Opinion
A155835
08-12-2020
THE PEOPLE, Plaintiff and Respondent, v. HAROLD MALBROUGH, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. SCN229017)
Harold Malbrough appeals from a judgment entered after a jury found him guilty of second-degree robbery, assault with a deadly weapon, and felony hit-and-run. The trial court found true a number of enhancements, and it also found Malbrough had a prior conviction and two prior burglaries. He was sentenced to 24 years in state prison.
On appeal, Malbrough contends there was no substantial evidence to support the assault conviction, the true finding for the dangerous weapon enhancement, or the hit-and-run conviction. He also contends the trial court erred when it admitted statements made by the victim in a 911 call and in interviews with responding police officers recorded by body cameras. Among several alleged sentencing errors, Malbrough asserts the one-year enhancement imposed for a prior prison term must be stricken pursuant to Senate Bill 136, and the case remanded for resentencing.
We reject Malbrough's challenges to the sufficiency of the evidence and admission of the victim's recorded statements. We agree that the one-year prior prison term enhancement must be stricken and the case must be remanded for resentencing. In light of our remand for resentencing, we will not address the remaining sentencing issues which are either moot or which may be raised by Malbrough before the trial court on remand. In all other respects, the judgment is affirmed.
BACKGROUND
Alan K. was working at the front counter of a store on San Bruno Avenue in San Francisco when a man entered and looked around. Alan considered him "kinda weird" and "kinda suspicious" because he was covering part of his face with his hand. As Alan moved to protect his laptop that was on the counter, the man quickly grabbed for it. After a brief tug of war, the man ran out with the laptop. Alan chased him as he made his way toward a white car being driven by someone else and got in the front passenger seat.
Alan continued to run after them, and he collided with the white car. Exactly how the contact occurred was disputed. At some point, Alan was on the hood of the car and ended up lying on the street. The car drove onto the freeway and fled.
Within a minute of the collision, a bystander called 911. The bystander told dispatch, "I saw a guy get hit by um, some guy getting on the freeway. . . The man is [unintelligible] now, but he was really down. He got hit, he got knocked down and a white - kind of like a uh, Japanese car . . ." He said, "[T]he guy who was driving the car, man, well he was speeding, man . . . he made a turn and then uh, the guy went spinning, man!" He added, "Yeah, man, he got he got hit good man, he got hit good, though. I seen him spin!" At trial, this bystander said he did not see the actual collision. He testified, "Well, what I saw was, like, this car was going pretty speedily towards the entry to the freeway. It stopped all of a sudden, but then this other guy . . . was running towards the vehicle. And then I could see his head, but then the car went around the man. I don't know if it hit him or not, but it seemed as though it could have hit him. But when the car left, the guy was on the floor, flat on the floor, facedown."
Alan, picked himself up, got back to his store, and also called 911. He reported, "It happened about five minutes ago. Ah, is - this is a retail location. And uh, I was working at the front counter, suddenly a customer - a person, walk in and grab my - uh, the laptop that I'm working on." He explained he went outside to chase the thief, and saw the man who grabbed his laptop get into a white car being driven by someone else. Alan said, "I was in front of his - of the car, and uh, he . . . used his car to hit me." Dispatch asked, "[I]t was a vehicle that hit you, correct?" Alan responded, "Yes." Dispatch also asked Alan if he needed an ambulance. Alan replied, "I think so."
Police and paramedics arrived at the store. San Francisco Police Department Officer Nikolaos Hawes, one of the officers who met with Alan, activated his body camera. Alan recounted to officers how the man grabbed his laptop and ran outside. As a paramedic examined him, Alan described chasing the thief, getting in front of the car the thief got into, and being struck and knocked to the ground by the car which then left on the freeway. When an officer confirmed, "So you got in front of the car?" Alan responded, "Yeah." Alan also confirmed for the officers that the car drove forward with him in front of it and that he ended up on the hood of the car and rolled off. Generally, Alan thought he was not seriously injured, but he felt "kinda faint" and his chest and shoulder hurt. The paramedic anticipated he would feel pain later on and suggested his discomfort was temporarily masked by adrenaline.
After the interview, Alan was taken to the hospital where he underwent four hours of surgery. His medical records showed that he suffered a traumatic brain injury.
That evening, a white car pulled into the Enterprise Rent-a-Car return lane at the Sacramento Airport. As was common practice, an Enterprise return agent entered the white car's license plate number into her handheld device to retrieve the customer information and process the return. The returning customer told the agent he still had items in the car he needed to remove. So, he drove away and came back minutes later. This time, the customer told another Enterprise agent he had reported the car's license plates stolen. The first agent saw that the license plate with the number she had just entered was no longer on the car.
Enterprise reported to the Sacramento County Sheriff's Department that a car had been returned with the license plates removed after just coming in with them in place. Sherriff's Deputy Brian Templeton obtained a copy of the rental agreement for the car, a white Toyota Camry. According to the agreement, the renter at the time of the return was Harold Malbrough. Deputy Templeton also entered the car's license plate number into a database of stolen vehicles.
Deputy Templeton contacted Malbrough. Malbrough told him the missing license plates had been stolen. When the deputy told Malbrough there was video of the car entering the return lot with its license plates intact, Malbrough said he must have accidentally removed them. When the deputy explained removing plates was a crime and they needed to be returned, Malbrough said he would do so the following morning.
Meanwhile, SFPD was gathering video evidence from the crime scene. Investigators secured recordings from cameras along San Bruno Avenue. Some of them captured the moment Alan and a white Toyota Camry collided. The white Toyota Camry was "quickly driv[ing] from the curb and [going] northbound and tak[ing] a right westbound onto the . . . southbound [freeway] ramp" and Alan was "by the front of the vehicle . . . go[ing] over the hood of the vehicle and land[ing] in traffic at the . . . on-ramp to the freeway." From there, investigators focused their attention on the white Toyota Camry. Video from a passing Muni bus captured the car's license plate. It was later traced to the rental car Malbrough returned at the Sacramento airport. The driver of the white Camry also matched to the person who returned the car in Sacramento and was identified as Malbrough. Other videos recorded in the area prior to the incident showed Malbrough getting in and out of the Camry near Alan's store.
The Toyota Camry was impounded and moved to the SFPD crime scene investigation unit, where it was processed. An officer found a plastic bag of sunflower seeds in its center console. Fingerprints lifted from the bag matched Malbrough's.
Malbrough was charged with attempted murder (Pen. Code, § 664/187, subd. (a), count 1); second degree robbery (§ 211, count 2); assault with a deadly weapon, (§ 245, subd. (a)(1), count 3); and hit-and-run (Veh. Code § 20001, subd. (a), count 4). The attempted murder and robbery charges included enhancement allegations that each crime was committed by use of a deadly weapon (§ 12022, subd. (b)(1)) and inflicted great bodily injury (§ 12022.7, subd. (b)). The assault charge also included an enhancement allegation for great bodily injury (§ 12022.7, subd. (b)). The hit-and-run charge included an enhancement allegation that Malbrough caused permanent, serious injury (Veh. Code § 20001, subd. (b)(2)). Three enhancement allegations were also charged for prior convictions: (1) an enhancement under section 667, subdivisions (d) and (e), and section 1170.12, subdivisions (b) and (c), for a prior robbery conviction; (2) a serious felony enhancement under section 667, subdivision (a)(1) relating to the prior robbery conviction; and (3) an enhancement under section 667.5, subdivision (b), related to a prior prison term Malbrough served for two prior burglary convictions.
All statutory references are to the Penal Code unless otherwise stated.
At trial, the prosecutor presented witnesses from the SFPD, Sacramento County Sheriff's Department, Enterprise and the bystander who called 911. They testified to the events described above. Alan's younger brother also testified. He explained that Alan was in the intensive care unit for months after the incident, and eight months after the accident was still unable to walk or talk and it was not clear that Alan could understand his brother when he visited. Medical records indicated Alan was in a persistent vegetative state. Accordingly, Alan could not and did not testify at trial.
The defense called two witnesses. The first was another bystander present at the scene. This bystander saw "some man running and jump into [sic] a car like he was Superman, and he did a dive and jumped on top of the car." After the man fell off the car following the collision, the witness did not see the car stop or anyone from the car get out to see if the person was okay, and it continued to drive on the freeway. The second defense witness was Paul Endo, the president of a litigation graphics firm retained by the defense. He enhanced one of the videos played to the jury. In the enhanced video, two men approach a white car. The first man appears to run towards the car and enters the front passenger seat. The second man appears a few seconds later, also running toward the car. He jumps onto the hood of the car, as it begins driving away. The white car accelerates into a right turn, throwing the man across the hood and into the street. Malbrough did not testify.
The jury acquitted Malbrough of attempted murder but convicted on all other counts. The jury also found great bodily injury, use of a deadly weapon, and permanent serious injury enhancements attached to counts 2 through 4 to be true. The prior conviction allegations were tried to the court. The court found all the prior convictions to be true. Malbrough was sentenced to 24 years in state prison. He appeals.
DISCUSSION
A. Substantial Evidence Review
" 'In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (People v. Golde (2008) 163 Cal.App.4th 101, 108 (Golde).) We do not resolve credibility issues or evidentiary conflicts. Instead, we presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. (People v. Boyer (2006) 38 Cal.4th 412, 480.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
1. The Assault Conviction
Malbrough argues there was insufficient evidence to support his conviction for assault with a deadly weapon.
Section 245 subdivision (a) 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." (§ 245, subd. (a)(1).) "[A]ssault requires only a general criminal intent and not a specific intent to cause injury." (People v. Williams (2001) 26 Cal.4th 779, 782 (Williams).) "In order to convict on assault, the jury need only find that the defendant (1) willfully committed an act which by its nature would probably and directly result in the application of physical force against another and (2) was aware of facts that would lead a reasonable person to realize this direct and probable consequence of his or her act. [Citation.] The crime does not require any intent to cause an application of physical force, or a substantial certainty that an application of force will result." (People v. Aznavoleh (2012) 210 Cal.App.4th 1181, 1186-1187)
Malbrough was the driver of the car which Alan said he ran in front of and hit him. The bystander who made the 911 call said, in reference to Alan, the "guy got hit . . . got knocked down" by the car that sped onto the freeway. While this evidence was enough to sustain the Malbrough's conviction for assault with a deadly weapon (see People v. Avila (2009) 46 Cal.4th 680, 703 [" 'testimony of a single witness is sufficient for the proof of any fact' "]), there is more supporting evidence. Malbrough was close to a freeway on-ramp. His passenger had just stolen a laptop and was being pursued by the victim, who landed on the hood of the car. Even so, Malbrough drove onto the freeway on-ramp. A jury could reasonably conclude that Malbrough saw Alan on the hood of the car and continued driving in order to avoid confrontation or capture. A jury could also reasonably conclude that driving the getaway car onto a freeway would throw Alan from the car and cause him to hit the ground or some other object. There was sufficient evidence to support the conviction.
Malbrough does not dispute the evidence showing "he drove the car that struck and injured [Alan]" and even acknowledges he may have been driving recklessly. Instead, he asserts the "evidence . . . does not support a finding of proof beyond a reasonable doubt that [he] had a or [the] general intent to commit a battery." Emphasizing the video evidence that showed Alan ran towards the car from behind and jumped onto the hood, Malbrough contends, "This is not a situation where a jury could reasonably find beyond a reasonable doubt that Malbrough intended to commit an act that would naturally and probably lead to a battery." We are not persuaded. Assault does not require a "subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (Williams, supra, 26 Cal.4th at p. 790; see also Golde, supra, 163 Cal.App.4th at p. 108 [" 'The mens rea [for assault] is established upon proof the defendant willfully committed an act that by its nature will probably and directly result in injury to another.' "].) Malbrough intentionally and willfully drove the getaway car once his passenger entered it with the laptop. A jury could reasonably conclude Malbrough saw Alan on the car's hood and drove to dislodge him in order to escape capture. This was sufficient evidence of an intentional act to support conviction.
People v. Jones (1981) 123 Cal.App.3d 83 (Jones) does not compel a different result. Jones was convicted of assault with a deadly weapon after colliding with another vehicle during a high-speed police chase. (Id. at p. 86.) The court concluded the evidence was insufficient to support the conviction because there was no evidence from which the jury could have inferred Jones deliberately drove into the other car. (Id. at p. 96.) Jones was decided before the Supreme Court's decision in Williams, where the court explained the mental state for assault turns on the defendant's knowledge of facts showing that his or her act by its nature is likely to result in the application of force. (Williams, supra, 26 Cal.4th at pp. 788, 790.) As we have explained, a defendant need not intend to commit a battery, or even be subjectively aware of the risk that a battery might occur. (Ibid.) He needs only be aware of what he is doing. (Aznavoleh, supra, 210 Cal.App.4th at p. 1190.) And here, as we have explained, there was evidence that Malbrough was aware of what he was doing.
2. The Deadly Weapon Enhancement
Malbrough contends there was insufficient evidence to support the deadly weapon enhancement to the robbery charge.
Section 12022, subdivision (b) states: "A person who personally uses a deadly or dangerous weapon in the commission of 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." (§ 12022, subd. (b).) "In order to find 'true' a section 12022(b) allegation, a fact finder must conclude that, during the crime or attempted crime, the defendant himself or herself intentionally displayed in a menacing manner or struck someone with an instrument capable of inflicting great bodily injury or death." (People v. Wims (1995) 10 Cal.4th 293, 302, overruled on another ground in People v. Sengpadychith (2001) 26 Cal.4th 316, 325-326..)
There was substantial evidence to support the enhancement. Evidence showed that the deadly weapon, the white Toyota, was an essential part of the robbery, as it provided the means to escape. Evidence also showed Malbrough struck Alan with the car or threw him from the car's hood in the course of the getaway. A juror could have reasonably concluded Malbrough drove the car into Alan or used it to remove Alan so that he and his companion could escape with the laptop.
Malbrough contends there is insufficient evidence he "had the specific intent to hit [Alan] with the car." We disagree. Under the circumstances, a juror could have reasonably concluded Malbrough wanted to escape and intentionally used the car as a weapon against Alan to accomplish his objective.
3. The Hit-and-Run Conviction
Malbrough argues that if we conclude there was sufficient evidence for his assault conviction and the deadly weapon enhancement, we must conclude the evidence was insufficient to support the hit-and-run conviction.
Vehicle Code section 20001, subdivision (a) states: "The driver of a vehicle involved in an accident resulting in injury to a person, other than himself or herself, or in the death of a person shall immediately stop the vehicle at the scene of the accident" and shall fulfill certain requirements. (§ Veh. Code, § 20001, subd. (a).) The essential elements of a violation of this provision are that the defendant: "(1) knew he or she was involved in an accident; (2) knew damage resulted from the accident; and (3) knowingly and willfully left the scene of the accident (4) without giving the required information to the other driver(s)." (People v. Carbajal (1995) 10 Cal.4th 1114, 1123, fn. 10.)
According to Malbrough, our affirmance of the assault conviction and the deadly weapon enhancement means he did not hit Alan accidentally. Therefore, he could not have left the scene of an "accident" within the meaning of Vehicle Code section 20001.
A similar argument was considered and rejected in People v. Jimenez (1992) 11 Cal.App.4th 1611 (Jimenez), disapproved on another ground in People v. Kobrin (1995) 11 Cal.4th 416, 419, 427, fn. 7. There, the defendant was convicted of assault and leaving the scene of an accident. (Jimenez, supra, 11 Cal.App.4th at p. 1618. ) Since the jury's verdict on the assault count established that the defendant intended to cause the collision, he argued "since his conduct was intentional, he was not involved in an 'accident' within the meaning of Vehicle Code section 20001, subdivision (a)" and asserted "that the use of the word 'accident' in the statute excludes events which arise out of intentional acts." (Id. at p. 1625.) The Jimenez court adopted a broad definition of "accident," explaining the legislative purpose of section 20001 was to prevent drivers from leaving the scene of an injury-producing "event" or "occurrence" without presenting proper identification and ensuring that necessary assistance would be provided without regard to the responsibility of the driver. (Id. at pp. 1625-1626.) The Jimenez court concluded it would be wholly inconsistent with that purpose to apply a definition of "accident" that excluded intentional hit-and-run. The court reasoned, "To excuse those drivers who intended to cause an injury-producing occurrence from a duty imposed on all other involved drivers would produce the absurd result that drivers with the highest level of fault for the injury-producing occurrence could shirk their responsibilities with impunity while those drivers who were merely negligent or without fault were burdened with the statute's requirements. Because such a construction of the statute would be absurd, unreasonable and contrary to the law's purpose, we hold that Vehicle Code section 20001 applies to all drivers of vehicles involved in injury-producing events," whether or not the incident was intentionally caused. (Id. at p. 1626.)
We reject Malbrough's similar argument and conclude the term "accident" in Vehicle Code section 20001 encompasses his intentional conduct. There was substantial evidence to support all elements of the violation. Based on that evidence, a jury could reasonably conclude Malbrough knew he was involved in a situation that caused a man to be thrown from his car, and he drove away without stopping.
B. Admission of Alan's Recorded Statements
1. Alan's 911 Call
Before trial, the prosecution moved in limine to admit Alan's 911 call into evidence. Malbrough moved to exclude it. The court ruled it was admissible as a spontaneous declaration under Evidence Code section 1240. At trial, the 911 call was played to the jury and admitted into evidence over Malbrough's objection.
Malbrough argues the trial court abused its discretion when it admitted the call because it was inadmissible hearsay, and did not qualify as a spontaneous declaration exception to the rule against hearsay.
Evidence Code section 1240 sets forth a hearsay exception for spontaneous statements. It states: "Evidence of a statement is not made inadmissible by the hearsay rule if . . . purports to narrate, describe, explain an act, condition, or event perceived by declarant . . . and [w]as made spontaneously while declarant was under stress of excitement caused by such perception." (Evid. Code, § 1240.) " 'To be admissible, "(1) there must be some occurrence startling enough to produce . . . nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstances of the occurrence preceding it." ' " (People v. Sanchez (2019) 7 Cal.5th 14, 39.)
"Whether an out-of-court statement meets the statutory requirements for admission as a spontaneous statement is generally a question of fact for the trial court, the determination of which involves an exercise of the court's discretion. [Citation.] We will uphold the trial court's determination of facts when they are supported by substantial evidence and review for abuse of discretion its decision to admit evidence under the spontaneous statement exception." (People v. Merriman (2014) 60 Cal.4th 1, 65.)
There was no error in the admission of the 911 call. The content of the call easily met the statutory requirements for admission as spontaneous statements. Alan was robbed, chased the thief, and was thrown off the getaway car. There is no doubt these events were the type of startling occurrences that produce nervous excitement and gave Alan no time to reflect before speaking with 911 dispatch. He called approximately five minutes after he was thrown from the car and landed on the street. The call directly related to the theft, chase, and collision. The trial court reasonably concluded Alan had not regained his reflective powers when he spoke with dispatch and his utterances were spontaneous.
Malbrough says the trial court abused its discretion when it admitted the recording because Alan was calm, stoic, and not in an excited state on the 911 call. Even if this reasonably described Alan's demeanor, it does not mean he lacked "nervous excitement" needed for the exception. "The fact that [a] declarant has become calm enough to speak coherently . . . is not inconsistent with spontaneity." (People v. Poggi (1988) 45 Cal.3d 306, 319.) Alan had just been robbed and thrown from a car after pursuing a thief. He called 911 almost immediately when he returned to the store. There was sufficient evidence to support the trial court's conclusion that he experienced a startling situation, and his near contemporaneous report of those events to 911 made his statements reliable.
2. Alan's Recorded Statements to Police
The prosecution also moved in limine to admit the body camera recording of Alan's statements by police officers responding to his 911 call. Malbrough moved to exclude these statements. The court admitted them. At trial, the recording was played for the jury.
As with the 911 call, Malbrough argues the trial court abused its discretion in finding Alan's statements on the body camera recording were within the spontaneous declaration exception in Evidence Code section 1240. For the same reasons given above, the trial court's decision was a sound exercise of its discretion. Although Alan's interview by police occurred later than the 911 call, and further in time from the collision, the trial court could reasonably conclude Alan's nervous excitement persisted such that his statements were still spontaneous and unreflecting. Such a conclusion is underscored by the fact that the recording was taken in Alan's store shortly after the collision when officers responded to the 911 call. Also, Alan said he felt faint and a paramedic observed that his adrenaline was flowing. The court did not err in finding Alan was still under the stress of excitement and in admitting the body camera recording of his statements to officers.
Malbrough also argues the trial court's admission of Alan's recorded statements to police violated his Sixth Amendment rights. The Sixth Amendment bars the admission of out-of-court testimonial statements of a witness who does not appear at trial unless the witness is unavailable and the defendant had a prior opportunity for cross-examination. (Crawford v. Washington (2004) 541 U.S. 36, 59, 68.) In Davis v. Washington (2006) 547 U.S. 813, the Supreme Court explained that statements to police are testimonial "when the circumstances objectively indicate that there is no such ongoing emergency, and the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Id. at p. 822.) In contrast, "[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistances to meet an ongoing emergency." (Ibid.) We review claims implicating a defendant's constitutional right to confrontation de novo. (People v. Sweeney (2009) 175 Cal.App.4th 210, 221.)
Malbrough contends Alan's recorded statements "were testimonial and therefore inadmissible under the Sixth Amendment" because he was "answering primarily investigatory questions." Yes and no. The approximately twenty-minute discussion covered some investigatory terrain, such as the circumstances of the robbery, what was stolen, the laptop's value. But there was also an ongoing emergency. The recording occurred shortly after he collided with Malbrough's getaway car and in response to a 911 call. The assailants were still at large. In Alan's store, where the recording began, officers were coming in and out of the recording and a paramedic was asking about pain and the nature of the collision to determine his injuries before moving him onto an ambulance. In the ambulance, where most of the recording took place, another paramedic physically examined Alan and asked about his pain while an officer continued to ask questions. The body camera recording consisted of both testimonial and nontestimonial statements.
However, we need not parse his statements or determine the primary purpose of police questioning. Even if we assume all of Alan's recorded statements were testimonial and the trial court erred in admitting them, any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) In making this determination, we ask whether it is "clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." (Neder v. United States (1999) 527 U.S. 1, 18.) Here, the jury would have made such a finding. Malbrough claims, "If [Alan]'s recorded statements about the theft of his computer were properly excluded, the jury would not have heard any evidence indicating that Malbrough or his alleged accomplice had an intent to steal. This would have precluded a rational jury from finding Malbrough committed robbery directly . . . or through . . . an aiding-and-abetting theory." But the 911 call contained evidence of intent. Alan told 911 dispatch that someone had grabbed his laptop, ran out of the store, and got into a white car that fled. Malbrough also claims "[r]emoving [Alan's] recorded statements from the jury's consideration would have further weakened the prosecution's attempt to show Malbrough had the necessary general intent to commit battery or the specific intent to use a deadly weapon." Not so. Even without Alan's recorded statements to police, the 911 call and the video recordings provided substantial evidence to support the convictions. It is clear beyond a reasonable doubt that any rational jury would have convicted Malbrough on these counts absent the error.
C. Malbrough is Subject to Full Resentencing on Remand
Malbrough's 24-year sentence was calculated as follows: (1) for robbery (§ 211, count 2), the upper term of five years, doubled to 10 years pursuant to section 1170.12 due to Malbrough's prior strike; (2) a consecutive five years for inflicting great bodily injury (§ 12022.7, subd. (a)); (3) another consecutive year for using a deadly weapon (§ 12022, subd. (b)(1)); (4) five consecutive years for the prior serious felony conviction (§ 667, subd. (a)); (5) a consecutive year for the prior prison term (§ 667.5, subd. (b)); and (6) for leaving the scene of an accident (Veh. Code, § 20001, subd. (a), count 4), a consecutive year, doubled to two years due to Malbrough's prior strike. Pursuant to section 654, the trial court stayed the sentence for assault with a deadly weapon (count 3).
In supplemental briefing, Malbrough contends that, following the enactment of Senate Bill 136 (SB 136), his one-year prior prison term enhancement pursuant to section 667.5, subdivision (b) must be stricken because his prior burglary convictions no longer qualify for the enhancement.
SB 136, which became effective on January 1, 2020, amended section 667.5, subdivision (b) to limit one-year prior prison enhancements to prior convictions for certain sexually violent offenses. (See People v. Lopez (2019) 42 Cal.App.5th 337, 340-341.)
The parties agree that Malbrough's prior convictions no longer qualify under section 667.5, subdivision (b), so his prior prison term enhancement must be stricken. We agree. (See People v. Jennings (2019) 42 Cal.App.5th 664, 667, 681.) Accordingly, we order Malbrough's one one-year prior prison term enhancement imposed pursuant to section 667.5, subdivision (b) stricken.
Since SB 136 became effective while this case was pending on appeal, the parties agree that it should be remanded for resentencing.
Malbrough raises several additional sentencing issues in his opening brief. First, he argues Senate Bill 1393, which also became effective during the pendency of this appeal, authorizes the trial court to exercise its discretion on remand to strike the five-year enhancement imposed on him for a prior serious felony conviction. Second, he says the trial court's decision to impose consecutive sentences for the hit-and-run and robbery sentences was error, and the hit-and-run sentence should have been stayed. Third, he claims the $400 "emat fee", or emergency medical Air Transportation Act fine, is unauthorized, conflicts with the trial court's oral pronouncement, and must be amended. Fourth, he says the trial court erroneously failed to state the statutory bases for all the fines it imposed. Fifth, since the court did not hold a hearing on his ability to pay certain fines and fees, Malbrough argues they were wrongly imposed and should be either reserved or stayed until the trial court determines his ability to pay under People v. Dueñas (2019) 30 Cal.App.5th 1157. Sixth, he argues the court improperly considered certain aggravating factors when it imposed the upper term for robbery, and that his trial counsel was ineffective for failing to object. The People also identify a sentencing issue, specifically, that the sentencing on the assault conviction was erroneous because the court did not impose a full term before staying the execution of that portion of the sentence.
Since the parties deem resentencing appropriate, and the People concede other sentencing issues need to be addressed, they can be done so in a full resentencing. Accordingly, we shall remand for full resentencing so the trial court can exercise its sentencing discretion anew. In light of our remand for full resentencing, we shall not address any of these additional sentencing issues, which are either moot or can raise before the trial court on remand. (See People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 ["A court conducting a full resentencing also may, as appropriate, revisit sentencing choices such as a decision to stay a sentence [citation], to impose an upper term instead of a middle term [citation], or to impose concurrent instead of consecutive sentences [citation]."])
DISPOSITION
Malbrough's section 667.5, subdivision (b) prior prison term enhancement is stricken, and the matter is remanded to the trial court for full resentencing. Following resentencing, the trial court is directed to prepare an amended abstract of judgment, and to forward certified copies of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
Siggins, P.J. WE CONCUR: /s/_________
Petrou, J. /s/_________
Jackson, J.