Opinion
C079303
03-04-2020
THE PEOPLE, Plaintiff and Respondent, v. WALTER CLAYTON MULLINS, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 09F07294)
Following a jury trial, defendant Walter Clayton Mullins was convicted of corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)), making criminal threats (§ 422), and disobeying a court order (§ 166, subd. (a)(4)). The trial court later found true allegations that defendant was convicted in New Jersey for crimes that constitute strike offenses in California, a robbery and aggravated assault with a deadly weapon. (People v. Mullins (Sept. 24, 2014, C066082) [nonpub. opn.].) Defendant appealed from his conviction, and we concluded there was insufficient evidence to establish that his New Jersey robbery conviction qualified as a strike. On remand, the prosecution did not present any additional evidence concerning the New Jersey robbery and that strike allegation was dismissed. Defendant was sentenced to an aggregate term of 14 years four months in prison.
Undesignated statutory references are to the Penal Code.
On appeal defendant contends the trial court erred in imposing consecutive sentences. He argues the trial court should have ordered concurrent sentences under section 667, subdivision (c) or stayed, pursuant to section 654, the sentence on his conviction for making criminal threats. Defendant further contends the trial court failed to calculate properly his custody credits. In supplemental briefing, defendant contends he is entitled to remand to allow the trial court to exercise its discretion to dismiss his serious felony prior conviction enhancement pursuant to Senate Bill No. 1393.
We affirm the judgment but remand the matter with directions to the trial court to properly calculate defendant's presentence custody credits and to consider whether to exercise its discretion to dismiss defendant's serious felony conviction enhancement pursuant to the amendments made in Senate Bill No. 1393.
FACTUAL AND PROCEDURAL BACKGROUND
The Charges and Allegations
Defendant was charged with attempted premeditated murder (Pen. Code, §§ 664/187, subd. (a) & 1192.7, subd. (c) (count 1)), corporal injury on a cohabitant (§ 273.5, subd. (a) (count 2)), criminal threats (§ 422 (count 3)), and disobeying a court order (§ 166, subd. (a)(4) (count 4)). In connection with count 2, it was alleged that defendant inflicted great bodily injury under circumstances involving domestic violence. (§ 12022.7, subd. (e).)
It was further alleged that defendant had prior convictions in the State of New Jersey that qualified as serious felony offenses and strike offenses in California (§§ 667, subd. (a), 1192.7, subd. (c), 667, subds. (b)-(i), & 1170.12). The prior convictions were a 1992 conviction for robbery and a 1997 conviction for "aggravated assault with a weapon."
Trial Evidence
Defendant and the victim began dating in the summer of 2009. Initially homeless, they soon moved into an apartment together, but their relationship was violent. They frequently argued and their fights often became physical.
In September 2009, defendant and his friends were drinking beer outside a homeless mission. The victim stood outside the same mission, talking to another woman, Jessica. Defendant began to pace, telling the victim that it was time to leave. Jessica asked defendant why he was angry with the victim. Defendant responded by hitting Jessica.
A short time later, the victim started to leave the mission on her bicycle. As she did, defendant hit her in the mouth. Police officers who were parked nearby saw the assault, jumped out of their car, and arrested defendant.
A couple of days later, the victim saw defendant in court. Defendant looked at the victim and made a "slashing motion across his throat." The victim asked a mutual friend, Theo, what that meant. Theo told her it meant that her relationship with defendant was over.
A few days later, the victim walked into their apartment after dark. As she put her key in the door, defendant opened the door from inside and grabbed her by the hair, and began dragging her down the apartment hallway toward the bathroom. As defendant dragged the victim backwards by her hair toward the bathroom, defendant told her, "you are dead, you dying tonight" and/or "you gonna die, you gonna die tonight, you dead" and/or "you gonna die. You are dead, bitch, you gonna be a dead bitch" Defendant also punched the victim repeatedly with his fist, striking her in the head and all over her face, including both eyes and her nose. The victim testified that she was "frightened to death. It was very scary." She thought defendant would carry out his threats. She tried to get away from defendant.
Defendant dragged her straight to the bathroom. The victim told defendant she loved him and asked him why he was doing this. Once in the bathroom, defendant started the bath water and threw her into the tub face first. After he threw her into the bathtub, defendant repeatedly punched the victim on her face and head and dunked her head under the water. And at some point while they were in the bathroom, defendant told the victim, "You dying tonight." She tried to fight back by grabbing defendant's arm and trying to get out of the tub but defendant held her face under water. Defendant's threat scared her. Believing she was going to die, the victim fought for her life. However, she finally succumbed. The last thing she remembered about the assault was being under water, her arms stretched out, and giving up.
Meanwhile, the next door neighbor heard the victim screaming, a banging noise and the water splashing. The neighbor called the police. Water from the bathtub also began pouring out of the ceiling vent in the apartment directly below.
The call was received at 1:22 a.m. The police were dispatched six minutes later and arrived at the scene within six minutes of receiving a dispatch. Defendant opened the door to the apartment and was immediately detained. He was dripping wet and spontaneously informed the officers, "She's inside. Go ahead and go get her." One of the officers asked whether she was okay and defendant replied, "Yeah, she's fine. I just beat her ass, that's all." Defendant had a lot of scratches on his chest.
The police found the victim sitting on the bathroom floor, propped up against the side of the bathtub, which was two-thirds filled with water. She appeared "semi-conscious or possibly unconscious." But the officer could see that she was breathing. Both of her eyes were swollen and the right eye was completely shut. She was soaking wet. She was only "partially coherent."
The victim testified that after she lost consciousness, the next thing she remembered was waking up in the hospital. She had sustained a concussion and broken nose. Her face was swollen as big as a basketball, the blood vessels in her eyes were "broke" and her eyes were swollen shut. Portions of her hair had been ripped out, and she had permanent hair loss on areas on both sides of her head. Braids that defendant had pulled out were found on a path near the apartment door, in the hallway and inside of the bathroom.
At the time of trial, the victim was still experiencing headaches and she was suffering anxiety attacks. She was also having a hard time sleeping at night.
Verdicts and Sentencing
The jury found defendant guilty of count 2, corporal injury on a cohabitant, count 3, criminal threats and count 4, disobeying a court order. The jury could not, however, reach a verdict on count 1, attempted willful, deliberate and premeditated murder or the great bodily injury allegation in count 2. The court declared a mistrial as to each. In a bifurcated proceeding, the trial court later found true the two prior strike convictions.
At the sentencing hearing, the prosecution dismissed count 1, attempted murder, and the great bodily injury enhancement allegation in exchange for defendant's withdrawal of his Romero motion. According to defense counsel, the prosecution's agreement to dismiss the attempted murder charge and great bodily injury allegation was conditioned on the defendant being "sentenced to life pursuant to the three strikes law today."
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Defendant was sentenced to an aggregate term of 50 years to life for the two felony convictions pursuant to his two strike convictions (§ 667, subd. (e)(2)(A)(ii); 1170.12(c)(2)(A)(ii)). He received an additional 10 years in state prison for the two prior serious felony convictions (§ 667, subd. (a)). As for the misdemeanor, violation of a restraining order, the court sentenced defendant to 180 days in the county jail. Defendant was ordered to pay various fines and fees and was awarded 396 days of custody credit (344 actual and 52 conduct).
Defendant appealed from his conviction and argued that "the trial court erred in finding his 1992 New Jersey conviction for second degree robbery qualified as a strike under California law." (People v. Mullins, supra, C066082.) We agreed and reversed defendant's conviction "to the extent it [was] based on the trial court's finding that defendant's 1992 New Jersey robbery conviction constituted a strike offense, . . . ." (People v. Mullins, supra, C066082.) We vacated defendant's sentence and remanded the matter to allow the People to "hold a new trial on the prior serious felony allegation," should they elect to do so. (People v. Mullins, supra, C066082.)
On remand, the People sought records from New Jersey regarding the relevant prior serious felony allegation. At the resentencing hearing, however, the People elected not to retry that allegation. Consequently, the trial court found the allegation not true.
The trial court then resentenced defendant to an aggregate term of 14 years four months in state prison, calculated as follows: on count two, corporal injury of a cohabitant, the upper term of four years doubled for the strike to eight years; on count three, making criminal threats, eight months (one-third of the mid-term of two years), doubled to 16 months for a consecutive term of one year four months; plus five years for the prior serious felony conviction that was proven, the 1997 New Jersey conviction for "aggravated assault with a weapon" (§ 667, subd.(a)). The court imposed another 160 days on defendant's misdemeanor conviction for disobeying a court order and ordered that sentence be served consecutively as well.
DISCUSSION
I. Consecutive Sentences under Section 667
Defendant contends the sentence imposed on his conviction for criminal threats should have been ordered concurrent to the term imposed on his conviction for corporal injury to a cohabitant. He relies on section 667 to support his contention. We disagree.
Section 667 provides in pertinent part that "if there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to subdivision (e)." (§ 667, subd. (c)(6), italics added.) Thus, section 667 addresses only those situations where consecutive sentences are mandatory. We agree, consecutive sentences were not mandatory here because defendant committed these crimes "on the same occasion" as that phrase is used in section 667. (§ 667, subd. (c)(6); see also People v. Deloza (1998) 18 Cal.4th 585, 595 [" 'same occasion' refers at least to a close temporal and spatial proximity between the acts underlying the current convictions"].)
Even though the trial court was not required to impose consecutive sentences, it certainly had the discretion to so. (People v. Hendrix (1997) 16 Cal.4th 508, 514.) There is nothing in the record of defendant's resentencing to suggest the trial court misunderstood the scope of its discretion. (Cf. People v. Newsome (1997) 57 Cal.App.4th 902, 913) The court said it was imposing a consecutive sentence on the making criminal threats count "because those threats against [the victim] were separate and [defendant] had separate intent than the actions that caused her traumatic injury." (Italics added) The court did not state that it felt was required to impose consecutive sentences.
This is different from what the trial court said in the first sentencing hearing in 2010. During that hearing, the trial court said, "My belief is that the Court does not have the discretion to run those two felonies concurrent. But even if the Court did have that discretion, based on the facts and circumstances of this case . . . running these concurrent is not warranted, and the aggravating aspects of the facts and circumstances merit these two running consecutive to one another, and I will make that order." (Italics added.) Assuming the trial court was still under the impression it was mandated to impose consecutive sentences in 2015 when it imposed the current sentence -- an assumption not supported by the record of the resentencing hearing -- that error would be harmless, because the trial court had previously announced its intent to exercise any discretion it had to impose consecutive sentences, notwithstanding any authority it had to impose concurrent sentences.
In deciding whether to impose consecutive terms, the trial court is guided by the criteria set forth in California Rules of Court, rule 4.425: "(a) Criteria relating to crimes Facts relating to the crimes, including whether or not:
Further rule references are to the California Rules of Court.
"(1) The crimes and their objectives were predominantly independent of each other;
"(2) The crimes involved separate acts of violence or threats of violence; or
"(3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior. "(b) Other criteria and limitations Any circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences . . ."
Aggravating circumstances that may not be considered in deciding whether to impose a consecutive sentence include: "(1) A fact used to impose the upper term; [¶] (2) A fact used to otherwise enhance the defendant's prison sentence; and [¶] (3) A fact that is an element of the crime." (Rule 4.425(b).)
We review the trial court's decision to impose consecutive sentences for abuse of discretion. (People v. Shaw (2004) 122 Cal.App.4th 453, 458.)
Here, in sentencing defendant to consecutive terms for counts two and three, the court made an express finding that "those threats against [the victim] were separate and had separate intent than those that caused her traumatic injury." That the crimes were separate and had separate intent is a sufficient basis to impose consecutive terms under rule 4.425 and within the court's discretion. (See rule 4.425(a)(1) and (2).)
The New Jersey robbery conviction that proved not to be a California strike is aggravating circumstance the trial court could have considered in imposing a consecutive sentence as it demonstrated the defendant is a serious danger to society. The indictment to which defendant pleaded in New Jersey stated that defendant "in the course of committing a theft, did inflict bodily injury upon" a casino security officer "and/or" a casino employee. (See Rule 4.421(b)(1) [The defendant engaged in violent conduct that indicates a serious danger to society].)
Defendant repeatedly threatened to kill the victim while he was beating her. Though the crimes occurred during the same episode, we agree with the trial court that the crimes were separate and "had separate intent." Defendant's repeated threats to kill the victim evinced an intent to terrorize her, to cause her psychological harm and cause her to be in fear for her life. The act of physically assaulting the victim evinced an intent to inflict physical harm on her and to cause her to suffer physical pain. Accordingly, we find the trial court did not abuse its discretion in sentencing defendant to serve a consecutive term on his conviction for making a criminal threat.
II. Criminal Threats and Section 654
Defendant contends the trial court should have stayed execution of the sentence imposed on his conviction for making criminal threats pursuant to section 654 because his "assaults and threats [were] virtually simultaneous, [thus] his course of conduct was indivisible." We conclude that section 654 does not bar punishment for the criminal threats conviction.
Section 654, subdivision (a) provides in pertinent part that "[a]n 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." Thus, "section 654 proscribes double punishment for multiple violations of the Penal Code based on the 'same act or omission.' " (People v. Siko (1988) 45 Cal.3d 820, 822.) However, "section 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction." (People v. Perez (1979) 23 Cal.3d 545, 551.) "It is [the] defendant's intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible." (People v. Harrison (1989) 48 Cal.3d 321, 335.) "[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once." (Ibid.) "If, on the other hand, defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' " (Ibid., see also People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones).)
"A defendant's criminal objective is 'determined from all of the circumstances'." (People v. Sok (2010) 181 Cal.App.4th 88, 99.) And a trial court's findings, express or implied, are subject to the substantial evidence standard of review. (People v. Atencio (2012) 208 Cal.App.4th 1239, 1242; People v. Liu (1996) 46 Cal.App.4th 1119, 1135-1136.) "[T]he trial court . . . is vested with broad latitude in making its determination. [Citations.] . . . We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]" (Jones, supra, 103 Cal.App.4th at p. 1143; accord People v. Vasquez (Jan. 27, 2020, B295698) ___ Cal.App.5th ___ (Vasquez) [in reviewing express or implied section 654 findings, a reviewing court must view the evidence in the light most favorable to the trial court's finding and presume the existence of every fact the trial court could reasonably deduce from the record].)
As noted, during the course of committing the latter offense, defendant made multiple threats to kill the victim. The trial court stated in sentencing defendant to a consecutive term for the criminal threats conviction: "I'm going to order that that run consecutive because those threats against her were separate and had separate intent than the actions that caused her traumatic injury." While the trial court did not expressly relate this finding to section 654 or state an express finding as to what separate intents defendant harbored, this finding is nevertheless pertinent to that provision. And in any event, "[i]n the absence of an explicit ruling by the trial court at sentencing, we infer that the court made the finding appropriate to the sentence it imposed, i.e., either applying section 654 or not applying it." (People v. Mejia (2017) 9 Cal.App.5th 1036, 1045 (Mejia).) Viewing the evidence in a light most favorable to the trial court's express and implied findings, we conclude that substantial evidence supports the trial court's finding. Presuming the existence of every fact that can be reasonably deduced from the evidence (Vasquez, supra, ___ Cal.App.5th ___ ; Jones, supra, 103 Cal.App.4th at p. 1143), we conclude it can be reasonably inferred that defendant threatened the victim to inflict emotional or psychological harm, separate from his purpose to harm her physically.
Here, defendant engaged in separate acts -- threatening and physically assaulting the victim. Threatening the victim did not violate section 273.5, and physically assaulting her did not violate section 422. And even though these crimes were committed as part of a single course of conduct, the evidence supports a finding that defendant had separate objectives in committing these acts which were independent of and not merely incidental to each other. This is not a situation where the threat was merely the method employed to commit some other crime against the victim. (Cf. People v. Louie (2012) 203 Cal.App.4th 388, 399 [single act of threatening the victim was the method employed to attain the objective of dissuading a witness; therefore, defendant could not be punished for both criminal threats and dissuading a witness based on that single act].) Nor is this a situation where defendant's conduct could be said to facilitate the infliction of corporal injury. Indeed, the threats to kill were unnecessary to the physical attack and making them increased the chance that the victim would resist or attempt to escape and thus risked frustration of defendant's plan to physically harm the victim. In this regard, this case is similar to People v. Nelson (1989) 211 Cal.App.3d 634 (Nelson).
Because the jury was unable to reach a verdict on attempted murder, and the evidence on that count was ambiguous, we do not analyze the application of section 654 based on the notion that defendant intended to kill the victim. The evidence suggested defendant removed the victim from the bathtub instead of drowning her until she was dead. As noted ante, she was found sitting up on the floor by the bathtub, whereas the last thing she remembered was giving up while being dunked under the water in the bathtub. She had no recollection of how she got out of the bathtub. Police who found her could see she was breathing, and from this a reasonable inference could be drawn that defendant could see she was breathing as well. As noted, when asked by the responding officers if the victim was okay, defendant replied, "Yeah, she's fine. I just beat her ass, that's all." It took at least 12 minutes for officers to arrive at the scene after the police received the 911 call, and the evidence did not disclose anything that prevented defendant from killing the victim, if he had so intended. Instead, an inference can be drawn that after she stopped struggling, defendant removed the victim from the water and sat her up next to the bathtub. While the evidence does not necessarily support a finding of intent to kill, it is clear that defendant intended to inflict physical injury on the victim.
In Nelson, a case decided by another panel of this court, the defendant and others broke into the victims' home at night, assaulted them and stole their gold and money as part of a preconceived plan to steal from the two victims. (Nelson, supra, 211 Cal.App.3d at pp. 636-637.) The defendant was charged with burglary and two counts of aggravated assault. (Id. at p. 636.) The Nelson court rejected the defendant's section 654 claim based on reasonable inferences it drew from the evidence, concluding that the evidence supported an inference defendant entertained discrete objectives regarding the three crimes for which he was charged, burglary and two counts of aggravated assault. (Id. at p. 638) The court reasoned that "[i]f defendant's only object was to steal the victims' gold and money, he could have accomplished that simply by waiting until they were away to enter their home. A rational plan designed to accomplish theft alone would rely on stealth instead of violence. Confronted by nocturnal intruders with, for all they know, murderous designs, victims are often inclined to fight back, occasionally with the serendipitous consequence that the intended theft of their property is frustrated. Indeed, frustration of theft is such an obvious, inherent risk in the predictable resistance of residents to nocturnal intruders that it strongly suggests defendant and his cohorts were not bent upon thievery alone. On this record, it is reasonable to infer, as we assume the trial judge did, that theft was not the burglars' only object and purpose. Rather, they deliberately chose to enter the [victims] residence while the victims were at home, knowing as they must that their presence reduced the chances of a successful theft, because separate and apart from thievery they intended to inflict physical harm upon the victims. Therefore, defendant is deserving of the more serious punishment without benefit of the mitigating effect of Penal Code section 654." (Id. at pp. 638-639, italics added.)
Thus, Nelson suggests that when a defendant commits crime A, and in the course of doing so commits crime B, a crime that is likely to result in resistance by the victim and frustrate the commission crime A, then it may be reasonably inferred from such circumstances that the defendant had a different intent and object in committing crime B. We are presented with that situation here. Viewing the evidence and the inferences that can be drawn therefrom in a light most favorable to the section 654 finding, defendant's act of repeatedly telling the victim he was going to kill her while he drug her to the bathroom, was likely to result in resistance and attempts to escape. Thus, not only were the threats unnecessary to the commission of the assault, but making them risked frustration of defendant's ultimate purpose of physically harming the victim. This strongly suggests defendant was not bent upon inflicting physical harm alone. (See Nelson, supra, 211 Cal.App.3d at p. 639.)
Threats made during the infliction of physical harm can be punished separately from crimes associated with the physical harm without violating section 654 when the threats are made with a separate criminal objective. In Mejia, the defendant was convicted of torture, spousal rape, spousal abuse and criminal threats. (Mejia, supra, 9 Cal.App.5th at p. 1039.) The trial court imposed a consecutive term of imprisonment on the criminal threats count. (Ibid.) The defendant argued that the consecutive sentence on that count violated section 654. (Ibid.) In rejecting that contention, the Mejia court reasoned, in part, "mentally or emotionally terrorizing the victim by means of threats is an objective separate from the intent to cause extreme physical pain. Accordingly, a reasonable trier of fact could conclude that the criminal threats were in furtherance of a separate criminal objective." (Id. at p. 1047.) In the instant case, the trial court's finding of separate objectives was similarly supported by similar reasonable inferences to be drawn from the evidence.
However, the Mejia court held that the trial court violated section 654 by failing to stay execution of the sentences imposed on the spousal rape and spousal abuse counts, because the conduct underlying those crimes was conduct the prosecutor relied upon to prove torture. (Mejia, supra, 9 Cal.App.5th at pp. 1044-1045 ["although a defendant may be convicted of both torture and of any or all of the underlying acts [citation], section 654 precludes imposition of unstayed sentences for both torture and any of the underlying assaultive offenses upon which the prosecution relies to prove that element"; "because the prosecution relied upon each act of spousal rape and each act of infliction of corporal injury on a spouse as the intentional acts underlying the torture conviction, it is irrelevant whether defendant harbored a single objective or multiple objectives"].)
One "purpose of section 654 is to ensure that a defendant's punishment will be commensurate with his culpability." (People v. Correa (2012) 54 Cal.4th 331, 341.) Prohibiting multiple punishment under the circumstances presented here would not further that purpose. Ensuring that punishment is commensurate with punishment "works both ways. It is just as undesirable to apply the statute to lighten a just punishment as it is to ignore the statute and impose an oppressive sentence." (People v. Monarrez (1998) 66 Cal.App.4th 710, 715.) Defendant victimized the victim emotionally and psychologically by repeatedly threatening her life at the same time he was victimizing her physically. He is clearly more culpable than a person who engages in only one of those two methods of domestic violence victimization. Thus, imposing and executing the sentence on defendant's conviction for making criminal threats is consistent with the purpose of section 654.
The trial court was of the same mind at the original sentencing hearing when it imposed consecutive 25-to-life terms for corporal injury on a cohabitant and criminal threats. The court noted, "it is certainly a more aggravated situation if somebody is being told that they're going to be killed while they are being physically assaulted."
Defendant cites a footnote from People v. Toledo (2001) 26 Cal.4th 221, to support his argument that making criminal threats while inflicting corporal injury on a cohabitant is indivisible under section 654. In its entirety, that footnote says: "For the conviction of assault with a deadly weapon, the [trial] court selected the midterm sentence of three years, doubled the term to six years under the provisions of the 'Three Strikes' law [citation omitted], and added a consecutive five-year sentence under section 667, subdivision (a)(1), on the basis of defendant's prior conviction for assault with a firearm. For the conviction of attempted criminal threat, the court imposed a one-year sentence but stayed the imposition of the sentence pursuant to section 654." (Id. at p. 226, fn. 2.) The Supreme Court did not discuss whether that sentence should have been stayed pursuant to section 654, noting only that it was. (Ibid.) Toledo, therefore, does not support defendant's argument on appeal. "It is axiomatic that cases are not authority for propositions not considered." (People v. Gilbert (1969) 1 Cal.3d 475, 482, fn. 7.)
The principal issue in Toledo was whether there is such a crime as attempted criminal threat in California. (Toledo, supra, 26 Cal.4th at p. 227.) During her trial testimony, the victim in Toledo denied that defendant caused her to be in fear (Toledo, supra, 26 Cal.4th at p. 225), hence the conviction for attempted criminal threats.
Moreover, the facts in Toledo are very different from the facts here. In Toledo, the facts demonstrated that the defendant had only one criminal objective -- to scare the victim. During a domestic violence incident, defendant told the victim, "You know, death is going to become you tonight. I am going to kill you." Soon thereafter, defendant approached the victim while holding scissors above his head. Defendant plunged the scissors at the victim's neck, but stopped inches from her skin. He then told her, "You don't want to die tonight, do you? You're not worth going to jail for." He then walked away. (Id. at p. 225.) Defendant did not injure the victim and made no attempt to injure the victim at that time. Defendant was convicted of attempted criminal threats and assault with a deadly weapon. (Id. at p. 226.)
Later, when the victim tried to return to the apartment, the defendant chased her away and threw an iron at the residence into which she fled. He was charged with a separate count of assault with a deadly weapon for that act, but was found not guilty on that count. (Id. at pp. 225-226.)
The instant case is not like Toledo where a weapon was used to convey a threat resulting in a conviction of assault with a weapon and attempted criminal threats. Here, as we have noted, defendant threatened the victim while he physically assaulted her, and the evidence indicates two separate objectives which were not incidental to one another. Toledo does not help defendant.
Looking at the evidence and inferences to be drawn therefrom in a light most favorable to the trial court's express and implied findings, as we must, we conclude that substantial evidence supports the trial court's finding that the assaultive conduct and threats were committed with separate criminal objectives, and accordingly, the crimes of corporal injury on a cohabitant and criminal threats were punishable separately.
III. Custody Credits
Defendant finally contends the trial court erred in leaving his custody credits "as they were" at the time of the original sentence in September 2010, at which time defendant was entitled to 396 days of custody credit. The abstract of judgment reflects the court's order. Defendant thus asks us to remand the matter and direct the trial court to recalculate defendant's custody credit to account for his time in custody from the original sentencing hearing to his resentencing hearing. The People concede the error and agree with the remedy.
"[W]hen a prison term already in progress is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody." (People v. Buckhalter (2001) 26 Cal.4th 20, 29.) Thus, defendant is entitled to additional presentence custody credits.
IV. Senate Bill No. 1393
In supplemental briefing, defendant contends he is entitled to have the trial court exercise its discretion to dismiss his section 667, subdivision (a) serious felony conviction enhancement pursuant to the amendment to section 1385 made in Senate Bill No. 1393 (2017-2018 Reg. Sess.) The People did not file an opposition brief. Senate Bill No. 1393 is retroactive to cases not final on appeal as of the effective date of the bill. (People v. Garcia (2018) 28 Cal.App.5th 961, 971-974.) The only question is whether remand would be futile. Remand is required unless the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so. (People v. McDaniels (2018) 22 Cal.App.5th 420, 425 [consideration of remand for trial court to exercise its discretion to dismiss a firearms enhancement allegation under Senate Bill 620].)
There is evidence in the record suggesting that the trial court would not exercise its discretion to dismiss the serious felony enhancement. At the original sentencing, the trial court imposed consecutive 25-to-life sentences for corporal injury on a spouse and criminal threats, indicating that if it had discretion to impose concurrent sentences, it would not do so given the circumstances of the case and defendant's criminal background. (See fn. 3, ante.) Then at resentencing, the trial court stated, "I really felt I was doing my job when I gave this guy the rest of his life in state prison." However, since this matter must be remanded to correct credits and since the People did not file opposition and apparently do not oppose remand, we will remand so that the trial court can expressly address whether to dismiss the serious felony enhancement under the amendments made by Senate Bill No. 1393.
DISPOSITION
The matter is remanded to the trial court with directions to calculate and award any presentence custody credit to which defendant is entitled, and to prepare an amended abstract of judgment reflecting defendant's presentence custody credit. The trial court is further directed to consider whether to exercise its discretion to dismiss defendant's serious felony conviction enhancement pursuant to the amendments made by Senate Bill No. 1393. The trial court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
MURRAY, Acting P. J. We concur: /s/_________
DUARTE, J. /s/_________
RENNER, J.