assist defendant's argument. There, our state high court clarified that, if separate offenses are completed by a single physical act or course of conduct, then 654 bars separate punishment for the offenses, and it is unnecessary to determine whether the separate acts evinced separate criminal intents and objectives. (Corpening, at pp. 311-315 ["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 intends and objectives"].)
Defendant's physical act of texting pictures of her two firearms to Angel on September 19, while threatening to come to Angel's house and shoot him, was a single physical act that completed the armed enhancement on defendant's attempted criminal threat conviction in count 1. Defendant's physical act of possessing the same two firearms in her vehicle on September 19, as a convicted felon, was separate from her act of texting photos of the two firearms to Angel on September 19. Her act of possessing the firearms completed the crimes of unlawful possession in counts 2 and 3. Her act of texting photos of the same two firearms to Angel, while threatening to come to his house and shoot him, completed the armed enhancement on her attempted criminal threat conviction in count 1.
Jones likewise does not support defendant's claim. There, our state high court held that "a single possession or carrying of a single firearm on a single occasion may be punished only once under section 654." (Jones, supra, 54 Cal.4th at p. p. 357.) The trial court imposed separate terms on three convictions, all of which were based on the defendant's single act of having a single firearm in his vehicle (i.e., in his possession) on a single occasion: (1) possessing a firearm as a felon; (2) carrying a readily accessible concealed and unregistered firearm; and (3) carrying an unregistered loaded firearm in public. (Id. at pp. 352-353, 359.) In holding that section 654 allowed the defendant to be punished only once for his single act of possessing and carrying a single firearm—even though the defendant possessed the firearm as a felon and the firearm was loaded, concealed, and unregistered—the Jones court relied on "the single act language" of section 654. (Jones, at pp. 359-360.) But here, defendant's armed enhancement is based on her act of texting pictures of her firearms to Angel while threatening to shoot him; it is not based on her acts of possessing the same two firearms in her vehicle and on her person—the acts underlying her convictions for possessing the two firearms as a felon in counts 2 and 3.
People v. Buchanan (2016) 248 Cal.App.4th 603 is similarly distinguishable. There, the court followed Jones and concluded that the defendant could only be punished once for having a single firearm in his vehicle on a single occasion. (Buchanan, at pp. 613-614.) The defendant's four sentencing enhancements for being armed during the commission of four narcotics-related felony offenses (§ 12022, subd. (c)) were required to be stayed under section 654 because each enhancement, like the defendant's felon-in- possession-of-a firearm conviction, were based on the defendant's possession of a single firearm on a single occasion. (Buchanan, at pp. 606, 617.) That is, no separate act of being armed in the commission of the narcotics-related felonies, apart from the possession of the same firearm underlying the defendant's firearm possession conviction, supported the armed enhancements on the narcotics-related felonies. That is not the case here. C. The One-Year Term on the Armed Enhancement Must Be Reduced to Four Months
Defendant alternatively claims that, if the one-year term on her armed enhancement in count 1 is not stayed, then it must be reduced to four months—to one third of the full one-year term, because count 1 was a subordinate count, not the principal count. We agree.
At oral argument, the People conceded this claim of error.
At sentencing, the court designated count 2 as the principal count, sentenced defendant to six years on count 2 (the upper term of three years, doubled based on the prior strike), and sentenced defendant to a consecutive eight-month term (one-third the middle term, doubled) on her attempted criminal threat conviction in count 1. Over defendant's objection, , the court sentenced defendant to the full one-year term on the armed enhancement on count 1 (§ 12022, subd. (a)(1)), rather than one-third of that term, or four months. (§ 1170.1, subd. (a).)
As relevant here, section 1170.1, provides that when a defendant is currently convicted of two or more felonies, and a consecutive term is imposed pursuant to sections 699 and 1170, "the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes," and "[t]he subordinate term for each consecutive offense shall consist of one-third of the middle term . . . and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses. (§ 1170.1, subd. (a), added italics) For purposes of section 1170.1, a " 'specific enhancement' means an enhancement that relates to the circumstances of the crime" and includes enhancements under section 12022. (§ 1170.11.)
Thus, one-third of the full one-year term (§ 12022, subd. (a)(1)), or four months, was required to be imposed on the armed enhancement on count 1. We therefore modify defendant's sentence to reduce the term on her armed enhancement in count 1 from one year to four months. The People agree that the one-year term on the armed enhancement must be reduced, but they argue it must be reduced to eight months, not four months, because it must be doubled based on defendant's prior strike conviction. We disagree.
Nothing in the "Three Strikes" law requires the doubling of the term on a sentencing enhancement. (See § 667, subd. (e).) Rather, when, as here, a defendant has one prior strike conviction "[t]he Three Strikes law calls for a 'determinate term' that is 'twice the term otherwise provided as punishment for the current felony conviction' (§ 667(e)(1), italics added). . . ." (People v. Sasser (2015) 61 Cal.4th 1, 12.) The determinate term on defendant's attempted criminal threat conviction in count 1 was doubled, from four months to eight months. But there is no authority for doubling the four-month term on the armed enhancement in count 1. C. Remand is Necessary for the Court to Consider Whether to Strike the Five-Year Term on Defendant's Prior Serious Felony Conviction
Defendant claims the matter must be remanded to the trial court so that it may exercise its new discretion to determine whether to strike the five-year term imposed on defendant's prior serious felony conviction. We agree.
On September 30, 2018, the Governor signed Senate Bill 1393 (Stats. 2018, ch. 1013, §§ 1-2), which became effective on January 1, 2019. (Cal. Const., art. IV, § 8, subd. (c); People v. Garcia (2018) 28 Cal.App.5th 961, 971). Senate Bill 1393 amended sections 667, subdivision (a) and 1385, subdivision (b), effective January 1, 2019, to grant courts discretion, which they did not have under the prior statutes, to strike or dismiss a prior serious felony conviction for sentencing purposes. (Garcia, at p. 971.) Thus, effective January 1, 2019, courts have discretion to impose or not to impose a five-year term on a prior serious felony conviction. (§§ 667, subd (a), 1385, subd. (b).)
Defendant was originally sentenced on October 12, 2018. At that time, the court acknowledged that the law regarding prior serious felony convictions had recently changed, but noted that the new law would not become effective until January 1, 2019. Thus, the court imposed the five year term.
In November 2018, a panel of this court concluded that Senate Bill 1393 applies retroactively to all cases which were not or would not be final on appeal on January 1, 2019. (People v. Garcia, supra, 28 Cal.App.5th at pp. 971-973.) But, when defendant was sentenced in October 2018, no published decision had determined that Senate Bill 1393 applied retroactively. Because defendant's case is not final yet on appeal (see Garcia, at p. 973), the matter must be remanded so the court may exercise its discretion and determine whether, in the interests of justice, the five-year term that the court originally imposed on defendant's prior serious felony conviction should be stricken, or to strike the prior serious felony conviction in the interest of justice.
The People argue remand would be futile because "the record makes clear the trial court would not have exercised its discretion to dismiss her enhancement for her serious prior felony conviction." We disagree.
" ' "If the record shows that the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required." ' [Citation.]" (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) But, for remand to be futile, the record must clearly indicate that the court would not have exercised its discretion to strike the enhancement. (Ibid; People v. Jones (2018) 32 Cal.App.5th 267, 273.) Here, the record does not clearly indicate that the court would not have imposed the five-year term on defendant's prior serious felony conviction, had the court known that it had the discretion not to impose the five-year term at defendant's original sentencing hearing.
The People concede that the trial court "did not make an explicit statement" that it would not have exercised its discretion to strike the prior serious felony conviction for sentencing purpose, if it had the discretion to do so. Instead, the People argue the record "strongly indicates" that the court was "not inclined" to reduce defendant's punishment "in the furtherance of justice" and was instead inclined to impose the maximum sentence allowable. Indeed, the court denied probation, imposed the upper terms on counts 2 and 4, and ran the subordinate terms on counts 1 and 3 consecutive rather than concurrent to count 2. The court also denied defendant's motion to reduce her conviction in count 1 to a misdemeanor.
Still, on this record, the court's other sentencing choices do not clearly indicate that the court would not have declined to impose the five year term if it knew it had the discretion not to impose the five-year term, and to instead strike the prior serious felony conviction for sentencing purposes. In acknowledging the recent passage of Senate Bill 1393, the court only noted that the new law was not in effect until January 1, 2019. The court said, "It's effective in 2019, so the court will impose the five years." This indicates that the court may have declined to impose the five year term, if it knew it had the discretion to make that choice. D. The Two One-Year Terms on Defendant's Two Prison Priors Must Be Stricken
On October 8, 2019, while this case was pending on appeal, the Governor signed Senate Bill 136, which amended Penal Code section 667.5, subdivision (b), effective January 1, 2020, to allow a prison prior to be imposed only if the underlying felony conviction is a sexually violent offense listed in subdivision (b), of section 6600 of the Welfare and Institutions Code. (Stats. 2019, ch. 590, § 1.) Defendant's two prison priors are not based on sexually violent offenses.
The parties and we agree that Senate Bill 136 applies retroactively to all judgments of conviction, which are not final on appeal when the legislation became effective on January 1, 2020. As of this writing, the court in one published decision, People v. Lopez (2019) 42 Cal.App.5th 337 has reached the same conclusion. We agree with Lopez. In short, Senate Bill 136 lessens the punishment for a sentencing enhancement, and there is no indication that the Legislature intended Senate Bill 136 to only apply prospectively. Thus, Senate Bill 136 applies retroactively—to all judgments of conviction, including defendant's, which are not final or will not be final on appeal on its effective date, January 1, 2020. (Id. at pp. 340-343; In re Estrada (1965) 63 Cal.2d 740, 744-746 [absent contrary legislative intent, legislation which lessens punishment for a crime applies retroactively to all judgments of conviction not final on appeal when the legislation went into effect]; People v. Nasalga (1996) 12 Cal.4th 784, 792 ["The rule in Estrada has been applied to statutes governing penalty enhancements, as well as to statutes governing substantive offenses"]; see also People v. Garcia (2018} 28 Cal.App.5th 961, 971-973 [ameliorative amendments to §§ 667, subd. (a) and 1385, subd. (b), apply retroactively to judgments not yet final when amendments went into effect on January 1, 2019].)
Thus, we further amend the judgment to strike the one-year terms on defendant's two prison priors, and we also strike the true findings on the two prison priors. In the aggregate, our two amendments to the judgment (striking the two one-year terms on the prison priors and reducing the one-year term on the armed enhancement to four months) reduce defendant's 16-year sentence to 13 years four months.
If, on remand, the trial court strikes the five-year term on defendant's prior serious felony conviction, that will further reduce defendant's sentence to eight years four months. Because the court imposed the maximum possible sentence, there is no need for the court to exercise its sentencing discretion anew on the aspects of defendant's sentence unaffected by our amendments and the five-year term on the prior serious felony conviction. (People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15.)
See footnote 2, ante.
IV. DISPOSITION
The judgment is amended (1) to reduce the term on the armed enhancement on defendant's attempted criminal threat conviction in count 1 from one year to four months, and (2) to strike the one year terms on defendant's two prison priors and the true findings on the prison priors. The matter is remanded to the sentencing court with directions to determine whether the five-year term on defendant's prior serious felony conviction should be stricken in the interests of justice, along with the true finding on the conviction.
The court is further directed to prepare a supplemental sentencing minute order and an amended abstract of judgment, reflecting this court's modifications to the judgment and the court's decision whether to strike or retain the five-year term and the true finding on defendant's prior serious felony conviction. The court is further directed to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: MILLER
Acting P. J. SLOUGH
J.