Opinion
B298365
08-12-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL MCKINNEY, Defendant and Appellant.
Linda L. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Allison H. Chung, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA470204) APPEAL from an order of the Superior Court of Los Angeles County, Craig J. Mitchell, Judge. Affirmed. Linda L. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Allison H. Chung, Deputy Attorney General, for Plaintiff and Respondent.
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The jury found defendant and appellant Michael McKinney guilty of misdemeanor criminal threats against a male victim (Penal Code, § 422, subd. (a) [count 1]), and felony criminal threats (§ 422, subd. (a) [count 2]), and assault by means of force likely to produce great bodily injury against a female victim (§ 245, subd. (a)(4) [count 3]).
All further references are to the Penal Code unless otherwise indicated.
The trial court found true the allegations that, as to all three counts, McKinney had sustained three prior serious and/or violent felony convictions within the meaning of the three strikes law (§§ 667, subd. (b)-(i) & 1170.12 (a)-(d)), and three prior serious felony convictions within the meaning of section 667, subdivision (a)(1). The court struck two of the strike convictions and sentenced McKinney to an aggregate term of 11 years. The court imposed the middle term of three years in count 3, doubled to six years pursuant to the three strikes law, plus a consecutive five years for the prior serious felony conviction under section 667, subdivision (a)(1). It imposed a concurrent sentence of two years in count 2, and a concurrent sentence of 364 days in county jail in count 1.
On appeal, McKinney argues that the trial court erred by (1) imposing the two-year concurrent sentence in count 2, which should have been stayed pursuant to section 654, and (2) imposing the five-year serious prior felony enhancement (§ 667, subd. (a)(1)), in connection with count 3, which is not a serious felony. McKinney further contends that the trial court was not aware of its discretion to strike the prior serious felony conviction enhancement (§ 667, subd. (a)(1)) pursuant to Senate Bill No. 1393 (Sen. Bill No. 1393 (2017-2018 Reg. Sess.) § 1 (Senate Bill 1393)). He requests that the case be remanded for the court to consider whether to exercise its discretion to strike the enhancement.
The People respond that the trial court's implied finding that McKinney harbored separate intents and objectives in counts 2 and 3 is supported by substantial evidence and does not constitute multiple punishment under section 654. The People agree that the trial court erred in imposing the section 667, subdivision (a)(1) enhancement in connection with count 3, but argue that the case should be remanded for the trial court to impose the enhancement in connection with count 2, which is a qualifying serious prior felony conviction. Additionally, the People contend that the trial court must impose a consecutive sentence in count 2, because section 667, subdivision (a)(1) requires the court to impose the five-year enhancement and the term for the current serious felony to which it is attached consecutively. The People assert that McKinney forfeited his argument that the trial court had discretion to strike the five-year enhancement under section 667, subdivision (a)(1) by failing to raise it below.
The enhancement was charged on the basis that count 2 qualified a serious felony.
We affirm the trial court's judgment.
FACTS
The female victim lived at the Highland Park Guest Home for People with Disabilities. On the morning of July 7, 2018, she exited the building to get breakfast across the street. McKinney was seated outside on the first step of the building's landing and the male victim was sitting on a chair on the landing. The female victim asked McKinney to let her pass. She said, "You're not allowed here. . . . You got to go." McKinney became very angry and punched her twice in the face with a closed fist. The force of the "hard" punches caused the female victim to drop all of the items she was carrying.
The male victim jumped up to stop the fight, grabbed McKinney, and pushed him down the stairs. McKinney kept trying to come back up the stairs, but the male victim pushed him back down. The men began cursing at each other, and McKinney finally walked away. McKinney threatened to obtain a gun and kill the male victim.
After the male victim intervened, the female victim started to cross the street. McKinney yelled that she should go back to Mexico, that he was going to get his friends "to come hit [her]," and that he was going to get a pistol and kill her. McKinney repeated these threats 10 times.
The female victim suffered from pain on the left side of her face and cheek area for about three weeks after this incident.
DISCUSSION
Multiple Punishment Under Section 654
McKinney contends that the trial court erred when it imposed punishment in counts 2 and 3, because the two acts were part of an indivisible course of conduct and committed pursuant to a single objective. McKinney argues that he first lashed out at the female victim physically, and then continued to do so verbally, in one indivisible course of conduct, while entertaining a single objective. The People counter that substantial evidence supports the trial court's implied finding that McKinney had separate objectives for each offense. McKinney's contention has no merit.
Legal Principles
"'In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. "In California, a single act or course of conduct by a defendant can lead to convictions 'of any number of the offenses charged.' [Citations.]" (People v. Montoya (2004) 33 Cal.4th 1031, 1034.) Section 954 generally permits multiple conviction. Section 654 is its counterpart concerning punishment. It prohibits multiple punishment for the same "act or omission." When section 954 permits multiple conviction, but section 654 prohibits multiple punishment, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited. [Citations.]' [Citation.]" (People v. Sloan (2007) 42 Cal.4th 110, 116.)
Application of section 654's prohibition against multiple punishment falls into two general categories. The first category—not present here—arises when a single act or omission violates two provisions of the Penal Code. In the second category of section 654 issues, the "statute bars multiple punishment not only for a single criminal act but for a single indivisible course of conduct in which the defendant had only one criminal intent or objective." (People v. Moseley (2008) 164 Cal.App.4th 1598, 1603.) McKinney relies on this latter principle in his appeal.
"Our case law has found multiple criminal objectives to be a predicate for multiple punishment only in circumstances that involve, or arguably involve, multiple acts." (People v. Mesa (2012) 54 Cal.4th 191, 199.) "The initial inquiry in any section 654 application is to ascertain the defendant's objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." (People v. Beamon (1973) 8 Cal.3d 625, 639.)
"Intent and objective are factual questions for the trial court, which must find evidence to support the existence of a separate intent and objective for each sentenced offense." (People v. Jackson (2016) 1 Cal.5th 269, 354. (Jackson)) However, "[t]he purpose behind section 654 is 'to insure that a defendant's punishment will be commensurate with his culpability. [Citation.]' [Citation.]" (People v. Trotter (1992) 7 Cal.App.4th 363, 367-368, fn. omitted.) Where the defendant's conduct becomes "more egregious with each successive [act]" and each act "pose[s] a separate and distinct risk to [the victim or victims]," "and [the acts] were separated by periods of time during which reflection was possible," courts have held that section 654 did not apply. (Id. at p. 368.)
The temporal proximity of two offenses is insufficient by itself to establish that they were incidental to a single objective. (Jackson, supra, 1 Cal.5th at p. 354.) Objectives may be separate when "the objectives were either (1) consecutive even if similar or (2) different even if simultaneous." (People v. Britt (2004) 32 Cal.4th 944, 952; see also People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212.) Section 654 "cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense." (People v. Nguyen (1988) 204 Cal.App.3d 181, 191.)
"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." (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312 (Hutchins).) "When a trial court sentences a defendant to separate terms without making an express finding the defendant entertained separate objectives, the trial court is deemed to have made an implied finding each offense had a separate objective." (People v. Islas (2012) 210 Cal.App.4th 116, 129.) "'"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. [Citation.]' [Citation.]" [Citation.]' (Hutchins, supra, 90 Cal.App.4th at pp. 1312-1313.)" (People v. Tarris (2009) 180 Cal.App.4th 612, 627.)
Analysis
Here, the trial court imposed a concurrent term in count 2, which implies a finding that section 654 was not a bar to punishment in that count—if section 654 were implicated, the court would have stayed the sentence. Substantial evidence supports the trial court's implied finding that McKinney acted with a separate objective and intent when he assaulted the female victim than he did when he threatened to kill her. The evidence demonstrated that McKinney repeatedly punched the female victim. Only after the male victim intervened did McKinney threaten to obtain a gun and kill the female victim. Clearly, McKinney committed two separate acts: physically assaulting the female victim, which ended when the male victim came to her aid, and then threatening to kill her. Substantial evidence also supports the trial court's conclusion that McKinney had distinct objectives when committing the offenses. The court could reasonably infer that McKinney assaulted the female victim intending to inflict physical harm, but threatened to kill her intending to either inflict psychological harm or prevent her from reporting him to authorities. These separate objectives were independent of, and not merely incidental to, each other. Further, McKinney's threat to kill the female victim occurred after the physical assault was complete. McKinney had the opportunity to reflect after the male victim prevented him from continuing to punch the female victim, and he could have simply allowed her to walk away. Instead, he threatened her. Substantial evidence supports the trial court's implied findings that the assault and the criminal threat involved separate intents and objectives, such that punishment was not barred by section 654 in either count.
"'Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.' (People v. Perez (1979) 23 Cal.3d 545, 549-550, fn. 3.)" (People v. Hester (2000) 22 Cal.4th 290, 295.)
Prior Serious Felony Enhancement
In the opening brief, McKinney argues that the five-year serious felony conviction enhancement is unauthorized and must be stricken, because count 3, the principal count for assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4)), is a non-serious offense, and is therefore not a proper basis for imposition of a section 667, subdivision (a)(1) enhancement.
The People argue that striking the five-year enhancement is not appropriate, because although count 3 is not an enumerated serious felony, count 2, felony criminal threats (§ 422, subd. (a)), is a qualifying serious felony under sections 667, subdivision (a)(1) and 1192.7, subdivision (c)(38). The People urge us to remand the matter to the trial court to impose the enhancement in connection with count 2. The People further contend that section 667, subdivision (a)(1) requires the terms for the current serious felony and the enhancement to be imposed consecutively. They assert that the matter must be remanded for the trial court to impose the five-year enhancement in connection with count 2, and to impose the sentence in count 2 consecutively to both count 3 and the enhancement.
In his reply, McKinney argues that the trial court should be ordered to attach the section 667, subdivision (a)(1) enhancement to count 2 rather than count 3, but to leave the sentence otherwise intact. McKinney asserts that because the two crimes were committed on the same occasion and arise from the same set of operative facts, the trial court was permitted to impose the term in count 2 concurrently with the term in count 3. McKinney argues that, because the court posed a legal aggregate sentence but fashioned it in an unauthorized manner, the court is required to impose a sentence that is no greater than the original sentence.
We conclude that remand is unnecessary because the trial court did not commit sentencing error.
Proceedings
At the sentencing hearing, the trial court pronounced sentence as follows:
"Mr. McKinney will serve an aggregate term of 11 years in the state prison. The court is selecting count 3 as the principal term for purposes of sentencing. I will impose the mid-term of three years. Given the one strike that the Court is using for purposes of sentencing, that will be doubled to a six-year term.
"The Court, additionally, will be imposing one 667 (a) (1) prior in case 87-346-1 for a conviction of first degree robbery, that conviction date being March 8, 1985. And again, that is within the meaning of Penal Code section 667 (a) (1).
"With respect to count 2, the court will impose two years to run concurrent.
"With respect to count 1, the court will impose 364 days in the county jail to run concurrent."
Analysis
In People v. Sasser (2015) 61 Cal.4th 1 (Sasser), the Supreme Court explained that whether a serious felony enhancement attaches to a specific count depends upon the sentencing scheme under which it is imposed. If the punishment imposed for an offense under the three strikes law is an indeterminate term, the serious felony enhancement applies to the individual count, because in those instances, "the Three Strikes law 'generally discloses an intent to use the fact of recidivism to separately increase the sentence imposed for each new offense,' . . . . [Citation.]" (Id. at p. 12.) When a defendant is sentenced under the Uniform Determinate Sentencing Act (Stats. 1976, ch. 1139, p. 5061) (DSL), however, the nature of the enhancement is the primary consideration. (Id. at p. 10.) There are two species of enhancements: "'(1) those which go to the nature of the offender; and (2) those which go to the nature of the offense.' ([People v.] Tassell [(1984) 36 Cal.3d 77,] 90.) Offense-related enhancements, such as those for use of a weapon or infliction of great bodily injury, may be added to any count to which they apply. But enhancements for prior convictions go to the nature of the offender, not the offense, and thus 'have nothing to do with particular counts.' (Ibid.)" (Sasser, supra, at p. 10.) Sasser held that the enhancement imposed under section 667, subdivision (a)(1) goes to the nature of the offender; therefore, it is an enhancement that applies to the determinate term as a whole rather than attaching to a particular count. (Id. at pp. 10-11.) Sasser further held that second-strike defendants (like McKinney), who receive doubled determinate sentences under section 667, subdivision (e)(1), are sentenced under the DSL. (Id. at pp. 13-14.) Thus, the section 667, subdivision (a)(1) enhancement applies only once in connection with the aggregate determinate sentence in a second-strike case, and is not attached to a specific count. (Id. at pp. 10-11, 13-14.)
Here, the trial court imposed a sentence that was consistent with this correct interpretation of the statute. The sentencing transcript indicates that the trial court first designated count 3 as the principal term and doubled the three-year mid-term sentence pursuant to the three strikes law to arrive at a six-year term for that count. Without reference to any specific count, the trial court then stated it was additionally imposing a five-year section 667, subdivision (a)(1) enhancement, to arrive at the aggregate sentence of 11 years. The trial court did not state that it was attaching or otherwise relating the enhancement to a specific count. Consistent with this pronouncement, the trial court listed the enhancement on the abstract of judgment form under the section for "ENHANCEMENTS charged and found to be true for PRIOR CONVICTIONS OR PRISON TERMS," rather than the section for "ENHANCEMENTS . . . TIED TO SPECIFIC COUNTS;" the abstract thus indicates that the enhancement was applied to the total sentence, and not to an individual count. On appeal, neither party disputes that McKinney's conviction for criminal threats under section 422 in count 2 is an enumerated qualifying serious felony under sections 667, subdivision (a)(1) and 1192.7, subdivision (c)(38), and therefore provides a proper basis for the enhancement. As shown, there is no error arising from the fact that the trial court did not link the enhancement to a specific count. To the contrary, the trial court's method for calculating the aggregate sentence was legally correct, and must be affirmed.
Although the minute order, dated May 29, 2019, indicates that the prior felony enhancement was attached to count 3, the trial court's oral pronouncement of judgment, which in this case is correctly reflected in the abstract of judgment, controls. (People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3.)
Senate Bill 1393
McKinney contends that we must remand the matter for the trial court to decide whether to exercise its discretion to strike the five-year section 667, subdivision (a)(1) enhancement under Senate Bill 1393. Senate Bill 1393, signed into law on September 30, 2018, amends sections 667 and 1385 to provide the trial court with discretion to strike five-year enhancements made pursuant to section 667, subdivision (a)(1), in the interests of justice. The new law took effect on January 1, 2019, and therefore applies to McKinney, whose appeal is not yet final.
McKinney asserts that the record demonstrates that the trial court was not aware that it had discretion to strike the section 667, subdivision (a)(1) enhancement. The People respond that McKinney forfeited the argument by failing to raise it below, but that, regardless, the contention must fail because McKinney has not demonstrated affirmative error. We agree with the People.
"'In general, the forfeiture rule applies in the context of sentencing as in other areas of criminal law.' [Citation.]" (People v. Trujillo (2015) 60 Cal.4th 850, 856.) "[In] People v. Scott (1994) 9 Cal.4th 331 (Scott), [our Supreme Court held that] a defendant forfeits on appeal any 'claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' in the absence of objection below. [Citations.]" (People v. Wall (2017) 3 Cal.5th 1048, 1075.)
McKinney concedes that the issue was not raised with the trial court, but attempts to avoid forfeiture by arguing that the trial court did not recognize that it had discretion to strike the five-year enhancement pursuant to Senate Bill 1393, and the "'"governing law at the time . . . afforded scant grounds for objection"'" (People v. Rangel (2016) 62 Cal.4th 1192, 1215 (Rangel), quoting People v. Edwards (2013) 57 Cal.4th 658, 705), which is grounds for excusing forfeiture.
We disagree. McKinney was sentenced on May 10, 2019, over four months after Senate Bill 1393 became effective, on January 1, 2019. The change in the law was not "unforeseen" as McKinney urges—it was complete, and the amendments had been in effect for a significant period of time. Unlike the defendant in Rangel, upon which McKinney relies, the governing law at the time afforded McKinney every reason to object. Because he did not, the issue has been forfeited.
Moreover, as the People point out, McKinney has failed to carry his burden of demonstrating affirmative error. "'"The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. . . . In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."' (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)" (People v. Barrera (1999) 70 Cal.App.4th 541, 554.)
McKinney argues that neither the trial court nor the parties mentioned the trial court's discretion to strike the section 667, subdivision (a)(1) enhancement pursuant to section 1385 and Senate Bill 1393. But McKinney does not cite to authority requiring the court to expressly state it is exercising its discretion, and we do not assume the trial court was unaware of its discretion simply because it failed to explicitly refer to its alternative sentencing choices. (People v. Fuhrman (1997) 16 Cal.4th 930, 933, 944-947; People v. Weddington (2016) 246 Cal.App.4th 468, 492; People v. Valenti (2016) 243 Cal.App.4th 1140, 1178-1179; People v. Bolian (2014) 231 Cal.App.4th 1415, 1421.) Nothing in the record leads us to conclude that the trial court was not aware of its newly-conferred discretion to strike the section 667, subdivision (a)(1) enhancement. Even if McKinney's claim were not forfeited, it fails on the merits.
At the end of his argument regarding Senate Bill 1393, McKinney states that the trial court incorrectly believed that count 3, assault by means of force likely to cause great bodily injury, was a serious and/or violent felony. We fail to see how this assertion is related to the court's awareness of its sentencing discretion pursuant to Senate Bill 1393. To the extent that the nature of count 3 is relevant to the court's sentencing determinations, we have addressed the issue in earlier sections of our opinion.
DISPOSITION
We affirm the trial court's judgment.
MOOR, J.
We concur:
RUBIN, P. J.
BAKER, J.