Opinion
C081011
07-25-2018
THE PEOPLE, Plaintiff and Respondent, v. SUKHPAL SINGH GURU, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. STKCRFE20150005651, SF130826A)
A jury convicted defendant Sukhpal Singh Guru of assault with a deadly weapon, to wit, a knife (Pen. Code, § 245, subd. (a)(1); unless otherwise set forth, statutory section references that follow are to the Penal Code; count 2), assault with a deadly weapon, to wit, a crossbow (§ 245, subd. (a)(1); count 3), and criminal threats (§ 422; count 4). In connection with count 4, the jury sustained the allegation that defendant personally used a knife. (§ 12022, subd. (b)(1).) The jury acquitted defendant of negligent discharge of a firearm. (§ 246.3; count 1.)
The trial court denied defendant's request for probation and to reduce the offenses to misdemeanors. The court sentenced defendant to state prison for an aggregate term of five years eight months.
Defendant appeals. He contends (1) the prosecutor committed prejudicial misconduct in allegedly threatening the victim and in closing argument, and if the latter is deemed forfeited, defendant contends defense counsel rendered ineffective assistance in failing to object or request an admonition and (2) the trial court should have stayed (§ 654) sentence on criminal threats with personal use of a knife because the court had imposed sentence for assault with a deadly weapon, to wit, a knife. We agree with defendant's section 654 contention, will modify the judgment accordingly, and remand for resentencing.
FACTS AND PROCEEDINGS
On February 18, 2015, J.M., the victim, called the 911 dispatch operator. Crying, the victim stated, "my boyfriend is trying to kill me. [¶] . . . [¶] [H]e said he's going to burn my house down." When asked to identify her boyfriend, the victim identified defendant.
Stockton Police Officer Nariya Jean and several other officers went to the victim's home and the victim met them at the front door. The victim appeared terrified and was shaking and did not know whether defendant was still inside her home. Officers conducted a protective sweep and found no one inside the victim's home.
Officer Jean interviewed the victim who explained that she and defendant had recently ended their relationship. That day, defendant arrived at her home unexpectedly. She allowed him to enter and he walked straight to her bedroom, sat down, and asked her repeatedly about her activities the previous evening. Defendant asked her to retrieve her gun that he said was located in the garage. She found the gun, emptied the magazine, and hid the gun and magazine in the garage and returned to her bedroom. When she went to the kitchen to obtain a snack for defendant, she heard a gunshot. She returned to her bedroom and found defendant holding a gun. He continued to demand to know about her activities the previous evening. He grabbed the victim by her hair, pulled her by the neck to the floor, obtained a knife that was in the bedroom, held the knife to her face, and threatened, " 'If you mess up, I will gut you.' " He stabbed the wall behind her head, walked away, and then stabbed the wall in another area of the bedroom. He then grabbed a crossbow from the dresser and fired two arrows at the victim, missing her head by a foot. He put the crossbow down and refused to allow her to leave. When he started using her computer, she fled. As she ran away, he threatened to burn her house down.
At trial, the victim explained that she had dated defendant for three or four years and the relationship ended in February 2015. On the date of the incident, she allowed him inside her home to gather his belongings. He became angry and they yelled at one another. Defendant threatened to call the police about her methamphetamine use and to have her children removed from her home. She ran out of the house and called 911. She claimed she had lied to the 911 operator when she reported that defendant was trying to kill her and that he had threatened to burn her house down. She had no memory of defendant stabbing the walls, holding a knife to her face, threatening to cut her open, or firing arrows at her head. She did not remember describing defendant's conduct to the police. She claimed she was under the influence of methamphetamine at the time of the incident. She claimed she no longer used methamphetamine but did not get treatment to end her use, explaining she just stopped using.
The victim's aunt testified that she was present the day the victim called the police. The aunt had seen defendant holding a gun and pacing back and forth inside the victim's bedroom. The aunt left the victim's home and tried calling and texting the victim. Several minutes later, the aunt received a call from the victim who was screaming, "[Defendant is] trying to kill me. He said he was gonna gut me." The victim also said that she had already called the police and was hiding next door under a recreational vehicle. The aunt did not believe the victim was under the influence at the time of the offenses. According to the aunt, the victim drank alcohol but did not use drugs. The aunt explained that she had been asked by the victim not to testify at trial.
DISCUSSION
I
Prosecutorial Misconduct
Defendant contends that during closing argument, the prosecutor made several statements that violated his federal due process rights under the Fifth and Fourteenth Amendments and his right to a fair trial under the Sixth Amendment. He claims the prosecutor stated during closing argument: the jury should convict defendant based on his demeanor at trial; the prosecutor knew the victim was lying about being under the influence of methamphetamine during the incident; defense counsel was lying; and the jurors should act upon their passions to convict defendant.
Anticipating that this court will find one or more of his claims of prosecutorial misconduct to be forfeited, defendant argues defense counsel rendered ineffective assistance in failing to object and/or request that the jury be admonished. Defendant also claims the prosecutor "likely engaged in further prosecutorial error" in "threaten[ing] to put [the victim] in jail until she testified if she refused to testify at the preliminary hearing."
" 'As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.' [Citation.]" (People v. Chatman (2006) 38 Cal.4th 344, 380.) "[A] prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.' [Citation.] A prosecutor's conduct ' "that does not render a criminal trial fundamentally unfair" ' violates California law ' "only if it involves ' "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' " ' [Citation.]" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 110-111 (Coffman).) Reversal for prosecutorial misconduct under state law is not required "unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct." (People v. Crew (2003) 31 Cal.4th 822, 839.)
"A prosecutor engages in misconduct by misstating facts or referring to facts not in evidence, but he or she enjoys wide latitude in commenting on the evidence, including urging the jury to make reasonable inferences and deductions therefrom. [Citation.]" (Coffman, supra, 34 Cal.4th at p. 95.) We review the prosecutor's statements "in the context of the argument as a whole." (People v. Dennis (1998) 17 Cal.4th 468, 522.)
The prosecutor's closing argument covered 18 pages of transcript. He discussed each crime and their elements, the burden of proof, evaluation of a witness's testimony, the type of evidence adduced, what was not evidence such as objections and statements by attorneys, the evidence adduced at trial, the evidence supporting each count, and the verdict forms. The prosecutor's rebuttal covered seven pages, focusing on the evidence and claiming the defense wanted the jury to ignore the evidence, speculate, and make assumptions.
Defendant first takes issue with the prosecutor's comments on the victim's credibility. With respect to the victim's trial testimony that she had been under the influence of methamphetamine and had been awake for days at the time of the incident, the prosecutor made the following statement: "Moreover, she was not up for days and she had not been taking meth. People don't simply stop taking meth. She testified that she was using it regularly and then she just stopped. It doesn't happen. It's not a reasonable thing to say." Defense counsel did not object.
On appeal, defendant argues the prosecutor's statement constituted "unsworn testimony," his personal belief that the victim had lied about her methamphetamine use, and evidence other than that adduced at trial. Defendant has forfeited his claim by failing to object.
Defendant argues defense counsel was incompetent for failing to object as there could be no tactical advantage for failing to do so.
To establish ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-694 ; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) To show prejudice, defendant must show a reasonable probability that he would have received a more favorable result absent counsel's deficient performance. (Strickland, at pp. 693-694; Ledesma, at pp. 217-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694; accord, Ledesma, at p. 218.) We need not discuss whether counsel's performance was deficient, if an ineffective assistance of counsel claim can be rejected on the grounds of lack of prejudice. (In re Fields (1990) 51 Cal.3d 1063, 1079.)
"[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance." (People v. Hillhouse (2002) 27 Cal.4th 469, 502.) "[I]n an extreme case, when misconduct was pervasive, defense counsel had repeatedly but vainly objected to try to curb the misconduct, and the courtroom atmosphere was so poisonous that further objections would have been futile," counsel has been excused "from having to object continually. [Citations.]" (Id. at pp. 501-502.) But such an extreme case is a rarity. (Ibid.)
The prosecutor discussed the victim's story at trial that differed from her 911 call and her statements during her interview with Officer Jean. The prosecutor argued that the victim's recanting trial testimony should not be believed for several reasons: inconsistencies in her trial testimony, her demeanor when she testified, her aunt's eyewitness testimony, the physical evidence, the victim's request that her aunt not testify at trial, the victim's request of law enforcement two days after the incident that she did not want to press charges, her 911 call, her prior statements, as well as her claim about being under the influence at the time of the incident.
The prosecutor then showed the jury the victim's photograph taken the day of the incident and argued: "Here's a picture of [the victim], a picture that supposedly had been taken after she was up for days and was on meth. Look at this picture, use your common sense. She has not been up for days. She is not on meth. This is not the face of someone who has been up for days. This is not the face of someone who is high on meth."
We conclude that the prosecutor's unobjected-to statement when read in context reflects that the prosecutor was commenting upon the victim's credibility in testifying that she was high on methamphetamine, supported his argument with the victim's photograph taken the day of the incident, and asked the jury to use its common sense in evaluating her credibility at trial. The prosecutor did not bolster or vouch for the credibility of the victim based on his personal belief or refer to evidence not adduced at trial. The prosecutor did not commit misconduct in commenting on the victim's credibility that was based on the evidence and reasonable inferences thereon.
We recognize that the prosecutor's statement that "This is not the face of someone who is high on meth" could arguably be taken as a statement to the jury based on his own experience dealing in the justice system with people who are high on methamphetamine. But taken in context, it was argument supplementing his invitation to the jury to use their common sense. In any event, it was well within the defendant's attorney's tactical decision not to object to the argument and underscore or prolong the argument as to the victim's credibility.
Defendant has failed to demonstrate defense counsel's performance was deficient in not objecting to this line of argument.
Defendant next takes issue with the prosecutor's comments on defendant's demeanor at trial. The prosecutor argued: "I am confident that you have been given all of the information that you need to find this defendant guilty beyond a reasonable doubt. He knows he's guilty. And I hope that some of you watched him during trial. He knows he is guilty." Defense counsel objected and the court sustained the objection, instructing the jury that it "is not to consider the defendant's demeanor here in court." The prosecutor continued: "Regardless, tell him that." Defense counsel again objected, claiming it was "borderline, Griff[i]n error." The court overruled defendant's objection.
Defendant is correct that the prosecutor committed misconduct in commenting on defendant's demeanor in the courtroom. A prosecutor's remark on the defendant's demeanor at trial is misconduct where the defendant does not testify because the remark asks the jury to infer criminal conduct from the defendant's behavior or demeanor in the courtroom and infringes on the defendant's right not to testify. (E.g., People v. Boyette (2002) 29 Cal.4th 381, 434.) Nevertheless, based on the overwhelming evidence of his guilt, which he does not challenge, he is not entitled to relief. (Chapman v. California (1967) 386 U.S. 18, 24 ; People v. Watson (1956) 46 Cal.2d 818, 836.) Moreover, defendant objected and the court admonished the jury. The court also instructed the jury that the arguments of counsel were not evidence. We presume the jury followed the admonition and instruction. (People v. Martinez (2010) 47 Cal.4th 911, 957.)
After the court admonished the jury not to consider defendant's in-court demeanor, defendant complains the prosecutor "exacerbated" his error by stating thereafter, "Regardless, tell him that." Defense counsel's objection was based on Griffin error, which the trial court properly overruled since the prosecutor was not commenting on defendant's failure to testify but instead was asking the jury to tell the defendant he was guilty.
Defendant takes issue with the prosecutor's concluding remarks: "Go back there and tell him he's guilty. Go back there and sign the verdict forms and tell him you know he's guilty beyond a reasonable doubt of each count presented by the People." Defendant claims the prosecutor "encouraged the jury to act on its passions and emotions in an almost vengeful way to send a message to [defendant] that he was guilty." Defense counsel did not object. Defendant's misconduct claim is forfeited. We reject defendant's ineffective assistance claim. We disagree with defendant's interpretation of the prosecutor's argument as " 'inflammatory rhetoric,' " which appealed to the jury's emotions. The prosecutor's remarks came at the end of his closing argument, after he had discussed all the evidence and the offenses charged, and asked the jury to find defendant guilty "beyond a reasonable doubt of each count." This was not misconduct and, in any event, defense counsel's performance was not deficient in not objecting.
Defendant asserts that in rebuttal the prosecutor "disparaged defense counsel" in claiming "[d]efense also made up a lot about that she couldn't leave and that is weird because she went to the kitchen and she was walking around . . . ." Defense counsel objected to the language, "made up." The trial court overruled the objection. The prosecutor thereafter argued, "Now, the testimony showed that [the victim] wasn't afraid until the defendant became aggressive. So she was afraid for his safety until he became aggressive with her. So she was free to leave and walk around as she did when he was simply being angry and she was worried about him."
A prosecutor commits misconduct in arguing to the jury that defense counsel does not believe in his client's defense, has fabricated evidence, or is otherwise the villain in the case. (People v. Thompson (1988) 45 Cal.3d 86, 112-113.) "Casting uncalled for aspersions on defense counsel directs attention to largely irrelevant matters and does not constitute comment on the evidence or argument as to inferences to be drawn therefrom." (Id. at p. 112.) The question is whether the prosecutor's comments were on the evidence and weaknesses in the defense case, or on irrelevant matters. (Id. at pp. 112-113.)
The prosecutor's focus was on the evidence, particularly evidence of the victim's fear of defendant, commenting that she started to fear him when he became aggressive, and responding to defense counsel's argument that she did not fear for her personal safety. The comment "made up," when read in context, did not detract from the prosecutor's argument on the evidence and how to view it.
Defendant claims the prosecutor also disparaged defense counsel in arguing: "And [defense counsel] was so kind to put a question mark next to love because not even he could get up here and argue that that is not a motivation here because the testimony and the evidence clearly shows that her motivation to lie was love. She loves him. He is her best friend. She does not want to see him get in trouble. She does not want to press charges." Defense counsel did not object.
Defendant's claim of prosecutorial misconduct is forfeited. Contrary to his claim, an objection would not have been futile, the court having sustained another objection. His ineffective assistance of counsel claim lacks merit as well. The prosecutor's remarks did not disparage counsel because the prosecutor remarked on the evidence, that is, love was a motivation for the victim's trial testimony that differed from her prior statements. Defendant has failed to demonstrate that defense counsel's performance was deficient.
Defendant claims the prosecutor threatened the victim with jail if she refused to testify at the preliminary hearing. Defendant has failed to demonstrate misconduct.
Defendant moved to recuse the prosecutor for misconduct. In his motion, defendant claimed, "if true, [the victim's] assertion is that she was intimidated into testifying at the preliminary hearing under threat of incarceration." Defendant asserted it was prosecutorial misconduct to influence a witness's testimony. Defendant cited Code of Civil Procedure section 1219, subdivision (b), which provides, in relevant part, as follows: "Notwithstanding any other law, a court shall not imprison or otherwise confine or place in custody the victim of a sexual assault or domestic violence crime for contempt if the contempt consists of refusing to testify concerning that sexual assault or domestic violence crime."
In testifying at an Evidence Code section 402 hearing, the victim claimed the prosecutor told her that if she did not testify, then he would put her in jail until she did. The prosecutor argued that the victim could not identify whether the threat was she would be taken into custody if she avoided the subpoena which he argued was permissible or whether the threat was she would be jailed if she refused to testify once on the witness stand which he agreed would be impermissible. (See Code Civ. Proc., § 1219, subd. (b); People v. Cogswell (2010) 48 Cal.4th 467, 477-479.) The prosecutor denied threatening the victim with jail at all in any event, both in writing and orally as an officer of the court. The trial court denied the recusal motion, finding a conflict had not been shown and noting a lack of signed affidavits with competent evidence.
On appeal, defendant asserts the prosecutor "may have" engaged in prosecutorial error, noting the prosecutor did not testify under oath so the only evidence was the victim's testimony that she had been threatened. The victim's explanation of the threat was ambiguous and the prosecutor, as an officer of the court, denied having threatened her. Defendant has failed to demonstrate misconduct.
II
Section 654
The trial court denied probation and sentenced defendant to state prison for five years eight months, that is, the midterm of three years for count 2 (assault with a knife), a consecutive one-third the midterm or one year for count 3 (assault with a crossbow), and a consecutive one-third the midterm or eight months for count 4 (criminal threats) plus a consecutive one-year term for personal use of a knife.
As he argued in the trial court, defendant contends on appeal that the trial court should have stayed sentence on criminal threats and the attached enhancement of personal use of a knife because the court imposed sentence on assault with a deadly weapon, to wit, a knife. Defendant argues the offenses were "based on the same acts" or "constituted an indivisible course of conduct committed over a short time, with the same intent, to frighten his girlfriend into telling him with whom she had been sleeping." We agree that section 654 applied and will remand for resentencing. In view of our agreement that section 654 applied to criminal threats and the attached knife use enhancement, we do not address defendant's alternative argument that the one-year sentence for the knife use enhancement attached to the subordinate sentence for criminal threats should be reduced to one-third the term or four months.
Section 654, subdivision (a) provides, in relevant part, as follows: "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."
" 'It is the singleness of the act and not of the offense that is determinative.' Thus the act of placing a bomb into an automobile to kill the owner may form the basis for a conviction of attempted murder, or assault with intent to kill, or malicious use of explosives. Insofar as only a single act is charged as the basis for the conviction, however, the defendant can be punished only once. [Citation.]" (Neal v. State of California (1960) 55 Cal.2d 11, 19, disapproved on other grounds in People v. Correa (2012) 54 Cal.4th 331, 334.)
"Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an 'act or omission' may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. [Citations.] We first consider if the different crimes were completed by a 'single physical act.' [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act--i.e., a course of conduct--do we then consider whether that course of conduct reflects a single ' "intent and objective" ' or multiple intents and objectives. [Citations.] At step one, courts examine the facts of the case to determine whether multiple convictions are based upon a single physical act. [Citation.] When those facts are undisputed . . . the application of section 654 raises a question of law we review de novo. [Citations.]" (People v. Corpening (2016) 2 Cal.5th 307, 311-312 (Corpening).) "Neither the text nor structure of section 654 resolves when exactly a single act begins or ends, for example, or how to take account of the fact that virtually any given physical action may, in principle, be divided into multiple subsets that each fit the colloquial definition of an 'act.' " (Id. at p. 312.) "Whether a defendant will be found to have committed a single physical act for purposes of section 654 depends on whether some action the defendant is charged with having taken separately completes the actus reus for each of the relevant criminal offenses." (Id. at p. 313.)
"The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them. [Citations.] 'We must "view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence. . . . " . . . ' " (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313.)
The issue here is whether the act of assaulting the victim with a knife and the act of threatening the victim while using a knife constitute a single act or multiple acts, or a course of conduct reflecting a single intent and objective or multiple intents and objectives. First, we examine the facts of the case to determine if there was a single physical act.
The trial court explained that "separate weapons and separate intents with those weapons" made section 654 inapplicable to counts 2 (assault with a knife) and 3 (assault with a crossbow). The court did not state its reasons for imposing sentence for criminal threats with a knife. The better practice is for a trial court to state on the record its reasons to facilitate appellate review. (Corpening, supra, 2 Cal.5th at p. 316, fn. 6.)
Defendant held the knife to the victim's face and uttered the words, " 'If you mess up, I will gut you,' " completing the actus reus for both assault with a deadly weapon, to wit, a knife, and criminal threats with personal use of a knife. These are the acts charged in the information and the acts relied upon by the prosecutor in his closing argument. The use of the knife to assault and to threaten happened to the same victim, at the same location, and at the same time. It was the same act. " 'It is the singleness of the act and not of the offense that is determinative.' " (Neal v. State of California, supra, 55 Cal.2d at p. 19.) Since we conclude there was a single act, we do not reach whether there was a single intent and objective or multiple intents and objectives. (Corpening, supra, 2 Cal.5th at pp. 311-312; see People v. Mitchell (2016) 4 Cal.App.5th 349, 353.)
Section 245, subdivision (a)(1) provides: "Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment." As instructed, the elements were: defendant did an act with a knife that by its nature would directly and probably result in the application of force to a person; he did that act willfully; when he acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and when he acted, he had the present ability to apply force with a knife. (CALCRIM No. 875.)
Section 422, subdivision (a) provides: "Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is 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, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison." As instructed, the elements were: defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to the victim; he made the threat orally; he intended that his statement be understood as a threat; the threat was so clear, immediate, unconditional, and specific that it communicated to the victim a serious intention and the immediate prospect that the threat would be carried out; the threat actually caused the victim to be in sustained fear for her own safety; and the victim's fear was reasonable under the circumstances. (CALCRIM No. 1300.)
Section 12022, subdivision (b)(1) provides: "A person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense." The jury was instructed that defendant personally used a knife if he intentionally displayed the weapon in a menacing manner or hit the victim with the knife. (CALCRIM No. 3145.)
We reject the People's claim that "[a]fter completing the criminal threat, [defendant] engaged in separate act of gratuitous violence when he pulled the knife away from [the victim's] face and violently stabbed the knife into a nearby wall." Such act was not charged or cited by the prosecutor in closing argument to be the act supporting either offense. In discussing the evidence, such act of stabbing the wall was mentioned by the prosecutor but not the act supporting either offense but instead as a continuation of or bolstering both offenses. Stabbing the wall behind the victim's head communicated to the victim a serious intention and immediate prospect that the threat to gut her would be carried out. Moreover, the prosecutor did not elect to rely on the act of stabbing the wall behind the victim's head as an additional assault offense, and the jury was not given a unanimity instruction.
DISPOSITION
The judgment is modified, staying the sentence for criminal threats and the attached enhancement. (§ 654.) The matter is remanded to the trial court for resentencing. " 'When a trial court resentences a defendant after reversal on appeal, it clearly has discretion to increase or decrease elements of the sentence (although there may be limits on its ability to increase the aggregate sentence). [Citation.]' [Citation.]" (People v. Mitchell, supra, 4 Cal.App.5th at p. 355.) As modified, the judgment is affirmed.
HULL, J.
We concur:
BLEASE, Acting P. J.
BUTZ, J.