Opinion
D075840
04-24-2020
THE PEOPLE, Plaintiff and Respondent, v. JEREMY ARENAS, Defendant and Appellant.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C. Ragland, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCS303353) APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Affirmed in part, vacated in part, and remanded with instructions. Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Jeremy Arenas guilty of robbery (Pen. Code, § 211), making a criminal threat (§ 422), and attempting to prevent or dissuade a witness from testifying (§ 136.1, subd. (a)(2)), along with a true finding that Arenas personally inflicted great bodily injury in committing the robbery (§ 1192.7, subd. (c)(8)). Arenas admitted three prior strike convictions (§§ 667, subds. (b)-(i), 1170.12), two prior serious felony convictions (§ 667, subd. (a)(1)), and two prior prison term convictions (§ 667.5, subd. (b)). After striking two of the prior strikes, the trial court sentenced Arenas to a prison term of 22 years four months.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Arenas contends that (1) insufficient evidence supports the verdict on the robbery count; (2) the trial court prejudicially erred by failing to instruct on grand theft as a lesser included offense of robbery; (3) the trial court prejudicially erred by denying Arenas's motion to sever the trial on the charge of attempting to prevent or dissuade a witness from testifying; and (4) because the record does not reflect that the trial court understood it had discretion to strike the five-year sentencing enhancements for Arenas's two prior serious felony convictions, this matter should be remanded for the trial court to decide whether to exercise that discretion.
We conclude that Arenas's contentions lack merit. However, as the People point out, due to a change in the law since Arenas was sentenced, the one-year term that the trial court imposed based on Arenas's prior prison term pursuant to former section 667.5, subdivision (b), must be stricken. Accordingly, we remand with directions for the trial court to strike the one-year enhancement and to resentence Arenas.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of July 30, 2018, Francisco was pushing his ice cream cart on a residential street. Arenas approached Francisco in an aggressive and angry manner and took multiple bags of chips from a basket on Francisco's cart. As Francisco later testified, it appeared that Arenas was leaving with the chips and going back to his house. Francisco said something to Arenas to find out what was happening, such as "Hey, are you going to pay for those chips?" or "What are you doing?" According to Francisco, Arenas then turned toward him and threw the chips on the ground. Both men then took a fighting stance with their arms raised, and Arenas punched Francisco in the face, causing Francisco's face to bleed from his eyebrow. Francisco punched back at Arenas but did not know if his punch connected. Francisco then kicked Arenas, and ran across the street, leaving his cart. Arenas picked up a rock or other object and threw it across the street at Francisco, but did not hit him. Francisco heard Arenas state that he was going to kill Francisco by shooting him with an AK-47 rifle.
To preserve his privacy, we will refer to Francisco by his first name, and we intend no disrespect by doing so.
Arenas then left the scene, and Francisco and other witnesses called 911 to report the incident. During his 911 call, Francisco described the beginning of the incident as follows: "[W]hen I was heading up [the street], he came out very aggressive and began acting like in a fighting position. And I just stood there and he grabbed the chips, and so I told him to put it back and so he didn't return them and he wanted to fight. I was simply defending myself and I took him on too."
As Francisco testified, two drivers passed by during the incident. One of those drivers testified at trial that she saw an angry Arenas throw something at a bleeding Francisco as he ran across the street, and that she pulled over to call 911. The audio from the 911 call of a second witness was played at trial.
Arenas was arrested several weeks later. He was charged with one count of robbery (§ 211) and one count of making a criminal threat (§ 422), with the further allegations that Arenas personally inflicted great bodily injury in committing the robbery (§ 1192.7, subd. (c)(8)), and that Arenas had incurred three prior strike convictions (§§ 667, subds. (b)-(i), 1170.12), two prior serious felony convictions (§ 667, subd. (a)(1)), and two prior prison term convictions (§ 667.5, subd. (b)).
At the preliminary hearing on September 26, 2018, Arenas disrupted the proceedings while Francisco was testifying. Specifically, as the deputy sheriff assigned to the courtroom later testified, Arenas spoke in both Spanish and English as he yelled at Francisco, saying things such as, "You don't know me. You've never seen me before," "You're going to pay," and "I'm going to get my revenge." As Francisco later testified at trial, Arenas directed curse words toward him at the preliminary hearing and threatened that Francisco was going to pay as soon as Arenas got out of custody.
Based on the threats that Arenas made to Francisco at the preliminary hearing, an amended information was filed, which added the charge of attempting to prevent or dissuade a witness from testifying (§ 136.1, subd. (a)(2)). Prior to trial, the court denied Arenas's motion to sever the trial of the two counts arising out of the altercation over the chips from the count arising from Arenas's statements at the preliminary hearing.
At trial, Francisco testified to the events as we have described them. Arenas testified in his own defense. He contended that he intended to pay for the chips, but he first had to go back to the house to get money because he forgot his wallet. Arenas also testified that Francisco initiated the fight by punching and kicking him, and that he never punched Francisco. According to Arenas, Francisco received the injury to his eyebrow when he charged at Arenas and collided with Arenas's elbow, which was raised in self-defense. Arenas denied he threw anything at Francisco or threatened to shoot him. Arenas also testified that he left the scene after the incident because he was on probation and was afraid to go to jail if he ended up having contact with the police. Arenas further denied making any threats to Francisco during the preliminary hearing.
The jury found Arenas guilty on all three counts and further found that Arenas personally inflicted great bodily injury in committing the robbery. Arenas admitted three prior strike convictions (§§ 667, subds. (b)-(i), 1170.12), two prior serious felony convictions (§ 667, subd. (a)(1)), and two prior prison term convictions (§ 667.5, subd. (b)). At sentencing, the trial court struck two of Arenas's prior strikes and sentenced Arenas to a prison term of 22 years four months. As relevant here, the sentence included a one-year term for one of the prison priors, and two five-year terms for the two serious felony priors.
II.
DISCUSSION
A. Substantial Evidence Supports the Robbery Conviction
We first consider Arenas's contention that insufficient evidence supports his conviction for robbery.
1. Applicable Legal Standards
In considering a challenge to the sufficiency of the evidence, "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. . . . We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. . . . If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. . . . 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Albillar (2010) 51 Cal.4th 47, 60, citations omitted.)
"Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) "The intent required for robbery has been described as the specific intent to deprive the victim of the property permanently. [Citations] Thus, 'the act of force or intimidation by which the taking is accomplished in robbery must be motivated by the intent to steal . . . .' " (People v. Anderson (2011) 51 Cal.4th 989, 994.) "A defendant who does not use force or fear in the initial taking of the property may nonetheless be guilty of robbery if he uses force or fear to retain it or carry it away in the victim's presence. [Citations] That is, '[a] robbery is not completed at the moment the robber obtains possession of the stolen property. The crime of robbery includes the element of asportation, the robber's escape with the loot being considered as important in the commission of the crime as gaining possession of the property. . . . [A] robbery occurs when defendant uses force or fear in resisting attempts to regain the property or in attempting to remove the property from the owner's immediate presence regardless of the means by which defendant originally acquired the property.' " (People v. McKinnon (2011) 52 Cal.4th 610, 686-687.) In accordance with these principles, the jury was instructed with CALCRIM No. 1600, that for a robbery conviction the People must prove that "[t]he defendant used force or fear to take the property or to prevent the person from resisting."
Arenas makes two separate challenges to the sufficiency of the evidence to establish the elements of robbery, which we consider in turn.
2. Substantial Evidence Supports a Finding That Arenas Took the Chips Without Intending to Pay for Them
First, Arenas contends that insufficient evidence supports a finding that he intended to steal the chips by taking them without paying for them. Arenas argues that "there was no evidence that [he] intended to steal the chips other than [Francisco] stating that he had the feeling that [Arenas] was going to steal the chips because people always pay before taking the chips from his cart." Arenas argues that the evidence showed "that [he] was a thuggish looking individual, and thus [Francisco] may have been overreacting in his initial evaluation of the situation, i.e., that he was dealing with a thief." Arenas contends that, accordingly, insufficient evidence supports the jury's finding that he intended to steal the chips rather than pay for them.
We reject the argument. "A trier of fact may infer the intent to steal from all the direct and circumstantial evidence." (People v. Jackson (2016) 1 Cal.5th 269, 345.) Indeed, "[i]ntent to steal is often proved by circumstantial evidence." (People v. Abilez (2007) 41 Cal.4th 472, 508.) During his testimony, Francisco described the circumstances that made him conclude that Arenas intended to take the chips without paying for them. Francisco explained that his customers normally greet him, ask for what they want, and then pay him, whereas Arenas simply grabbed the chips without saying anything. In addition, Francisco observed that Arenas was walking in an aggressive manner when he approached and seemed "mad, angry." After grabbing the chips, Arenas turned away toward the house where he came from and started to walk away. Based on the totality of his observations, Francisco concluded that Arenas "had grabbed the [chips] like he was leaving with them." Not only do Arenas's actions and demeanor in taking the chips support an inference that he intended to steal them, Arenas's reaction when Francisco confronted him further supports that conclusion. Specifically, when Francisco asked Arenas what he was doing, Arenas did not reply that he was going to go get some money, which would be the reasonable response if indeed Arenas intended to pay. Instead, Arenas reacted violently by punching Francisco. As the finder of fact, the jury was entitled to rely on Francisco's assessment of the situation, along with Arenas's reaction when Francisco confronted him to infer that Arenas took the chips without intending to pay for them.
3. Substantial Evidence Supports a Finding that Arenas Used Force to Prevent Francisco from Resisting His Attempt to Steal the Chips
Second, Arenas contends that insufficient evidence supports a finding that, when he used force against Francisco, it was for the purpose of stealing the chips or preventing Francisco from resisting his attempt to steal them.
As we have explained, "mere theft becomes robbery if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot." (People v. Gomez (2008) 43 Cal.4th 249, 257.) If such a defendant "truly abandoned the victim's property before using force, then, of course he could be guilty of theft, but not of . . . robbery." (People v. Pham (1993) 15 Cal.App.4th 61, 68 (Pham), italics added.) On the other hand, when a defendant puts down the property that he is attempting to steal in order to fend off an attempt to stop him from getting away with the property, the force or fear element of robbery is still satisfied, even if the defendant is not holding the property when he uses fear and force, and even if the defendant does not end up carrying away the property.
This principle is best illustrated in Pham, supra, 15 Cal.App.4th 61. In that case, a man saw the defendant stealing objects from his car. (Id. at p. 64.) As the man approached, the defendant fled with a bag containing items he took from the car. (Ibid.) The man chased the defendant and managed to grab onto his shirt. The defendant then dropped the bag and began slugging the man in the head. (Ibid.) Another man arrived and helped to subdue the defendant, who continued to resist. (Ibid.) Police eventually arrived and arrested the defendant. (Ibid.) Pham rejected the defendant's argument that no robbery occurred because defendant threw down the bag before using force. "[T]he possession and asportation of the victims' property began when defendant started to walk away from [the] car with the loot and continued throughout the time defendant forcibly resisted the victims' attempts to take back their property. There is no requirement that defendant escape with the loot or that he reduce the property to his sole possession by chasing the victims away." (Id. at pp. 66-67, italics added.) As the court explained, the defendant used force to commit a theft because he still intended to get away with the property when he threw down the bag and started throwing punches. (Ibid.)
According to Arenas, the only inference permitted by the evidence is that he abandoned the chips before using force against Francisco, and thus the force or fear element of robbery is not satisfied. Arenas contends that he is not like the defendant in Pham who was still trying to get away with the stolen property when he threw down the bag to fend off an attempt to stop him from doing so. As Arenas characterizes the evidence, "At best, a fight ensued after [Francisco] assumed [Arenas] was not going to pay for the chips."
We reject Arenas's argument because a reasonable juror could infer that when Arenas punched Francisco, he still intended to leave with the chips and that punching Francisco was part of Arenas's plan to complete the theft. Specifically, a reasonable juror could conclude that Arenas punched Francisco because Francisco verbally confronted him about taking the chips and then took a fighting stance, indicating that Francisco was willing to use force to stop Arenas. Under those circumstances, it is reasonable to infer that Arenas decided to punch Francisco to neutralize any possibility that Francisco would try to physically stop him from leaving with the chips. Further, a juror reasonably could infer that Arenas threw down the chips rather than continuing to hold them so that he could use both of his hands while fending off Francisco's attempt to stop him, not because he intended to abandon the chips.
Although Arenas did not end up picking up the chips and leaving with them after Francisco fled across the street, one reasonable explanation for that behavior is that the fight had become more serious than Arenas had intended, as he had caused Francisco's face to bleed, and at least two separate drivers had witnessed the altercation as they passed by. From Arenas's own testimony, the jurors knew that Arenas eventually fled the scene because he was on probation and was concerned about the consequences of having contact with the police. Based on those facts, a reasonable juror could infer that Arenas did not abandon his intent to get away with the chips until after he punched Francisco and he realized that avoiding the consequences of being caught by the police were more important than leaving the scene with the chips.
In sum, we conclude that substantial evidence supports a finding that at the time Arenas punched Francisco, he had not yet abandoned his intent to leave with the chips and therefore used force in accomplishing the intended theft. B. The Trial Court Did Not Err in Failing to Instruct on Grand Theft as a Lesser Included Offense to Robbery
With respect to the robbery count, the trial court instructed the jury on the lesser included offense of petty theft. However, Arenas argues that the trial court prejudicially erred by not also instructing, sua sponte, on grand theft from the person of another (§ 487, subd. (c)) as another lesser included offense of robbery.
"California law has long provided that even absent a request, and over any party's objection, a trial court must instruct a criminal jury on any lesser offense 'necessarily included' in the charged offense, if there is substantial evidence that only the lesser crime was committed. This venerable instructional rule ensures that the jury may consider all supportable crimes necessarily included within the charge itself, thus encouraging the most accurate verdict permitted by the pleadings and the evidence." (People v. Birks (1998) 19 Cal.4th 108, 112.) "[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support." (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) "We independently review a trial court's failure to instruct on a lesser included offense." (People v. Cook (2006) 39 Cal.4th 566, 596.)
Courts "have applied two tests in determining whether an uncharged offense is necessarily included within a charged offense: the 'elements' test and the 'accusatory pleading' test. Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former." (People v. Reed (2006) 38 Cal.4th 1224, 1227-1228.)
The People argue that, in this case, grand theft from the person is not a lesser included offense of robbery under either the elements or the accusatory pleading test. However, we need not and do not decide that issue. As we will explain, even if grand theft from the person is a lesser included offense of robbery, the evidence does not support such an instruction in this case because of the low value of the property that Arenas took from Francisco.
As defined in section 487, subdivision (c), grand theft from a person occurs "[w]hen the property is taken from the person of another." (§ 487, subd. (c).) The provision does not contain any express requirement that the property taken by the defendant exceed a certain value. However, in 2014, California voters passed Proposition 47, the Safe Neighborhoods and Schools Act. (People v. Morales (2016) 63 Cal.4th 399, 404.) Proposition 47's statutory changes include the addition of section 490.2, which provides: "Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the . . . personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor." (§ 490.2, subd. (a), italics added.) Although Proposition 47 did not expressly modify the statutory language of section 487, subdivision (c), which defines grand theft from the person, it implicitly rewrote it to include a monetary threshold of $950. As our Supreme Court has explained, prior to Proposition 47, "section 487, subdivision (a), already made it grand theft to steal property worth over $950. But various other theft provisions carved out separate categories of grand theft based on the type of property stolen, with either a lower value threshold or no value threshold at all. These are the provisions that Proposition 47 modified by inserting a $950 threshold." (People v. Romanowski (2017) 2 Cal.5th 903, 908 (Romanowski).) For instance, prior to the passage of Proposition 47, "[s]ection 487 . . . made it 'grand theft' to steal automobiles, as well [as] to steal 'from the person of another.' (§ 487, subds. (c)-(d).) These forms of theft previously required no evidence of the value of the stolen property. Now they do." (Romanowski, at p. 911, italics added.) "[A]fter the passage of Proposition 47, 'obtaining any property by theft' constitutes petty theft if the stolen property is worth less than $950." (Id. at p. 908, italics added.)
We reject Arenas's contention that Proposition 47 merely changed the punishment for grand theft from the person to misdemeanor punishment if the value of property was less than $950, but that a defendant could still be convicted of the crime of grand theft from the person if an amount less than $950 was involved. Our Supreme Court made clear in Romanowski, supra, 2 Cal.5th at page 908, that "after the passage of Proposition 47, 'obtaining any property by theft' constitutes petty theft if the stolen property is worth less than $950." (Italics added.) Grand theft from the person now requires "evidence of the value of the stolen property." (Romanowski, at p. 911.)
In sum, as our Supreme Court has made clear, after Proposition 47, the crime of grand theft from the person requires that the value of the property taken exceed $950. Here, the undisputed evidence at trial established that the property Arenas took from Francisco did not exceed $950. Instead, Arenas grabbed a few bags of chips, which normally sell for 80 cents each, as Arenas stated during his testimony.
Because "the court is not obliged to instruct on theories that have no such evidentiary support" (Breverman, supra, 19 Cal.4th at p. 162), the trial court was not required to instruct on grand theft from the person as a lesser included offense to robbery in this case. Instead, due to the low value of the property at issue, the jury was properly instructed solely on petty theft as a lesser included offense. C. The Trial Court Did Not Err in Denying the Motion to Sever the Trial on the Charge of Attempting to Prevent or Dissuade a Witness from Testifying from the Other Two Counts
Prior to trial, Arenas filed a motion requesting that the trial court sever the trial on the charge of attempting to prevent or dissuade a witness from testifying (count 3) from the charges of robbery (count 1) and making a criminal threat (count 2). Arenas argued that the motion to sever should be granted because "the alleged charges of intimidation of a witness and the robbery and criminal threats charges occurred in two unrelated incidents that took place two whole months apart," and further that there was no " 'common element of sufficient substantial importance' in the offenses." Arenas also contended that he would be prejudiced by having all of the counts tried together because "if a jury hears testimony from an alleged victim that he was robbed and threatened with bodily harm by Mr. Arenas and then hears testimony from the same alleged victim that on a different day Mr. Arenas threatened him again in open court, the jury will impermissibly conclude that he must be guilty of all of the charges, and if not all, then most certainly Counts Two and Three." Moreover, according to Arenas, the charge of attempting to prevent or dissuade a witness from testifying was much weaker than the other two counts, because there was no reporter's transcript of what he said to Francisco at the preliminary hearing, as it was in Spanish. As a result, "[t]he only use that consolidating these cases has is creating a stronger case for the prosecution to ensure a guilty conviction." The People opposed the motion, arguing among other things that the evidence on all of the counts was cross-admissible and pointing out that efficiency would be served by trying the counts together because Francisco would be a trial witness for all of the counts, and he was coming from out of the country to testify.
The trial court denied the motion stating, "I don't see this as bootstrapping a weaker claim. I think Mr. Arenas was warned not to say things in the preliminary examination. He certainly had a lawyer. He was warned by the court. There were words that were spoken. I understand the exact translation wasn't given. The gist was certainly given, that it was threats, and as I said, with the other comments that you made, I don't consider this a weak case, to tell you the truth. And I believe that there is a good chance those comments are going to come in one way or the other, which is even a better reason . . . not to sever the charge. We do have a witness, one—well, a witness who was the alleged victim of all the crimes that were charged that's coming in from out of the country. Having so, just the judicial economy part, adding a charge that [is] constituted of the—of Mr. Arenas's comments in open court to the same alleged victim is not going to take up time. I don't find it to be a weaker case such that the people are bringing it in just to think they have a better chance now than if I would sever it."
Arenas contends that the trial court erred in not granting the motion to sever. As we understand Arenas's argument, he contends both that (1) count 3 was improperly joined with count 1 and 2 in the accusatory pleading; and (2) even if the counts were properly joined when charging them, it was prejudicial to try them together. We consider each argument in turn.
1. The Counts Were Properly Joined in a Single Accusatory Pleading
The joinder of counts in a single accusatory pleading is governed by section 954, which provides that "[a]n accusatory pleading may charge two or more different offenses connected together in their commission, . . . or two or more different offenses of the same class of crimes or offenses, under separate counts . . . ." (§ 954, italics added.) By permitting joinder of offenses "connected together in their commission the " 'statute permits the joinder of different offenses, even though they do not relate to the same transaction or event, if there is a common element of substantial importance in their commission, for the joinder prevents repetition of evidence and saves time and expense to the state as well as to the defendant.' " (People v. Armstrong (2016) 1 Cal.5th 432, 455.) "[T]he Legislature intended a very broad test for joinder in employing the language ' "connected together in their commission[.]" ' " (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1217.) "The law prefers trying charged offenses together because doing so ordinarily promotes efficiency." (People v. Anderson (2018) 5 Cal.5th 372, 387.) Offenses may be found to be " 'connected together in their commission' . . . even though 'the offenses charged "do not relate to the same transaction and were committed at different times and places . . . against different victims.' ' " (Alcala, at p. 1218, italics omitted.)
Here, we agree with the People that all of the counts were connected together in their commission because they share two common elements of substantial importance. First, they were committed against the same victim, Francisco. Second, the preliminary hearing at which the conduct giving rise to count 3 took place was a preliminary hearing at which Francisco was describing the crimes charged in count 1 and count 2. Accordingly, we conclude that all of the counts were properly joined in this case pursuant to section 954.
2. The Trial Court Did Not Abuse Its Discretion in Declining to Sever the Trial on Count 3
Having concluded that all of the counts were properly joined in a single accusatory pleading, the next issue is whether the trial court should have severed count 3 for the purpose of trial.
"Where joinder is proper under section 954, '[t]he burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.' [Citation] In determining whether a court abused its discretion in declining to sever properly joined charges, we first consider 'the cross-admissibility of the evidence in hypothetical separate trials.' [Citation] If the evidence is cross-admissible, then this 'is normally sufficient to dispel any suggestion of prejudice and to justify a trial court's refusal to sever properly joined charges.' [Citation] If not, then we also consider '(1) whether some of the charges are particularly likely to inflame the jury against the defendant; (2) whether a weak case has been joined with a strong case or another weak case so that the totality of the evidence may alter the outcome as to some or all of the charges; or (3) whether one of the charges (but not another) is a capital offense, or the joinder of the charges converts the matter into a capital case.' " (People v. Gomez (2018) 6 Cal.5th 243, 275-276 (Gomez).)
We review the trial court's order denying severance for an abuse of discretion. (Gomez, supra, 6 Cal.5th at p. 275.) "A defendant, to establish error in a trial court's ruling declining to sever properly joined charges, must make a ' "clear showing of prejudice to establish that the trial court abused its discretion . . . ." ' [Citation] A trial court's denial of a motion to sever properly joined charged offenses amounts to a prejudicial abuse of discretion only if that ruling ' " ' " 'falls outside the bounds of reason.' " ' " ' " (People v. Soper (2009) 45 Cal.4th 759, 774.)
As our Supreme Court has repeatedly held, "[c]ross-admissibility suffices to negate prejudice" in denying a motion to sever. (People v. Memro (1995) 11 Cal.4th 786, 850.) Here, we conclude that the trial court was within its discretion to deny the motion to sever because the evidence to support counts 1 and 2 was cross-admissible with the evidence to support count 3. When considering whether cross-admissibility of evidence supports a ruling denying a motion to sever, " '[t]he issue of cross-admissibility "is not cross-admissibility of the charged offenses but rather the admissibility of relevant evidence" that tends to prove a disputed fact. . . .' Thus . . . ' "complete (or so-called two-way) cross-admissibility is not required. In other words, it may be sufficient, for example, if evidence underlying charge 'B' is admissible in the trial of charge 'A'—even though evidence underlying charge 'A' may not be similarly admissible in the trial of charge 'B.' " ' " (People v. Capistrano (2014) 59 Cal.4th 830, 849.)
On a motion for severance, the defendant bears the burden of showing that evidence would not have been cross-admissible in a separate trial. (People v. Hartsch (2010) 49 Cal.4th 472, 494.) Arenas cannot carry that burden here. The evidence central to proving the charge of attempting to prevent or dissuade a witness from testifying in count 3 was witness testimony showing that Arenas yelled at Francisco at the preliminary hearing relating to the charges alleged in counts 1 and 2, saying things such as "You're going to pay," "I'm going to get my revenge." That evidence would also have been admissible in a separate trial on counts 1 and 2 because it tended to show Arenas's consciousness of guilt for committing counts 1 and 2. (People v. Pinholster (1992) 1 Cal.4th 865, 945 [evidence that the defendant made a threatening phone call to a trial witness was admissible to show consciousness of guilt]; People v. Slocum (1975) 52 Cal.App.3d 867, 887 ["A threat made by a defendant against a prospective prosecution witness whom he expects to testify against him, with the apparent intention of intimidating the witness, is proper evidence; efforts of an accused to suppress testimony against himself indicate a consciousness of guilt."].) Therefore, the trial court properly denied the motion to sever on the ground of cross-admissibility of the evidence relating to count 3 because that evidence showed Arenas's consciousness of guilt for counts 1 and 2. (See People v. Merriman (2014) 60 Cal.4th 1, 45 [the trial court properly denied a motion to sever charges of witness dissuasion from the underlying charges about which the witnesses testified at a grand jury proceeding because the evidence supporting the witness dissuasion charges "would have been cross-admissible in a separate trial on all of the charges . . . to show defendant's consciousness of guilt"].) D. There Is No Support in the Record for Arenas's Contention that the Trial Court Did Not Understand Its Discretion to Strike the Five-Year Enhancements for Arenas's Prior Serious Felony Convictions
The trial court imposed two consecutive five-year prison term enhancements under section 667, subdivision (a) based on Arenas's admission that he incurred two prior serious felony convictions.
Sentencing took place on April 22, 2019. Several months prior, on January 1, 2019, Senate Bill 1393 amended section 1385 by deleting subdivision (b), which previously stated: "This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667." Arenas contends that the trial court may not have been aware of the change in law that gave it discretion to strike the five-year enhancements for his prior serious felony convictions. Arenas argues that we should therefore remand this matter to allow the court to exercise its discretion.
"Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) Here, however, the record contains no indication that the trial court was unaware of its discretion to strike the five-year enhancements for his prior serious felony convictions. " 'The general rule is that a trial court is presumed to have been aware of and followed the applicable law.' . . . This 'presumption of regularity of judicial exercises of discretion appl[ies] to sentencing issues.' " (People v. Valenti (2016) 243 Cal.App.4th 1140, 1178-1179, citation omitted.) Moreover, the trial court's brief comment at the sentencing hearing regarding the imposition of the five-year enhancements lends no support to Arenas's claim that the trial court was unaware of its discretion. The trial court simply said, "And then I am imposing both five-year enhancements for an additional 10 years."
In sum, we reject Arenas's contention that the trial court was unaware of its discretion to strike the two five-year enhancements for his prior serious felonies, and therefore remand is not warranted on that basis. E. The Matter Must Be Remanded for Resentencing Because the One-Year Enhancement for the Prior Prison Term is No Longer Valid
In their respondent's brief, the People point out that this matter must be remanded for resentencing based on a statutory amendment that became effective after Arenas was sentenced and after Arenas filed his opening brief on appeal.
When Arenas was sentenced in April 2019, the law provided for a one-year enhancement for each separate prior prison term served by the defendant. (Former § 667.5, subd. (b).) Based on that law, the trial court here imposed a consecutive one-year term for one of Arenas's prior prison term convictions.
Although Arenas admitted two prior prison terms, the trial court struck the enhancement for one of the prior prison terms pursuant to People v. Jones (1993) 5 Cal.4th 1142 [prohibiting dual use of prior offenses to impose enhancements].)
Effective January 1, 2020, Senate Bill 136 amended section 667.5, subdivision (b). (Stats. 2019, ch. 590, § 1.) That section now limits one-year prior prison term enhancements to cases where the prior prison term was for a sexually violent offense, as defined in Welfare and Institutions Code section 6600, subdivision (b). It is undisputed that Arenas's prior offenses were not sexually violent offenses. Accordingly, Arenas is no longer within the class of offenders who are eligible for the additional one-year prior prison term enhancement under section 667.5, subdivision (b).
As the People acknowledge, because Arenas's judgment is not yet final, Arenas is entitled to the benefit of the change in the law. (People v. Jennings (2019) 42 Cal.App.5th 664, 682; see also In re Estrada (1965) 63 Cal.2d 740.) Accordingly, the matter will be remanded to the trial court with directions that the trial court strike the prior prison term enhancement and resentence Arenas. (People v. Keene (2019) 43 Cal.App.5th 861, 865; People v. Buycks (2018) 5 Cal.5th 857, 893 ["when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.' "].)
DISPOSITION
The sentence is vacated, and the trial court is ordered to strike the one-year prior prison term enhancement imposed under section 667.5, subdivision (b) and to resentence Arenas. Following resentencing the court shall forward an amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
IRION, J. WE CONCUR: AARON, Acting P. J. DATO, J.