Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super.Ct.No. FVI023184. Eric M. Nakata, Judge. Reversed with directions.
Jamie L. Popper, under appointment by the Court of Appeal, for Defendant and Appellant.
OPINION
RICHLI Acting P.J.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Sabrina Y. Lane-Erwin, Deputy Attorney General, for Plaintiff and Respondent.
Defendant Coliss Bryane Williams walked up to a bagger in a supermarket. He told her that “there was a bomb in a basket” and that “when he gave [her] a look [she was] to follow him out of the store.” He then left. The bagger was frightened because she believed the bomb threat was genuine, but in fact it was false.
A jury found defendant guilty on one count of making a false bomb report (Pen. Code, § 148.1, subd. (c)) and one count of making a criminal threat (Pen. Code, § 422). In a bifurcated proceeding, the trial court found that defendant had one prior serious felony conviction (Pen. Code, § 667, subd. (a)) and one “strike” prior (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). As a result, defendant was sentenced to a total of 10 years 4 months.
Defendant now contends:
1. The trial court erred by coercing defendant into withdrawing his pretrial Marsden motion.
A Marsden motion is a motion to discharge existing appointed counsel, based on ineffective assistance, and to appoint new counsel. (People v. Marsden (1970) 2 Cal.3d 118.)
2. The trial court erred by failing to treat certain remarks that defendant made at the sentencing hearing, along with a letter he had sent, as a posttrial Marsden motion.
3. The trial court’s imposition of separate, consecutive, and unstayed sentences violated Penal Code section 654 (section 654).
4. Defense counsel rendered ineffective assistance by failing to challenge the dual use of a threat of bodily harm as a sentencing factor.
5. The trial court’s imposition of consecutive sentences violated the Sixth Amendment.
We find no error with respect to defendant’s pretrial Marsden motion. We do agree, however, that the trial court erred by failing to afford defendant a posttrial Marsden hearing. We also agree that the sentence violated section 654. Modifying the sentence to eliminate the section 654 violation necessarily will also eliminate any Sixth Amendment violation. Finally, we find no prohibited dual use of facts.
Accordingly, we will reverse with directions to hold a posttrial Marsden hearing; if the trial court denies the Marsden motion, however, it must reinstate the judgment, as modified.
II
FACTUAL BACKGROUND
On December 14, 2005, around 5:30 p.m., defendant was in a Stater Bros. supermarket in Victorville. He bought something at checkstand one. He then walked up behind Anna Marie Smith, who was bagging groceries at checkstand two.
Defendant put his hand on Smith’s shoulder and leaned in, so that his face was only about three inches away from hers. He told her that “there was a bomb in a basket, and when he gave [her] a look [she was] to follow him out of the store.” Smith was “terrified.” She believed that there was a bomb in the supermarket.
Leslie Lindo, the cashier at checkstand two, noticed that Smith had turned “beet red” and looked scared. Lindo asked defendant, “What did you say?” He pointed at one of the male baggers and said, “He keeps staring at me.” Lindo told him to ignore it. Defendant asked, “Well, [are] they going to call the cops?” Lindo said, “No,” then added, “It’s no big deal.” Defendant left.
Smith then told Lindo, “[T]hat’s not what he said.” She explained about the bomb threat. Lindo told her to tell a manager. Smith told manager Jose Macias. Macias searched the store for any sign of a bomb, found none, then called 911.
The incident was captured on a surveillance video, which was shown to the jury.
Meanwhile, a customer who heard Smith tell Lindo about the bomb threat “was . . . in a panic . . . .” At the customer’s request, Amanda Medina, another bagger, helped her out to her car. When they got outside, defendant was walking across their path; he said to Medina, “Just watch what’s going to happen.” Medina was “scared”; after putting the customer’s groceries in her car, she told Macias what had happened.
A group of people had been panhandling outside the store earlier that day; when Macias went outside to contact them, they left. Macias thought defendant had been one of them.
When the police questioned defendant, he admitted being in the supermarket. He said he asked a bagger about some flowers, and he asked a cashier “why some man was watching him.” He denied saying anything about a bomb.
III
DISCUSSION
A. Pretrial Marsden Motion.
Defendant contends that the trial court erred by coercing him into withdrawing his pretrial Marsden motion.
1. Additional factual and procedural background.
On June 2, 2006, defendant wrote a letter to the trial court stating, “I can’t go on with [appointed defense counsel] as my attorney . . . .” Apparently as a result, on June 21, 2006, the trial court held a Marsden hearing. In his letter and during the hearing, defendant stated that he was dissatisfied with his defense counsel, essentially because:
1. Defendant’s previous appointed counsel had not secured victim Smith’s attendance at the preliminary hearing: “My first public defender told me that the witness was subpoenaed to court. All the times that I came to prelim, I had three different preliminary hearings. Nobody still didn’t come. . . . [¶] . . . [¶] . . . [M]y case is a misunderstanding. I didn’t tell this girl nothing like that. [S]he probably took what I said the wrong way, but I feel that she should have came to court and really testified against me . . . .” Defendant argued that this made it harder for him to decide whether or not to enter into a plea bargain: “ . . . I feel like a little safer if I at least had somebody come on the stand just so I can feel better signing to a deal.”
2. Defense counsel was not “trying to prove [defendant’s] innocence”: “My public defender . . . made me feel like he just wanted to send me to the pen.” Thus, defense counsel had not tried to get the case dismissed or to bring the case to trial. Defendant asserted that defense counsel had let him remain in jail in order to pressure him into accepting a plea bargain.
3. Defense counsel had requested a psychiatric evaluation that defendant did not want or need: “I didn’t agree to a psych[] evaluation, and my public defender took it upon himself to just sign me up for a psych[] evaluation. . . . [¶] . . . [¶] . . . [T]here ain’t nothing wrong with me. I graduated. I got jobs. I work . . . .” Moreover, the psychiatric evaluation had further delayed the trial: “I say I’m ready to go to trial, but you’re going to tell me you don’t think I understand my case and sign me up for a psych[] evaluation?”
This dialog followed:
“THE COURT: . . . You just said a whole bunch of stuff in a short period of time, okay. And what I need to know is what is it about [defense counsel], what he’s not doing that makes you want to fire him.
“THE DEFENDANT: I just feel . . . like he’s not doing nothing to help me get out of this situation that I’m in.
“THE COURT: He may not be able to get you out of this situation. [¶] . . . [¶] . . . [W]hat has [defense counsel] done as far as representing you that you’re not happy about?
“THE DEFENDANT: He hasn’t done anything I’ve asked him.
“THE COURT: Well, have you?
“THE DEFENDANT: Well, I’m like —
“THE COURT: Wait a minute. His turn now.”
Defense counsel then noted that he was not the attorney who had handled the preliminary hearing. Rather, he was the fourth attorney assigned to the case. Ever since his assignment, he had been trying to negotiate a plea bargain. “[Defendant] always kept talking about witnesses, all right. I’ve always been trying to tell him, [‘]Let me first try to do what I can do to resolve this case to get you a better offer.[’]” Defense counsel had in fact obtained a plea offer that would result in a 16-month sentence. “Unfortunately, [defendant] kept talking about witnesses and he wouldn’t stop talking about witnesses.” He stated, “I’ve explained to [defendant] that realistically based on the facts of this case your case will not get dismissed.”
The trial court told defendant, “Now you may respond.” Defendant then said: “[S]ee, he’s telling me and my mom two different things. . . . [T]hat’s . . . why my mom agreed to a psych[] evaluation, because he had my mom believing that if I played crazy that it would be better towards my case.”
The trial court then stated:
“THE COURT: . . . If I allow you to fire [defense counsel] you would get somebody from the Conflict Panel. I’m not very happy with the Conflict Panel as it stands because they have very inexperienced lawyers . . . who handle very serious cases . . . . [Defense counsel] has the benefit of not only himself but his office to help him . . . . He has the resources of the public defender’s office which are by comparison much greater than the Conflict Panel. [¶] . . . [¶]
“So I can do that but I can guarantee you with some degree of certainty you’re not going to like the lawyer that I give you. . . . [Defense counsel] is willing to try your case. These other folks, they want you to plead and they’re going to come up to you and . . . give you a plea bargain and stick it in your case and say, [‘]This is the best that you’re going to get and you better take it.[’] Do you want someone like that on your side or someone like [defense counsel] that is going to fight for you?
“THE DEFENDANT: . . . I told [defense counsel] . . . I’m ready to go to trial. . . . Why he file for a psych[] evaluation on me?
“THE COURT: Because quite frankly, Mr. Williams, even like right now when I ask you a simple question . . . you start going off all over the place. . . . [A]nd by the nature of your crime here that you’re charged with, they can say, [‘]Well, maybe he’s not all quite there.[’] Now he knows. Now he can prepare his defense based on the doctor’s report . . . .
“Now, . . . you’re going to have to give him names if you want him to do the research and subpoena people. If you have witnesses, bring them in. If you want to go to trial he’s prepared to try the case. I can just about guarantee you that the folks on the Conflict Panel wouldn’t. I see this every day. [‘]Here’s a plea form, Judge. Here’s a plea form. [’] He’ll try your case. He’s a good trial lawyer, . . . but the Conflict Panel, they rarely try cases unless you get lucky and get one of the good ones. But there isn’t very many good ones on there, to be honest with you. [¶] . . . [¶]
“THE DEFENDANT: I don’t want to lose.
“THE COURT: Nobody wants to lose. Look, man, there aren’t no guarantees. That’s what he’s telling you.”
After some further discussion of the terms of the offered plea bargain, the trial court said:
“THE COURT: . . . [Defense counsel] is working on getting you the best plea bargain that he can get you, because that’s part of his job, too, to do the best for his client. But if you want and you demand your day in court for trial he’s the man to do it. He can do it for you. [¶] . . . [¶]
“[Defense counsel], do you feel that you can work with Mr. Williams?
“[DEFENSE COUNSEL]: I believe that I can. Now that I’m more relatively certain that in fact he does understand what’s going on, which I wasn’t before.
“THE COURT: Okay. Mr. Williams, is that all right? Are you cool with him?
“THE DEFENDANT: Yes.
“THE COURT: Okay. The Marsden is denied.”
2. Analysis.
When a defendant makes a Marsden motion, “the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of counsel’s inadequacy. [Citations.] ‘A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.’ [Citations.]” (People v. Cole (2004) 33 Cal.4th 1158, 1190, quoting People v. Jones (2003) 29 Cal.4th 1229, 1244-1245.)
“‘[A] Marsden hearing is not a full-blown adversarial proceeding, but an informal hearing in which the court ascertains the nature of the defendant’s allegations regarding the defects in counsel’s representation and decides whether the allegations have sufficient substance to warrant counsel’s replacement.’ [Citation.]” (People v. Alfaro (2007) 41 Cal.4th 1277, 1320, petn. for cert. filed Dec. 26, 2007, quoting People v. Hines (1997) 15 Cal.4th 997, 1025.)
“The decision whether to grant a requested substitution is within the discretion of the trial court; appellate courts will not find an abuse of that discretion unless the failure to remove appointed counsel and appoint replacement counsel would “substantially impair” the defendant’s right to effective assistance of counsel.’ [Citation.]” (People v. Abilez (2007) 41 Cal.4th 472, 488, quoting People v. Roldan (2005) 35 Cal.4th 646, 681.)
Here, defendant stated three main complaints. First, he complained about the failure to subpoena the victim to testify at the preliminary hearing. This decision, however, had been made by a different attorney, before the challenged attorney had taken over the case. Thus, it did not reflect on the challenged attorney.
Second, defendant complained that defense counsel had not tried to get the case dismissed on the ground that defendant was innocent. After the preliminary hearing, however, the only way to get the case dismissed was to show that there had been insufficient evidence to support the decision to hold defendant to answer. (See Pen. Code, § 995.) Defendant did not claim that there was insufficient evidence, only that additional evidence should have been presented. But even assuming that Smith, Lindo, and Macias, if called, would have given exculpatory testimony, once the preliminary hearing was over, it was too late to obtain a dismissal on that ground. Thus, it does not appear that defense counsel’s failure to assert defendant’s innocence as grounds for a dismissal constituted ineffective assistance.
Third, defendant complained that defense counsel had requested a psychiatric evaluation. However, this was merely a “disagreement as to tactics, which, by itself, is insufficient to compel discharge of appointed counsel. [Citation.]” (People v. Cole, supra, 33 Cal.4th at p. 1192.) The trial court, in its discretion, found that there were grounds for a reasonable suspicion that defendant was not competent; defendant does not argue that this was an abuse of discretion. Defense counsel therefore had a duty to explore any possible related defenses.
Defendant argues that defense counsel had “advised him [to] obstruct justice and commit perjury by pretending to be crazy.” At the Marsden hearing, however, defendant asserted only that defense counsel had advised his mother that he should “play crazy”; moreover, he asserted that defense counsel had been telling him and his mother “two different things.” Thus, it does not appear that defense counsel had ever actually advised defendant to pretend to be insane or incompetent.
Defendant also argues that defense counsel was focusing on getting him a plea bargain, rather than on investigating the witnesses and taking the case to trial. Once again, this reflected a mere disagreement over tactics. Competent counsel could reasonably conclude that defendant would be better served by a plea bargain than by a trial (indeed, in hindsight, this was clearly correct). Defendant was not asserting that defense counsel had failed to investigate witnesses for the purpose of preparing for trial; rather, he was asserting that investigating, subpoenaing, or interviewing the witnesses would somehow lead to a dismissal of the case. As we have already discussed, competent counsel could reasonably disagree.
We therefore conclude that the trial court properly denied defendant’s Marsden motion.
Defendant’s challenge to the denial of his Marsden motion, however, is really only a secondary contention. His primary contention is that the trial court coerced him into withdrawing his Marsden motion by improperly disparaging the attorneys on the conflict panel.
The problem with this contention is that defendant had already finished making his motion. The trial court had allowed him to explain why he was dissatisfied with his defense counsel; it had allowed defense counsel to respond; and it had allowed defendant to respond to defense counsel’s response. It did not prevent defendant from stating any concerns that he may have had. This concluded the trial court’s duty of inquiry. (See People v. Turner (1992) 7 Cal.App.4th 1214, 1218-1219.)
Defendant does claim that the trial court cut him off.
At that point, as we have already held, it could properly have denied the motion. Before doing so, however, it seems to have tried to assuage defendant’s lingering — albeit unfounded — dissatisfaction with his defense counsel by convincing him that he was really better off than if his motion were granted. Thus, it does not appear that the trial court actually coerced defendant into anything. Defendant had already aired his motion fully, and the trial court went on to deny it squarely.
This is not to say that we recommend the trial court’s comments as good practice. We can envision other circumstances, in other cases, in which similar comments could rise to the level of reversible error. It suffices to say that there are no such circumstances in this case.
B. Posttrial Marsden Motion.
Defendant contends that the trial court erred by failing to treat a letter he sent and certain remarks that he made at the sentencing hearing as a posttrial Marsden motion.
1. Additional factual and procedural background.
Before sentencing, defendant sent a letter to the trial court in which he insisted that he was innocent and requested a “retrial.”
At the sentencing hearing, the trial court asked defendant if he would like to say anything. Defendant responded: “I really kind of just want to apologize for having everybody here. With all due respect, [defense counsel], you know, I know you did what you could to represent me, but at the same time I also feel like I couldn’t win the trial if you thought I said it. I couldn’t win. Like the first thing you said on my closing statement was I admit what Mr. Williams said was dumb. That just said that I said it right there.”
In closing argument, defense counsel had argued that defendant was merely trying to “hit on” the victim. He suggested that the victim might have misheard defendant’s statement; for example, defendant might have actually said, “You’re the bomb . . . .” However, defense counsel also stated, “It may not have been the smartest thing to say . . . .” He further stated, “I’m not going to lie to you. What [defendant] said was stupid.”
Defendant then claimed that, far from saying there was “a bomb in a basket,” he had actually called the victim’s attention to his “bomber jacket,” in an effort to flirt with her. In a rambling diatribe that covers eight pages of the reporter’s transcript, he continued to insist that he was innocent. At one point, he said, “Like I said, [defense counsel], it was — like I said before the closing statements started it was certain things you should have did. Like you should have brought up the police report when she got on the stand.” Later, he also said, “It a [sic] just like I know you could have did like — I feel like you could have did a whole lot better than what you did representing me just because of the facts. How are you going to defend me with your making it seem like you want to keep the statement in my favor? That’s why I’m here, because I’m telling you that I didn’t say it. But you’re taking me to trial but you want me to roll along with it. I feel like I should have got on the stand.”
The surveillance video has not been transmitted to this court. Smith testified that defendant was wearing “a black sweater with a hood that had like fur around it.” Medina described it as “a black jacket with a hood that had fur around it.”
2. Analysis.
“[A] defendant is entitled to appointment of substitute counsel upon a proper showing posttrial or postconviction as well as pretrial.” (People v. Smith (1993) 6 Cal.4th 684, 692.) Ordinarily, “‘“[a]lthough no formal [Marsden] motion is necessary, there must be ‘at least some clear indication by defendant that he wants a substitute attorney.’” [Citation.]’ [Citation.]” (People v. Dickey (2005) 35 Cal.4th 884, 920, quoting People v. Valdez (2004) 32 Cal.4th 73, 97, quoting People v. Mendoza (2000) 24 Cal.4th 130, 157, quoting People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8.) In the posttrial context, however, where the defendant may not know what is left for a substitute attorney to do, this requirement has been relaxed somewhat.
For example, in People v. Kelley (1997) 52 Cal.App.4th 568, the defendant “filed a written motion requesting a new trial, setting forth claims under penalty of perjury that his attorney refused to let him testify, and failed to subpoena, or failed to call, several material witnesses, the materiality of whom he set forth in detail.” (Id. at p. 579.) The appellate court stated: “Although Kelley did not expressly seek to have his attorney replaced, his complaints plainly set forth an arguable case of the attorney’s alleged incompetence, the requisite ground for replacement of counsel under Marsden. [Citations.] Obviously, counsel would have a conflict of interest representing Kelley on a motion for new trial based on a prima facie showing of incompetence. [Citation.] And the Supreme Court continues to recognize a preference for resolving such issues, if possible, by way of a motion for new trial. [Citation.] For these reasons, Kelley’s complaints related to his attorney’s alleged incompetence were sufficient to trigger the need for a Marsden inquiry.” (Id. at p. 580, fn. omitted.)
More recently, in People v. Eastman (2007) 146 Cal.App.4th 688, the defendant entered a no-contest plea. (Id. at p. 690.) At sentencing, however, through his appointed counsel, he indicated that he wanted to make a motion to withdraw his plea. (Id. at p. 691.) He submitted a letter from his mother, addressed to the district attorney, formally accusing both the prosecutor and defense counsel of committing misconduct by telling the defendant falsely that his mother had agreed to testify against him. (Id. at pp. 691-692.) The trial court denied the motion to withdraw the plea. (Id. at pp. 694-695.)
The appellate court, however, held that the trial court erred by failing to hold a Marsden hearing. (People v. Eastman, supra, 146 Cal.App.4th at p. 695.) It noted: “Although Eastman did not expressly ask to have his attorney replaced, the letter did request that Eastman receive an ‘adequate defense’ and his complaints set forth an arguable case that a fundamental breakdown had occurred in the attorney-client relationship that required replacement of counsel. The court was obliged to make a record that this complaint had been adequately aired and considered. [Citation.] Its failure to do so is error.” (Id. at pp. 695-696.)
Here, as in Kelley and Eastman, defendant did not expressly ask to have his attorney replaced. Nevertheless, he did state a prima facie claim of ineffective assistance; he asserted that defense counsel (1) had failed to impeach the victim with the police report, (2) had not called defendant to testify on his own behalf, and (3) had essentially conceded in closing argument that defendant had said that there was a bomb in a basket. The trial court erred by failing to treat this as a Marsden motion.
The People argue that defendant had complained about his defense counsel before, not only at a pretrial Marsden hearing (see part III.A, ante), but again before trial and yet again just before closing arguments. They conclude that, as a result, the trial court had no reason to view defendant’s posttrial remarks as a Marsden motion. But surely the opposite is true — in light of this past history, the trial court had all the more reason to understand defendant’s remarks as a request for the appointment of new counsel. Moreover, even though we held, in part III.A, ante, that the trial court did not err by disparaging the conflict panel, that disparagement is entitled to some weight in this calculus; it may have prevented defendant from specifically requesting new counsel, despite his dissatisfaction with his existing counsel.
The People also argue that defendant failed to show that there were sufficient grounds for granting a motion for a new trial. This is beside the point. First of all, precisely because the trial court failed to hold a Marsden hearing, defendant never had the opportunity to flesh out his claims, and the trial court never had the opportunity to investigate them. Second, if a posttrial Marsden motion is granted, the usual remedy is the appointment of substitute counsel, whose first order of business is to consider whether to file a motion for new trial based on ineffective assistance of counsel. (See People v. Smith, supra, 6 Cal.4th at p. 692.) It would be absurd to require a defendant to present a fully developed ineffective assistance of counsel claim as a predicate for having new counsel appointed to investigate such a claim.
The erroneous failure to hold a Marsden hearing is generally considered prejudicial per se. (People v. Lewis (1978) 20 Cal.3d 496, 499; People v. Winbush (1988) 205 Cal.App.3d 987, 991.) The appropriate appellate remedy is to reverse and remand with directions to hold a new Marsden hearing. If the Marsden motion is denied, the trial court must reinstate the judgment. (People v. Eastman, supra, 146 Cal.App.4th at p. 699; People v. Ivans (1992) 2 Cal.App.4th 1654, 1667-1668 [Fourth Dist., Div. Two]; Winbush, at p. 992.)
C. Sentencing Issues.
1. Additional factual and procedural background.
The probation report indicated that two aggravating factors applied: (1) the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness (Cal. Rules of Court, rule 4.421(a)(1)); and (2) defendant was on probation when the crime was committed (see Cal. Rules of Court, rule 4.421(b)(4)). It indicated that there were no mitigating circumstances.
At sentencing, the trial court found that both of the aggravating factors listed in the probation report applied. It added, however, “[T]he only mitigating factor that I can find is [defendant’s] youth.”
On count 2 (making a criminal threat), which the trial court selected as the principal term, it sentenced defendant to two years (the midterm), doubled under the three strikes law, for a total of four years. On count 1 (making a false bomb report), it sentenced defendant to eight months (one-third the midterm), doubled, for a total of one year four months. On the prior serious felony enhancement, it sentenced defendant to an additional five years, to be served consecutively. Thus, the total sentence was 10 years 4 months.
2. Violation of section 654 .
Defendant contends that the trial court’s imposition of separate, consecutive, and unstayed sentences on both count 1 (making a false bomb report) and count 2 (making a criminal threat) violated Penal Code section 654.
Penal Code section 654 (section 654), subdivision (a), as relevant here, 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.”
“‘Insofar as only a single act is charged as the basis for the conviction . . ., the defendant can be punished only once.’ [Citation.] . . . ‘Few if any crimes, however, are the result of a single physical act. “Section 654 has been applied not only where there was but one ‘act’ in the ordinary sense . . . but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654.” [Citation.]’ [Citation.]
“. . . ‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ [Citation.]” (People v. Latimer (1993) 5 Cal.4th 1203, 1208, quoting Neal v. State of California (1960) 55 Cal.2d 11, 19, quoting People v. Brown (1958) 49 Cal.2d 577, 591.)
Here, defendant was convicted of both crimes based on the single act of telling Smith that there was a bomb in a basket. The People argue that defendant committed these crimes with two distinct intents and objectives — the intent to victimize Smith, and the intent to victimize Stater Bros. and/or its employees and customers generally. However, given that both crimes consisted of the same act, even assuming they were committed with multiple simultaneous intents, we see no way to assign one intent to one crime and a different intent to the other crime. (See People v. Mendoza (1997) 59 Cal.App.4th 1333, 1345-1346.) Moreover, when both crimes consist of the same act, there is no need to resort to the “intent and objective” test. (See People v. Gbadebo-Soda (1989) 215 Cal.App.3d 1371, 1375.)
Alternatively, the People rely on the “multiple victim” exception to section 654. Under the multiple victim exception, “‘[s]ection 654 is not “. . . applicable where . . . one act has two results each of which is an act of violence against the person of a separate individual.” [Citations.]’ [Citation.]” (People v. Oates (2004) 32 Cal.4th 1048, 1063, quoting Neal v. State of California, supra, 55 Cal.2d at pp. 20-21, quoting People v. Brannon (1924) 70 Cal.App. 225, 235-236.) Making a criminal threat is a violent crime for purposes of the multiple victim exception, because it requires “sustained fear.” (People v. Solis (2001) 90 Cal.App.4th 1002, 1023-1024.) By contrast, making a false bomb report does not require that the bomb report be credible or that it place anybody in actual fear. (See Pen. Code, § 148.1, subd. (c).) Thus, it is not a violent crime for purposes of the multiple victim exception.
We also note that the information alleged that Smith was the victim of both crimes. The People argue that “the multiple victim exception may apply even if the identities of the victims were not pleaded.” Even if so, here the identity of the victim was pleaded, and it was expressly alleged to be the same with respect to both crimes. For this reason, too, the multiple victim exception does not apply.
The jury found defendant not guilty on a second count of making a additional criminal threat, in which the alleged victim was Medina.
We conclude that the trial court erred by imposing unstayed sentences for both making a false bomb report and making a criminal threat. The appropriate appellate remedy is to stay execution of the sentence on the less serious count, defined as the count that carries the shorter potential term of imprisonment. (People v. Norrell (1996) 13 Cal.4th 1, 8-9; In re Wright (1967) 65 Cal.2d 650, 655, fn. 4.) Here, however, the same sentencing range applies to both counts. (Compare Pen. Code, § 148.1 with Pen. Code, § 422; see also Pen. Code, § 18.) Thus, we believe we are free to stay the sentence on either count. We note that the trial court selected making a criminal threat as the principal term. For that reason, we choose to stay the sentence for making a false bomb report.
3. Failure to raise dual use at sentencing.
Defendant contends that his defense counsel rendered ineffective assistance of counsel at sentencing by failing to challenge the dual use of a threat of bodily harm.
Defendant argues that the trial court erred by relying on the fact that he threatened great bodily harm, either in selecting the midterm rather than the lower term, or in choosing to sentence consecutively, because a threat of great bodily harm was an element of both of the charged offenses. Although, as he concedes, any such error was forfeited by his defense counsel’s failure to object at sentencing (People v. Scott (1994) 9 Cal.4th 331, 353), he argues that this very failure to object constituted ineffective assistance of counsel.
In part III.C.2, ante, we held that the trial court erred by imposing separate and consecutive sentences on both counts. Accordingly, any other error with respect to consecutive sentencing is moot. We will consider defendant’s present contention solely with respect to the choice of the midterm.
Defendant’s contention that the consecutive sentences were imposed in a way that violated the principles stated in Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] and its progeny is also moot.
Rule 4.420(d) of the California Rules of Court, as it stood when defendant was sentenced, provided: “A fact that is an element of the crime may not be used to impose the upper term.” There was no statute or rule that prohibited using an element of a crime in deciding, as the trial court did here, to impose the midterm. Certainly defendant cites none. In fact, People v. Garcia (1983) 147 Cal.App.3d 1103 held that an element of the crime could used to impose the midterm. (Id. at p. 1106.) It follows that defense counsel did not render ineffective assistance by failing to object on dual use grounds.
Effective May 23, 2007, rule 4.420(d) was amended so as to provide: “A fact that is an element of the crime may not be used to impose a greater term.” (Italics added.) We express no opinion on the effect, if any, of this amendment.
IV
DISPOSITION
The judgment is reversed.
On remand, the trial court must hold a new posttrial Marsden hearing. If it denies the Marsden motion, it must reinstate the judgment, with the following modifications.
Execution of the sentence on count 1 (making a false bomb report) must be stayed; this stay will become final when defendant has served the remainder of his sentence. Thus, defendant’s total sentence will become nine years.
We concur: KING J., MILLER J.
After he had stated his concerns, the trial court tried to follow up twice. First, it said, “ . . . I need to know . . . what is it about [defense counsel], what he’s not doing that makes you want to fire him”; then it asked, “[W]hat has [defense counsel] done as far as representing you that you’re not happy about?” Defendant did not provide any more information, so the trial court asked defense counsel to respond. At that point, defendant interrupted, saying, “Well, I’m like . . . .” The trial court cut him off, saying, “Wait a minute. His turn now.”
Once the trial court had asked defense counsel to respond, however, it was entitled to enforce order in its courtroom by preventing defendant from talking out of turn. When defense counsel had finished, the trial court let defendant speak again, evidently until he had said all he had to say. Thus, even though it did cut defendant off temporarily, it did not prevent him from stating any of the grounds for his motion.
Defendant is not challenging the trial court’s decision to run the five-year prior serious felony enhancement consecutively. This was not an exercise of discretion; the trial court was required to do so. (Pen. Code, § 667, subd. (a).)