Opinion
E067850
07-09-2018
THE PEOPLE, Plaintiff and Respondent, v. RENE HERRERA VAZQUEZ, Defendant and Appellant.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Genevieve Herbert, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI1501718) OPINION APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Affirmed as modified. Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant and appellant, Rene Herrera Vazquez, appeals from the judgment entered following jury convictions for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 1), making criminal threats (§ 422, subd. (a); count 2), stalking while a restraining order is in effect (§ 646.9, subd. (b); count 3), felony vandalism (§ 594, subds. (a), (b)(1); counts 4 & 5), and dissuading a victim/witness from prosecution (§ 136.1, subd. (b)(2); count 6). Defendant waived jury trial on his prior conviction allegations and admitted the truth of a prior serious or violent felony conviction in Los Angeles County. (§§ 667, subds. (b)-(i), 1170.12.) Specifically, defendant pled no contest to one count of assault with a deadly weapon (§ 245, subd. (a)(1)) on August 21, 2008. Defendant also admitted a five-year prior serious felony enhancement (§ 667, subd. (a)) and five prior prison terms.
Unless otherwise noted, all statutory references are to the Penal Code. --------
The trial court imposed determinate, second strike terms on all counts, denied defendant probation, and sentenced him to serve an aggregate term of 24 years in state prison. As part of defendant's aggregate sentence, the court imposed three distinct section 667, subdivision (a)(1), five-year prior serious felony enhancements, for counts 1, 2, and 6. The court, however, stayed the five-year prior serious felony enhancement on count 2, imposing only a total of 10 years in enhancements.
On appeal, defendant challenges the sufficiency of the evidence on which the jury found him guilty on counts 2 and 5. Defendant argues that his statements to the victim were not so unequivocal, immediate, and specific to be considered threats of death or great bodily injury under section 422. Defendant also argues that the jury had no direct evidence that he vandalized the garage door and was guilty of felony vandalism under section 594.
Moreover, defendant contends the trial court erred in imposing a section 667, subdivision (a)(1), five-year prior serious felony enhancement more than once at sentencing. The People agree with defendant and concede this court should strike all but one of the prior serious felony enhancements imposed under section 667, subdivision (a)(1).
We reject defendant's arguments that the jury had insufficient evidence to convict him for criminal threats under section 422 (count 2) and felony vandalism of the garage door under section 594 (count 5). However, we agree with defendant and the People that the trial court erred in imposing a section 667, subdivision (a)(1), five-year prior serious felony enhancement more than once at sentencing. We therefore strike two of the three section 667, subdivision (a)(1), prior serious felony enhancements, but otherwise affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Defendant's Marriage to the Victim
Defendant and D.V. (the victim) were married within a week after he finished serving time in prison on a drug conviction. Their marriage lasted only seven months because defendant soon became verbally and physically abusive toward her. Defendant would become so enraged at the victim that he would pound his fists on counters, kick her vehicle's dashboard, and raise his hand to strike her. The victim feared for her safety when defendant nudged her really hard, raised his fist and threatened to " . . . [her] up."
B. Defendant's Work in Ohio and the Victim's Separation
After their seventh month of marriage, defendant left the victim at home in San Diego to work in Ohio for two weeks. The victim took the opportunity to move out of their apartment and move in with her son in Victorville, California. The victim called defendant in Ohio to inform him that she was leaving him. Defendant told the victim she could not leave him.
When defendant returned from Ohio, he began to contact the victim through phone calls, text messages, and e-mails. Defendant told the victim that he wanted her back and they were "going to be married forever." Defendant also contacted the victim's son and brother to tell them that the victim would be sorry if she left him. Defendant even threatened to run his truck through the victim's mother's trailer. Defendant told the victim that "[her] family better watch out" and "to be careful," and not to make him do things that he would regret.
C. Events of Friday, July 10, 2015—The Victim Attempts to Close Joint Bank Account
On Friday, July 10, 2015, defendant spent the day verbally and physically intimidating the victim because she wanted to close out their joint bank account. Defendant repeatedly flew into a rage that day, first at the bank, then at a hotel, later at a Mexican restaurant, and finally in the victim's vehicle. Defendant threw his cell phone at the victim and then threw their possessions out of her vehicle, in the bank's parking lot, forcing the victim to pick up their possessions and put them back into the vehicle. He told the victim to get in her vehicle or he would do something he would regret. Defendant cursed at the victim and snatched her cell phone while she was asking a friend to stay on the line for support. Defendant then began ordering the victim to drive him to different locations, but at each location he refused to exit her vehicle and demanded that she drive him to another location. Defendant and the victim eventually stopped at a hotel, where defendant returned the victim's cell phone to her, and she was able to show defendant that she had paid off his bills. After the victim refused to shower with defendant, he insisted that they both eat, and they both went to a Mexican restaurant, where he became upset and stormed out. The victim called her friend once more and asked her to call 911 and have the authorities go to the hotel, where both the victim and defendant had a room. Back at the hotel, the victim ordered defendant to get his belongings out of the vehicle. She got into her vehicle as defendant was removing his items, locked the passenger doors, and began to drive away. Defendant hung on to her vehicle's mirror and pounded on it as the victim drove away.
D. Events of Monday, July 13, 2015—The Victim Files and Serves Restraining Order Papers
On Monday, July 13, 2015, the victim obtained a restraining order against defendant. The victim was at her brother's home later that day when defendant came to see her. The victim asked her brother to serve defendant with the restraining order papers outside the home while she remained inside. Defendant was served and then got into an angry and loud verbal dispute with the victim's brother. The victim called 911, but defendant left before the deputy sheriff arrived.
E. Events of Monday, July 13, 2015—Defendant Rams His Vehicle into the Victim's Vehicle
That evening, defendant pursued the victim in his vehicle as she was driving from her brother's home back to her son's home. The victim attempted to evade him, but defendant was still able to ram his vehicle into her vehicle at an intersection. The victim only escaped defendant by having her vehicle jump a curb and drive through a dirt lot. Later that day, defendant called his paternal opportunity programs and services mentor to admit that he "did something stupid," that he let his "anger get the best of [him]," and that he had rammed his vehicle into the victim's vehicle.
F. Events of Monday, July 13, 2015—Garage Door Damage
The victim knew that defendant was familiar with her son's home because she was residing there at the time and had often observed defendant waiting outside her son's home. The victim also knew that her son's garage door was undamaged prior to the afternoon of July 13, 2015. However, when she returned to her son's home, after having her brother serve defendant and after defendant rammed her vehicle, she discovered that her son's garage door had three dented panels and was incapable of being opened. The victim also discovered that the damaged portion of her vehicle had white and red paint streaks matching the paint of the white garage door and the paint of defendant's red vehicle. The victim paid $675 to repair the garage door.
G. Events of Monday, July 13, 2015—Defendant's Police Interview
Later that same day, defendant agreed to be interviewed at the Victorville police station by a deputy sheriff. Defendant described to the deputy how he had been in a "verbal altercation" with the victim's brother at the brother's home. He also said that he drove to the victim's son's home to wait for the victim after the verbal altercation. In the audio recording of his interview, defendant further stated that he and the victim were driving recklessly when he drove in front of her and hit her vehicle with his own vehicle. The deputy then arrested defendant on the charge of assault with a deadly weapon.
H. Defendant's Statements to the Victim—July 13, 2015, to September 30, 2015
After July 13, 2015, defendant communicated with the victim many times over several months, in text messages, hundreds of e-mails, and multiple daily phone calls. Defendant would tell the victim that divorce was not an option, since they were to stay married until "death do us part." Defendant told the victim how he had beaten up other people, once even pistol whipping a man and then putting the gun in his mouth. Defendant also told her "[h]e would do things," and he warned her, "[d]on't make me do things that you're going to regret." Additionally, defendant would tell the victim she and "[her] family better watch out." He remarked how the victim "didn't worry about the safety of [her] family, [and her] grandchildren." The victim feared for her safety and began to believe she "was not going to get out of the marriage alive."
I. Defendant's Sentencing
Defendant's 24-year total determinate term was comprised of the count 1 principal term, subordinate terms for the other counts, and three section 667, subdivision (a)(1), status enhancements. The count 1 principal term for assault with a deadly weapon totaled eight years, which consisted of the four-year upper term, doubled under the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12), but with a credit of 976 days for time served. Three subordinate terms together totaled four years, which consisted of three separate 16-month terms for the criminal threats (count 2), for one of the felony vandalism counts (count 5), and for dissuading a victim/witness from prosecution (count 6). Each 16-month term was one-third of the two-year middle term, doubled under the Three Strikes law. The subordinate term for stalking while a restraining order is in effect (count 3) totaled two years, which consisted of one-third of the three-year middle term, doubled under the Three Strikes law. Punishment on count 4 was stayed under section 654. The five prior prison terms were dismissed because defendant had remained free from custody for five years and, thus, the prison terms did not meet the requirements of section 667.5, subdivision (b). As for the status enhancements, the trial court imposed three distinct section 667, subdivision (a)(1), five-year prior serious felony enhancements, for counts 1, 2, and 6. The court, however, stayed the five-year prior serious felony enhancement on count 2, leaving only 10 years in enhancements.
The prosecutor had asked for the three section 667, subdivision (a)(1), five-year prior serious felony enhancements for counts 1, 2, and 6. Defendant's counsel expressed his doubt that the enhancements could be applied to individual counts, but merely suggested that the court impose only one enhancement. Defendant's counsel expressly objected to imposition of more than one section 667, subdivision (a)(1), five-year prior serious felony enhancement.
III.
DISCUSSION
Applying the substantial evidence standard, we review defendant's challenges to the sufficiency of the evidence for his criminal threats and felony vandalism convictions and his claim of sentencing error seriatim.
A. Standard of Review
"'In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'" (People v. Nelson (2011) 51 Cal.4th 198, 210, quoting People v. Guerra (2006) 37 Cal.4th 1067, 1129.) We look to the quality of the evidence, not the quantity. (Markow v. Rosner (2016) 3 Cal.App.5th 1027, 1045.) Thus, "circumstantial evidence can provide the sole basis for a verdict and, in such a case, can meet the substantial evidence test on appeal." (Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, 1110.) "'"[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.] We do not reweigh evidence or reevaluate a witness's credibility.'" (Nelson, supra, at p. 210, quoting People v. Guerra, supra, at p. 1129.) Furthermore, the testimony of a single witness is sufficient to support a conviction, unless that testimony is physically impossible or inherently improbable. (People v. Brown (2014) 59 Cal.4th 86, 106.)
B. Substantial Evidence Supports Defendant's Criminal Threats Conviction Under Section 422
Defendant challenges the sufficiency of the evidence on which the jury convicted him of criminal threats under section 422, for threatening the victim between July 13, 2015, to September 30, 2015. Specifically, defendant contends that the jury had insufficient evidence to find beyond a reasonable doubt that he made unequivocal, unconditional, immediate, and specific threats to commit a crime that would result in the victim's death or great bodily injury. We reject defendant's contention.
"In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat—which may be 'made verbally, in writing, or by means of an electronic communication device'—was 'on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances." (People v. Toledo (2001) 26 Cal.4th 221, 227-228.) Here, the victim offered at trial inherently credible testimony that constituted substantial direct and circumstantial evidence from which the jury could find beyond a reasonable doubt that defendant made unequivocal, unconditional, immediate, and specific threats to commit a crime that would result in the victim's death or great bodily injury.
The victim testified that defendant repeatedly told her divorce was not an option since they were to stay married until "death do us part." The victim also testified that defendant would say "[her] family better watch out" and that he remarked how she "didn't worry about the safety of [her] family, [and her] grandchildren, which he [knew were her] heart." Additionally, the victim testified that defendant warned her not to make him do things that she would "regret," and that "[h]e would do things." The victim further testified that defendant had told her he had committed acts of violence against other people, a fact acknowledged by defendant himself, who testified that he had told the victim about how he once pistol whipped a man and put the gun in his mouth. The victim testified as well that defendant regularly acted out his frustration and rage on his physical surroundings and had even rammed his vehicle into her vehicle on July 13, 2015. Moreover, the victim testified that she feared for her own safety, believing that she "was not going to get out of the marriage alive." The victim expressed her belief that defendant's two weeks in Ohio was the only opportunity she had to safely leave him. The victim recounted how, on July 10, 2015, she told her friend over the phone to call 911 because she felt defendant was going to kill her at the hotel. The victim testified that she felt it was necessary to obtain a restraining order. The victim described how, after July 13, 2015, defendant contacted her by text messages, hundreds of e-mails, and phone calls several times per day, every day, for several months. In view of this testimony, the jury had sufficient evidence to find beyond a reasonable doubt that defendant's threats were so unequivocal, unconditional, immediate, and specific that the victim could reasonably fear and did fear defendant would act on his threats.
Defendant nonetheless argues that, because the victim did not testify regarding his mannerisms or gestures while he made his statements to her, the jury had no evidence in his subsequent actions to justify interpreting his statements as criminal threats. Defendant instead maintains his "until death do us part" statements were part of his attempt to salvage their marriage, and his statements about how the victim would have regrets merely expressed his belief that she would miss him. We disagree.
"'To constitute a criminal threat, a communication need not be absolutely unequivocal, unconditional, immediate, and specific. The statute includes the qualifier "so" unequivocal, etc., which establishes that the test is whether, in light of the surrounding circumstances, the communication was sufficiently unequivocal, unconditional, immediate, and specific as to convey to the victim a gravity of purpose and immediate prospect of execution.'" (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1433.) All the surrounding circumstances, and not just the words alone, can establish that a threat was sufficiently unequivocal, unconditional, immediate, and specific. A jury is thus "'free to interpret the words spoken from all of the surrounding circumstances of the case,'" such that even an ambiguous statement can satisfy section 422. (People v. Hamlin, supra, at p. 1433.)
The jury in this case heard the victim recount how, in their seven months of marriage, defendant would act out his frustration and rage by pounding his fists on counters, nudging her, cursing her, kicking her vehicle's dashboard, and raising his hand to strike her. The victim confirmed for the jury that defendant had related to her how he had beaten up other people—a fact acknowledged by defendant himself—and that he threatened to " . . . [her] up." The victim testified that defendant had repeatedly told her "[h]e would do things," and he warned her, "Don't make me do things that you're going to regret." The victim also testified that defendant would say "[her] family better watch out," and that he threatened to run his truck through her mother's trailer. The victim further detailed the violent events of July 10, 2015, and July 13, 2015, in which he persisted in verbally and physically intimidating her and ultimately rammed his vehicle into her vehicle in an attempt to trap her in an intersection.
All these surrounding circumstances, as described in the victim's credible trial testimony, do not cast a positive light on defendant's statements regarding divorce not being an option, and that he and the victim were to stay married until "death do us part." From these circumstances, the jury could reasonably deduce that defendant was capable of violent, irrational conduct and was predisposed to harm the victim if she acted to end their marriage. The jury could also reasonably deduce from these circumstances that defendant's statements were meant to make the victim understand she would regret what defendant would do to her if she did act to end their marriage. In other words, the jury was free to interpret defendant's statements as threats of imminent harm and not as statements meant to salvage the marriage or communicate to the victim how much she would regret not being married to defendant. We thus conclude the jury had sufficient evidence to find beyond a reasonable doubt that defendant made an unequivocal, unconditional, immediate, and specific threat to commit a crime that would result in the victim's death or great bodily injury.
Defendant also contends that the prosecutor focused on defendant's "until death do us part" statements in closing argument and thus elected one of those statements as the only basis for the criminal threats charge. Defendant argues one of those statements alone would not constitute a criminal threat absent the prosecutor specifying in what context defendant made it or absent the trial court issuing a unanimity instruction. (People v. Butler (2000) 85 Cal.App.4th 745, 755-756, fn. 4 [failure of a prosecutor to elect which act supports a conviction is not always cured by giving a jury instruction that requires unanimous agreement on the particular act supporting the conviction].) While defendant concedes that "any error appears to be harmless," since his defense was the same for each instance he made those statements, the People nevertheless respond and argue that the prosecutor did not make an election during closing argument, but merely advocated for one theory of guilt. The People argue as well that defendant forfeited this election argument for lack of supporting authority and that the argument lacks merit because the jury did receive a unanimity instruction for the criminal threats count.
We agree with the People and reject defendant's contention. The record shows the prosecutor did not clearly elect the "until death do us part" statements as the only basis for the criminal threats charge. The record also shows that the jury did receive a unanimity instruction.
Therefore, upon examining the whole record in the light most favorable to the judgment, we conclude that substantial evidence supports defendant's criminal threats conviction under section 422.
C. Substantial Evidence Supports Defendant's Vandalism Conviction for Damage to the Garage Door Under Section 594
Defendant also challenges the sufficiency of the evidence on which the jury convicted him of feloniously vandalizing the garage door belonging to the victim's son under section 594. We reject this challenge as well.
Again, "we review the record in the light most favorable to the prevailing party, resolving in favor of the prevailing party all conflicts in either the evidence or the reasonable inferences to be drawn therefrom, to determine whether the record contains substantial evidence, contradicted or uncontradicted, supporting the finding." (Markow v. Rosner, supra, 3 Cal.App.5th at p. 1045.) We do not reweigh the evidence, determine the credibility of witnesses, or resolve conflicts in the testimony. (Gee v. Greyhound Lines, Inc. (2016) 6 Cal.App.5th 477, 485.) "Circumstantial evidence can be substantial evidence for an inference based on it." (Ensworth v. Mullvain, supra, 224 Cal.App.3d at p. 1110.)
To commit vandalism within the meaning of section 594, an individual must maliciously damage or destroy any real or personal property not his or her own. (§ 594, subd. (a); In re Leanna W. (2004) 120 Cal.App.4th 735, 743.) Vandalism becomes a felony offense "[i]f the amount of defacement, damage, or destruction is four hundred dollars ($400) or more . . . ." (§ 594, subd. (b)(1).)
In this case, the jury heard testimony from the deputy sheriff, who conducted defendant's audio recorded interview at the Victorville police station. The deputy attested to defendant admitting during the interview that he had been at the home of the victim's son on the afternoon of July 13, 2015. At trial, defendant corroborated the fact that he had been at the home on July 13, 2015.
The jury also heard testimony from the victim that she was residing with her son on July 13, 2015, the day defendant rammed his vehicle into her vehicle, and that she was aware defendant would often wait outside her son's home. The victim stated that her son's garage door was undamaged prior to the afternoon of July 13, 2015. However, when she returned to her son's home after having her brother serve defendant and after defendant rammed her vehicle, she discovered that her son's garage door had three dented panels and was incapable of being opened. The victim noticed as well that the damaged area of her vehicle had white and red paint streaks matching the paint of the white garage door and the paint of defendant's red vehicle. The victim further testified to having paid $675 to repair the garage door damage. Moreover, the jury received testimony from defendant's paternal opportunity programs and services mentor that, on July 13, 2015, defendant called him to admit that he "did something stupid," that he let his "anger get the best of [him]," and that he had rammed his vehicle into the victim's vehicle. Defendant had previously threatened to run his truck through the victim's mother's trailer, indicating the idea of ramming his vehicle into the victim's son's garage door was not foreign to him.
From this credible circumstantial evidence, the jury could reasonably infer that defendant was familiar with the garage belonging to the victim's son, that he had the opportunity to damage the garage door, and that the garage door was damaged on July 13, 2015, the day defendant rammed his vehicle into the victim's vehicle. The jury could also reasonably infer that defendant's red vehicle caused the $675 damage to the garage door because of the white paint streaks on the victim's vehicle. The jury could additionally infer that defendant, who was angry enough by his own admission to maliciously use his vehicle as a battering ram against the victim's vehicle, likewise used his vehicle to maliciously damage the garage door. Based on this credible circumstantial evidence, we conclude the jury could find defendant guilty beyond a reasonable doubt of felony vandalism under section 594.
Defendant, however, argues that the jury's finding was based on speculation, since there was no direct evidence that defendant caused the damage to the garage door. We disagree that direct evidence was required to support the jury's finding, and we will not reweigh the evidence.
"Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt." (People v. Pierce (1979) 24 Cal.3d 199, 210.) When the evidence of guilt is primarily circumstantial, the standard of appellate review is the same: "'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. "'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.'"'" (People v. Holt (1997) 15 Cal.4th 619, 668.) Here, while defendant's conviction for felony vandalism was based on circumstantial evidence, that evidence was substantial, that is, it was reasonable, credible and of solid value. (Markow v. Rosner, supra, 3 Cal.App.5th at p. 1045.) The circumstantial evidence also justified the jury's finding, since it compellingly linked defendant and defendant's vehicle to the damaged garage door. While that evidence may also be susceptible of another interpretation, we conclude it convinced the jury of defendant's guilt beyond a reasonable doubt and, thus, we are not warranted in reversing the judgment.
Therefore, based upon our examining the whole record in the light most favorable to the judgment, we conclude that substantial evidence supports defendant's vandalism conviction for damage to the garage door under section 594.
D. The Trial Court Erred in Imposing More Than One Section 667 , Subdivision (a)(1), Five-year Prior Serious Felony Enhancement
Finally, defendant contends the trial court erred in sentencing him when it imposed three section 667, subdivision (a)(1), five-year prior serious felony conviction enhancements. He argues that, as a second strike defendant, the court should have imposed only one such enhancement. The People agree and concede the trial court erred. We too agree, both on the law and the facts.
On the law, we note that a section 667, subdivision (a)(1), five-year prior serious felony enhancement is a status-based enhancement, not a specific enhancement added to each individual count. (People v. Sasser (2015) 61 Cal.4th 1, 16.) Status-based enhancements for prior felony convictions are added just once to the determinate portion of the overall sentence, as the final step in sentence computation. (Id. at pp. 10, 17.)
On the facts, we note that defendant admitted to the trial court that he suffered one prior serious felony conviction and that the court imposed determinate second strike terms on all counts. We also note the court imposed three distinct section 667, subdivision (a)(1), five-year prior serious felony enhancements, for counts 1, 2, and 6. While the court stayed the five-year prior serious felony enhancement on count 2, it still imposed two other five-year prior serious felony enhancements: an enhancement to defendant's conviction on count 1, the assault with a deadly weapon, and an enhancement to his conviction on count 6, the attempt to dissuade a witness/victim from prosecution. The court thus wrongly imposed two status-based enhancements to individual counts making up the determinate portion of defendant's sentence, adding 10 years to defendant's aggregate sentence.
In sum, we conclude the trial court erred in imposing more than one section 667, subdivision (a)(1), five-year prior serious felony enhancement. We also conclude that substantial evidence supports defendant's criminal threats conviction under section 422 and defendant's vandalism conviction for damage to the garage door under section 594. Based on the foregoing, we strike two of the three five-year prior serious felony enhancements.
IV.
DISPOSITION
The judgment is modified by striking two of the three section 667, subdivision (a)(1), five-year prior serious felony enhancements. We affirm the judgment in all other respects. The trial court is directed to modify the abstract of judgment in accordance with this opinion and forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
P. J. SLOUGH
J.