Opinion
D076289
07-09-2020
THE PEOPLE, Plaintiff and Respondent, v. EDWARD RAY NETT, Defendant and Appellant.
Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN367143) APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Sentence vacated and remanded with directions, and in all other respects affirmed. Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Edward Ray Nett guilty of one count of first degree burglary (Pen. Code, §§ 459/460, subd. (a)); one count of assault with a deadly weapon (§ 245, subd. (a)(1)); two counts of making a criminal threat (§ 422); one count of false imprisonment of a hostage (§ 210.5); one count of animal cruelty (§ 597, subd. (a)); and one count of harming or interfering with a law enforcement dog (§ 600, subd. (b)). The jury also found that Nett personally used a dangerous and deadly weapon (a knife) in connection with several of the counts (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)). The trial court found that Nett incurred a prison prior (§ 667.5, subd. (b)), a serious felony prior (§ 667, subd. (a)(1)), and a prior strike (§§ 667, subds. (b)-(i), 1170.12, & 668). In a separate phase of trial, the same jury found that Nett was sane when he committed the crimes. The trial court sentenced Nett to prison for a term of 21 years, eight months.
Unless otherwise indicated all further statutory references are to the Penal Code.
On appeal, Nett raises challenges to aspects of the guilt phase, the sanity phase, and the trial court's imposition of sentence. With respect to the sanity phase, Nett contends substantial evidence does not support the jury's verdict that he was sane when he committed the crimes. With respect to the guilt phase, Nett contends (1) insufficient evidence supports the burglary conviction; and (2) the trial court prejudicially erred in instructing the jury on one of the underlying felonies Nett allegedly intended during the burglary. With respect to sentencing, Nett contends (1) the punishment on certain of the counts should have been stayed pursuant to section 654; and (2) due to a change in the law since Nett was sentenced, the one-year term that the trial court imposed based on Nett's prior prison term pursuant to former section 667.5, subdivision (b) must be stricken.
We conclude that Nett's contentions arising from the sanity phase and the guilt phase lack merit. However, with respect to sentencing, we conclude that (1) pursuant to section 654 the trial court should have stayed the punishment for assault with a deadly weapon (count 3), and harming a law enforcement dog (count 9); and (2) as the parties agree, the one-year term that the trial court imposed based on Nett's prior prison term pursuant to former section 667.5, subdivision (b) must be stricken. Accordingly, we vacate the sentence and remand with directions for the trial court to resentence Nett, including a stay of the sentence on count 3 and count 9, and striking the one-year enhancement imposed for Nett's prior prison term. In all other respects the judgment is affirmed.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Rancho Santa Fe Incident
At approximately 5:00 a.m. on December 3, 2016, Nett was sitting at the top of a stairway that led up to two studio apartments in the business district of Rancho Santa Fe. A woman who lived in one of the apartments was awakened by a scraping sound on the walls and then heard Nett angrily talking to himself outside her door. At one point, Nett slammed on the outer wall to the apartment and said, "I need a hot shower. I'm going to kill you." The woman alerted the Rancho Santa Fe Association security service and called 911. It was later discovered that the scraping sound was probably Nett carving the words "Rape" and "Your Dead" [sic] on the stairwell wall.
A deputy sheriff and a security guard from the Rancho Santa Fe Association arrived on the scene and spoke to Nett from the bottom of the stairs. Nett, who was at the top of the stairs, yelled insults and profanity at them. When asked for his name, Nett said, "My name is slit your throat" and made a gesture of slitting his throat with his finger. As the deputy continued trying to establish a dialogue, Nett began making threats of bodily harm and death to the deputy. Nett also pretended to talk into an imaginary radio earpiece, stating things such as "Take him out" and "We're clear for lethal force. Send them in boys."
The deputy called for backup and several other officers arrived, including a canine handler and his dog. During the course of approximately the next half an hour, Nett continued his bizarre and threatening behavior. Among other things, Nett repeatedly said that the deputies had been raping him and told them to stop. He threatened to kill the deputies and slit their throats. He said that he had explosives and that there was a tripwire at the bottom of the stairs. Nett said he had a grenade and pretended to throw one, and more than once he pretended to point and shoot a non-existent gun. Nett asked for the FBI and CIA. A few times, Nett walked halfway down the stairs while puffing out his chest or acting like he was holding a gun, but then retreated back to the top of the stairs. One time when Nett came part of the way down the stairs, the deputies saw that Nett was armed with a knife that he had tucked behind his forearm, and they began yelling for him to drop the knife. Nett replied that he would stab the deputies in the face with the knife and told them to drop their guns.
The deputies developed a plan to subdue Nett by shooting non-lethal pepperball rounds up the stairs and then deploying the canine. When the deputies warned Nett that they were planning to deploy the canine if he did not put down his knife and come down the stairs, Nett said, "Send him. I don't care about your pooch."
The deputies shot pepperball rounds up the stairs and then sent up the canine. At the same time, Nett started kicking the door to one of the studio apartments, which deputies later learned was occupied by a man, R.A., who did not know Nett.
We refer to R.A. by his initials to protect his privacy.
The deputies moved up the stairs and saw that Nett had kicked a hole in the bottom portion of R.A.'s door and had crawled inside the apartment. The deputies also saw that the canine had been stabbed in the snout and was bleeding.
The canine's wound required veterinary care and several days of recovery.
Nett pushed a piece of furniture in front of the door inside the apartment to try to block the deputies from entering, and he then started pacing in the apartment. While that was happening, R.A. was out of sight on the floor behind a couch, but R.A. then stood up to reveal his presence and ask if Nett would let him leave. Nett responded by pushing R.A. against a wall and holding the knife to R.A.'s torso. While holding R.A. against the wall, Nett asked R.A. why he had raped him.
The deputies heard Nett saying several times to R.A., "Don't worry. I'm not going to stab you." However, Nett also yelled out to the deputies that he had a hostage and was going to slit his throat.
A sergeant at the scene crouched down and used the light on the end of his gun to illuminate the interior of the apartment. A deputy shot pepperballs through the hole in the door while instructing Nett to come out of the apartment and drop the knife. Nett went to the door and swiped his knife through the opening, enabling R.A. to escape into the bathroom. Nett then rammed the bathroom door to try to extract R.A., but was unsuccessful. Nett yelled to the deputies that he had slit R.A.'s throat, but R.A. shouted out to let the deputies know he was still alive.
The sergeant looked through the hole in the door and saw Nett approaching with an outstretched knife. After telling Nett to drop the knife, the sergeant fired four shots from his gun into the apartment, striking Nett several times and causing Nett to fall to the ground. The deputies were then able to reach inside and unlock the apartment door, gain entry and restrain Nett.
Nett was taken to a hospital, where he spent several days recovering from his gunshot wounds. At the hospital, Nett was interviewed by a detective about the incident. According to the detective, Nett said "that he was upset because he had been raped and that he just wanted the subject from the apartment to admit that he had been raping him." Nett said that when the officers arrived, he would have complied with them if the person in the apartment had admitted to raping him.
While at the hospital two different psychiatrists evaluated Nett for the purpose of prescribing medication to treat him. One psychiatrist diagnosed Nett with probable schizoaffective disorder, possible post-traumatic stress disorder from a trauma predating the gunshots, and possible antisocial personality disorder, which he diagnosed based on prior criminal convictions. The other psychiatrist diagnosed Nett with pain that was exacerbating his pre-existing post-traumatic stress disorder. That psychiatrist also noted possible schizoaffective disorder. B. The Guilt Phase of Trial
Nett was charged with one count of first degree burglary (§§ 459/460, subd. (a)); one count of assault with a deadly weapon on a peace officer (§ 245, subd. (c)); one count of assault with a deadly weapon (§ 245, subd. (a)(1)); three counts of making a criminal threat (§ 422); one count of false imprisonment of a hostage (§ 210.5); one count of animal cruelty (§ 597, subd. (a)), and one count of harming or interfering with a law enforcement dog (§ 600, subd. (b)), along with allegations for several of the counts that Nett personally used a dangerous and deadly weapon (a knife) (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)). It was also alleged that Nett incurred a prison prior (§ 667.5, subd. (b)), a serious felony prior (§ 667, subd. (a)(1)), and a prior strike (§§ 667, subds. (b)-(i), 1170.12, & 668). Nett pled not guilty and not guilty by reason of insanity.
At the guilt phase of trial, the jury heard the evidence we have described above. The jury found Nett guilty of all of the counts except for two, namely, the count alleging assault with a deadly weapon on a peace officer and one of the counts of making a criminal threat. The jury also made true findings on the weapon allegations. In a bench trial, the court found that Nett incurred a prison prior (§ 667.5, subd. (b)), a serious felony prior (§ 667, subd. (a)(1)), and a prior strike (§§ 667, subds. (b)-(i), 1170.12, & 668). C. The Sanity Phase of Trial
During deliberations, the jury asked whether the canine was a peace officer, and it was instructed that the canine was not a peace officer.
Nett was acquitted of the count that alleged a criminal threat against the deputy who handled the canine. That deputy did not testify about any specific threat being made against him.
At the beginning of the sanity phase of the trial the jury was told that it could rely on all of the evidence presented at the guilt phase as well as the evidence presented at the sanity phase.
The jury was next informed of a stipulation regarding the result of the drug and alcohol tests performed on blood drawn from Nett at 6:35 a.m. on the day of the incident. In two different tests, Nett's blood alcohol level was found to be either .108 or .096 grams per 100 milliliters. The blood sample was negative for any drugs.
A toxicologist testified that at 5:30 a.m., Nett's blood alcohol level would have been approximately .11 per 100 milliliters, resulting in mild intoxication, not paranoid delusions or extreme behavior. The toxicologist further explained that as shown by the negative drug test, Nett was not under the direct effect of methamphetamine during the incident.
The jury then heard testimony from Nett, who testified that he is a long-time drug user of multiple substances including methamphetamine, cocaine, marijuana and PCP, and that he was homeless during the incident. Nett testified at length about his belief that for many years various people, including law enforcement and Hells Angels, had been targeting him with a type of hypnosis he referred to as "snapping" and then forcing him to perform sex acts or raping him. Nett explained that he believed he was owed billions of dollars from a snapping incident that took place in a stadium, so he walked to Rancho Santa Fe to get some of that money from the wealthy people who live there. Nett explained that he located himself near a bank in Rancho Santa Fe to telepathically contact people to come there and give him money. When the police arrived, Nett believed they were going to rape him because the sheriff department knows how to snap.
The jury also heard testimony from a psychologist and a psychiatrist, both of whom evaluated Nett for the purpose of determining whether he was insane at the time he committed the crimes. The psychologist, Dr. G. Preston Sims, diagnosed Nett with substance induced psychosis caused by his prolonged use of substances over the years, including methamphetamine, that resulted in a "settled treatment resistant and permanent psychotic condition." Dr. Sims concluded that because of that condition, Nett was unable to consider the legal and moral wrongfulness of his actions when he committed the crimes, and that Nett was accordingly insane.
The psychiatrist, Dr. Nicholas Badre, diagnosed Nett with malingering, alcohol intoxication, alcohol use disorder, antisocial personality disorder, and a history of substance induced psychosis. Dr. Badre also concluded that Nett recognized that what he was doing during the incident was legally and morally wrong, and that he was able to recognize the nature and quality of his acts. Therefore, Dr. Badre opined that Nett was not insane at the time of the incident.
The jury found that Nett was sane at the time of the crimes, and therefore found him guilty. D. Sentencing
At sentencing, the trial court denied Nett's motion to strike his prior strike. It did, however, exercise its discretion to decline to impose the five-year enhancement for the serious felony prior (§ 667, subd. (a)(1)). Selecting the false imprisonment count as the principal term, it imposed a total prison term of 21 years, eight months.
II.
DISCUSSION
A. Nett's Challenge to the Sanity Finding
We first address Nett's argument that insufficient evidence supports the jury's finding that he was sane at the time he committed the crimes.
1. Applicable Legal Principles
We begin by reviewing the legal principles applicable to a defendant who pleads not guilty by reason of insanity. " 'Under California's statutory scheme, "[p]ersons who are mentally incapacitated' are deemed unable to commit a crime as a matter of law. (§ 26, par. [2].) Mental incapacity under section 26 is determined by the M'Naghten test for legal insanity provided in section 25, subdivision (b). (M'Naghten's Case (1843) 8 Eng.Rep. 718, 722; People v. Phillips (2000) 83 Cal.App.4th 170, 173; see Stats. 2007, ch. 31, § 3, pp. 138-139.) Under M'Naghten, insanity is established if the defendant was unable either to understand the nature and quality of the criminal act, or to distinguish right from wrong when the act was committed.' " (People v. Powell (2018) 5 Cal.5th 921, 955 (Powell).) " 'If [a] mental illness is manifested in delusions which render the individual incapable either of knowing the nature and character of his act, or of understanding that it is wrong, he [or she] is legally insane' " under California law. (People v. Blakely (2014) 230 Cal.App.4th 771, 780.) "A defendant 'may suffer from a diagnosable mental illness without being legally insane under the M'Naghten standard.' " (Powell, at p. 955.)
a. Distinguishing Right from Wrong
In evaluating an insanity defense, when determining whether a defendant was capable of distinguishing right from wrong, the question is "whether a defendant can distinguish, not the legal rightness or wrongness of his act, but its moral rightness or wrongness." (People v. Stress (1988) 205 Cal.App.3d 1259, 1272.) "Thus, if a person is incapable, because of a mental disease or defect, of understanding that his actions are morally wrong—that is, in violation of generally accepted standards of moral obligation—then that person is legally insane, regardless of whether he knows his actions are illegal." (People v. Severance (2006) 138 Cal.App.4th 305, 323; see also People v. Skinner (1985) 39 Cal.3d 765, 783 ["a defendant who is incapable of understanding that his act is morally wrong is not criminally liable merely because he knows the act is unlawful"].) "While . . . in most instances legal wrongfulness and moral wrongfulness are equivalent, this is not always the case [citations] and a defendant is free to argue . . . that while he was able to distinguish between legal right and wrong he could not distinguish between moral right and wrong." (Stress, at p. 1275.) Further, morality in the context of the insanity defense means generally accepted moral standards, and not the defendant's " 'own distorted standards.' " (People v. Coddington (2000) 23 Cal.4th 529, 608-609.) Thus, a "defendant is sane if he knows his act violates generally accepted standards of moral obligation whatever his own moral evaluation may be." (Stress, at p. 1274.)
b. Mental Disorder Caused Solely by Voluntary Substance Abuse
Special rules apply when drugs or alcohol are involved in causing a defendant's mental disorder. "A defendant may not be found insane solely on the basis of addiction to, or abuse of, intoxicating substances. (§ 29.8.) This provision 'makes no exception for brain damage or mental disorders caused solely by one's voluntary substance abuse but which persists after the immediate effects of the intoxicant have dissipated. Rather, it erects an absolute bar prohibiting use of one's voluntary ingestion of intoxicants as the sole basis for an insanity defense, regardless whether the substances caused organic [brain] damage or a settled mental disorder which persists after the immediate effects of the intoxicant have worn off.' " (People v. McCarrick (2016) 6 Cal.App.5th 227, 247 (McCarrick), italics added.) However, "[w]here the mental disease or defect is caused in part by an addiction or abuse of alcohol" a legal insanity defense is still available "depending on whether the defendant proves that it was his mental disease or defect that caused him to be unable to tell right from wrong." (People v. Cabonce (2009) 169 Cal.App.4th 1421, 1436 (Cabonce).) Only "individuals rendered insane solely because of their substance abuse should be treated differently than those afflicted by mental illness through no conscious volitional choice on their part." (People v. Robinson (1999) 72 Cal.App.4th 421, 428.) "Thus, there can be no insanity defense when the inability to tell right from wrong derived (1) solely from an addiction or abuse of intoxicating substances, or (2) from a mental defect or disorder that itself was caused solely by such addiction or abuse." (Cabonce, at p. 1434, italics added.)
Section 29.8 states, "In any criminal proceeding in which a plea of not guilty by reason of insanity is entered, this defense shall not be found by the trier of fact solely on the basis of a personality or adjustment disorder, a seizure disorder, or an addiction to, or abuse of, intoxicating substances."
The jury was instructed with this concept in CALCRIM No. 3450: "Special rules apply to an insanity defense involving drugs or alcohol. Addiction to or abuse of drugs or intoxicants, by itself, does not qualify as legal insanity. This is true even if the intoxicants cause organic brain damage or a settled mental disease or defect that lasts after the immediate effects of the intoxicants have worn off. Likewise, a temporary mental condition caused by the recent use of drugs or intoxicants is not legal insanity. [¶] If the defendant suffered from a settled mental disease or defect caused by the long-term use of drugs or intoxicants, that settled mental disease or defect combined with another mental disease or defect may qualify as legal insanity. A settled mental disease or defect is one that remains after the effect of the drugs or intoxicants has worn off." (Italics omitted.)
c. Defendant's Burden and the Appellate Standard of Review
When a defendant pleads not guilty by reason of insanity, " 'the burden is upon the defendant to prove by a preponderance of the evidence that he was insane at the time of the offense.' " (People v. Hernandez (2000) 22 Cal.4th 512, 521.)
On appeal, "a jury's finding of sanity will be affirmed if it is supported by evidence that is reasonable, credible, and of solid value, from which a reasonable trier of fact could find the defendant sane by a preponderance of the evidence." (Powell, supra, 5 Cal.5th at p. 957.)
Nett's opening brief acknowledges that we apply a substantial evidence standard in reviewing the jury's sanity finding. However, without citation, Nett several times contends the standard is whether "the evidence that appellant was insane when he committed the offenses was of such weight and character that the jury could not reasonably reject it." That standard does not apply here. Although Nett does not give a citation, the standard derives from People v. Drew (1978) 22 Cal.3d 333, 351, in which our Supreme Court described the approach that should be used when the prosecution fails to present any evidence on the issue of sanity but the jury nevertheless finds the defendant to be sane. In such a case "the question on appeal is not so much the substantiality of the evidence favoring the jury's finding as whether the evidence contrary to that finding is of such weight and character that the jury could not reasonably reject it." (Ibid.) Recently, in Powell, our Supreme Court clarified that the Drew standard applies only when the expert evidence of insanity is uncontested, and that the traditional substantial evidence standard applies, where, as here, the expert evidence of sanity is contested. (Powell, supra, 5 Cal.5th at pp. 956-957.)
2. Substantial Evidence Supports the Jury's Sanity Finding
Based on the legal principles we have described, the jury could find that Nett was legally insane only if (1) he was unable to distinguish right from wrong because of a mental disorder (Powell, supra, 5 Cal.5th at p. 955), and (2) the mental disorder that caused him to be unable to distinguish right from wrong was not based solely on his voluntary substance abuse (McCarrick, supra, 6 Cal.App.5th at p. 247). Both of these requirements had to be met for the jury to return a verdict of insanity. Here, as we will explain, substantial evidence in the record supports a finding that Nett failed to meet his burden to prove either of the requirements.
This requirement could also be met by a finding that Nett was "unable . . . to understand the nature and quality" of his actions. (Powell, supra, 5 Cal.5th at p. 955.) However, as defense counsel and Dr. Sims conceded at trial, this alternative standard for proving insanity would not apply here, as Nett did appear to understand what he was doing during the incident.
a. Evidence Supporting a Finding Nett Was Able to Distinguish Right from Wrong
We turn first to whether Nett was unable to distinguish right from wrong at the time of his crimes. Dr. Sims and Dr. Badre disagreed on that issue.
According to Dr. Sims, all of the crimes that Nett committed during the incident in Rancho Santa Fe were motivated by his delusion that the law enforcement officers or the canine were going to rape him. Based on that predicate, Dr. Sims concluded that Nett was unable to understand that his actions were either legally or morally wrong because he was so focused on avoiding the rape he thought was going to occur. Specifically, with respect to whether Nett could understand his actions were legally wrong, Dr. Sims testified, "[I]t's my opinion that at the time of the offense, from a legal standpoint, that Mr. Nett was incapable of understanding that these actions were legally wrong. He was not considering whether anything he was doing was against the law or not. What he was considering was how to keep himself from being raped by the sheriff's deputies and/or the dog." With respect to moral wrongfulness, Dr. Sims stated, "[I]t is my opinion that he was incapable of considering whether what he was doing was either morally right or morally wrong. All he knew at the time was, due to his delusional beliefs, he was going to be raped by these deputies or raped by this dog, and that's what motivated his actions at the time."
During his testimony, Nett said he had been "raped by the sheriff's department with the canine unit before. . . . So I knew they were most likely to do that again." Nett told Dr. Sims that he was afraid the dog was going to rape him, and Dr. Sims noted that medical records show a history of Nett claiming in 2015 that he had been raped by dogs.
Dr. Badre, in contrast, opined that Nett recognized that what he was doing while committing the crimes was morally and legally wrong. To support this opinion, Dr. Badre pointed to the fact that during the incident, Nett told R.A. that he was not going to hurt him while at the same time yelling to the deputies that he was going to kill R.A. Dr. Badre explained that this behavior showed that Nett understood what he was threatening to do to R.A. was morally wrong, but that he was attempting to use it to his advantage in the hostage situation.
Nett's appellate brief criticizes Dr. Badre's expert testimony and contends it was insufficient to support the sanity finding because "there were a number of errors and contradictions in Badre's trial testimony." Specifically, Nett points to (1) Dr. Badre's initial misunderstanding of Nett's blood alcohol level, which Dr. Badre originally understood to be higher than it was; and (2) Dr. Badre's disregard of prior medical records showing that Nett has had a long-standing delusion about being raped and other evidence related to Dr. Badre's conclusion that Nett was malingering when he claimed to be experiencing psychotic delusions. We note however, that these alleged "errors and contradictions in Badre's trial testimony" do not relate to Dr. Badre's opinion that Nett was able to distinguish right from wrong during the crimes. As Dr. Badre explained, that opinion was based solely on the fact that, during the incident, Nett yelled to the deputies that he would kill R.A., but Nett told R.A. that he would not hurt him. The jury could reasonably make its own assessment, based on the same evidence, whether it credited Dr. Badre's opinion that Nett was able to distinguish right from wrong during the crimes. The jury could reasonably infer that when Nett threatened to kill R.A. to obtain leverage in the hostage situation, Nett showed that he understood his threat had value because killing R.A. would be morally wrong.
In its role as trier of fact, "[i]t was for the jury to evaluate the testimony of the experts, examine the bases for their opinions and determine whom to believe." (People v. Chavez (2008) 160 Cal.App.4th 882, 891; see also People v. Wolff (1964) 61 Cal.2d 795, 804 ["if there is substantial evidence from which the jury could infer that the defendant was legally sane at the time of the offense such a finding must be sustained in the face of any conflicting evidence, expert or otherwise, for the question of weighing that evidence and resolving that conflict 'is a question of fact for the jury's determination' "].) Here, the jury was entitled to credit Dr. Badre's opinion, which was grounded in the facts of the case, to conclude that Nett was able to distinguish right from wrong while committing the crimes. Accordingly, substantial evidence supports a finding that Nett failed to meet his burden in seeking to establish a necessary element of his insanity defense.
b. Evidence Supporting a Finding That the Mental Disorder Allegedly Causing Nett's Inability to Distinguish Right from Wrong Was Based Solely on Voluntary Substance Abuse
Next, as we have explained, "there can be no insanity defense when the inability to tell right from wrong derived (1) solely from an addiction or abuse of intoxicating substances, or (2) from a mental defect or disorder that itself was caused solely by such addiction or abuse." (Cabonce, supra, 169 Cal.App.4th at p. 1434.)
Here, neither Dr. Sims nor Dr. Badre identified a mental disorder which could have caused Nett to be unable to distinguish right from wrong, and that was caused by something other than voluntary substance abuse. As we have explained, Dr. Badre diagnosed Nett with malingering, alcohol intoxication, alcohol use disorder, antisocial personality disorder, and a history of substance induced psychosis, and did not believe that any of these conditions caused Nett to be unable to distinguish right from wrong. Dr. Sims concluded that Nett was unable to distinguish right from wrong because of a mental disorder that caused him to suffer from delusions, but Dr. Sims concluded that the only mental disorder causing the delusions was substance induced psychosis brought on by Nett's long-term drug use.
Dr. Badre's diagnosis of antisocial personality disorder does not qualify as a mental disorder that could support a finding of insanity. Section 29.8 states that a finder of fact may not find insanity "solely on the basis of a personality or adjustment disorder." The jury was accordingly instructed that it was not permitted to base a finding of insanity solely on a personality disorder.
Accordingly, neither of the doctors who evaluated Nett for the purpose of determining sanity identified any mental disorder that would qualify Nett to be found insane. Even if the jury credited Dr. Sims's conclusion that Nett was unable to distinguish right from wrong, it would be required to find that Nett was not insane at the time of the crimes. This is because Dr. Sims concluded that Nett's inability to tell right from wrong derived "from a mental defect or disorder that itself was caused solely by . . . addiction or abuse" of illegal drugs. (Cabonce, supra, 169 Cal.App.4th at p. 1434, italics added.)
Nett points to evidence suggesting that he suffers from an additional mental disorder, namely post-traumatic stress disorder. Based on that evidence, Nett contends that insufficient evidence supports a finding that the mental disorder that made him unable to distinguish right from wrong was a disqualifying mental disorder caused solely by voluntary substance abuse. (Cabonce, supra, 169 Cal.App.4th at p. 1436 [an insanity defense may be available "[w]here the mental disease or defect is caused in part by an addiction or abuse of alcohol"].) Specifically, during the guilt phase of trial the two psychiatrists who treated Nett in the hospital after the gunshot wounds testified about their diagnoses. One of the psychiatrists diagnosed Nett with possible post-traumatic stress disorder from a trauma predating the gunshots, and the other psychiatrist diagnosed Nett with pain that was exacerbating that post-traumatic stress disorder. However, because of the trial court's evidentiary rulings, the psychiatrists did not give any further detail about Nett's post-traumatic stress disorder, including their basis for reaching that diagnosis or how that disorder might influence Nett's mental state.
Similarly, Nett testified during the sanity phase that, at some point in the past, he had been diagnosed with post-traumatic stress disorder, "just from my life."
There is no merit to Nett's contention that, because he also suffers from post-traumatic stress disorder, the evidence presented at trial was insufficient to support the jury's sanity verdict. Although the evidence at trial certainly indicated that Nett has some history of post-traumatic stress disorder, no evidence in the record supports a finding that Nett's post-traumatic stress disorder caused him to be unable to distinguish right from wrong at the time of the crimes. Dr. Sims was the sole witness to testify that Nett was unable to distinguish right from wrong, but Dr. Sims did not base that opinion, even in part, on Nett's post-traumatic stress disorder. Instead, Dr. Sims identified only Nett's substance induced psychosis as the cause for Nett's inability to distinguish right from wrong during the crimes. Accordingly, even though the jury heard evidence that Nett had a history of post-traumatic stress disorder, it could still reasonably find, based on substantial evidence in the record, that Nett's inability to distinguish right from wrong was caused solely by Nett's substance induced psychosis, and that Nett therefore could not establish that he was insane during the crimes.
In sum we conclude that the jury's sanity verdict was supported by substantial evidence. B. Substantial Evidence Supports the Burglary Conviction
We next turn to Nett's challenge to the sufficiency of the evidence to support the burglary conviction.
1. Standard of Review
In considering a challenge to the sufficiency of the evidence, "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. . . . We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. . . . If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. . . . 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Albillar (2010) 51 Cal.4th 47, 60, citations omitted.)
2. The People's Theory of Burglary in this Case
"In order to be guilty of burglary, an individual must unlawfully enter a dwelling with the intent to commit a theft or any felony. [Citations.] A necessary element to this crime is that the intent to commit the theft or felony must exist at the time of entry." (In re Leanna W. (2004) 120 Cal.App.4th 735, 741.) " ' "While the existence of the specific intent charged at the time of entering a building is necessary to constitute burglary in order to sustain a conviction, this element is rarely susceptible of direct proof and must usually be inferred from all of the facts and circumstances disclosed by the evidence." ' " (People v. Holt (1997) 15 Cal.4th 619, 669.) Although the jury should be instructed on the elements of the felony or felonies that the People contend the defendant intended to commit when he entered the building (People v. Rathert (2000) 24 Cal.4th 200, 204 (Rathert)), the jury is not required to agree on the specific felony that the defendant intended to commit when it is provided with more than one possible intended felony. (People v. Failla (1966) 64 Cal.2d 560, 569.)
In this case, Nett was charged with burglary based on his entry into R.A.'s apartment. The jury instructions identified three different felonies that Nett was alleged to have intended to commit at the time he entered R.A.'s apartment: (1) assault with a deadly weapon (§ 245, subd. (a)(1)); (2) false imprisonment of a hostage (§ 210.5); and (3) trying to prevent an executive officer from performing a duty (§ 69). The first two intended felonies, both of which were based on Nett's actions toward R.A. inside the apartment—were also charged as separate crimes, and Nett was found guilty of them. The third intended felony—trying to prevent an executive officer from performing a duty—was not charged as a separate crime, but the jury was instructed as to its elements. The jury found Nett guilty of burglary, but the record contains no indication of which felonies the jury determined Nett intended to commit at the time he entered R.A.'s apartment.
3. Nett's Challenge to the Sufficiency of the Evidence
Nett challenges the burglary conviction by arguing that insufficient evidence supports a finding that he had the specific intent to commit any of the three crimes identified in the jury instructions as the underlying intended felonies. Nett sets forth two separate arguments: First, he argues that because of either intoxication or a mental disorder, he lacked the ability to form any specific intent when he entered the apartment. Second, Nett contends that because the evidence shows he could not have known that anyone was in R.A.'s apartment, he could not have entered with the intent to assault someone or to hold someone hostage. We consider each argument in turn.
a. Evidence of Nett's Mental State Did Not Require the Jury to Find That Nett Was Unable to Form a Specific Intent
To support the argument that Nett was suffering from a mental disorder or intoxication during the incident which made him unable to form any specific intent to commit a crime when he entered R.A.'s apartment, Nett's opening brief relies on evidence of Nett's bizarre behavior. Nett contends that "[t]he testimony of the percipient witnesses provides ample evidence of [Nett's] mental impairment at the time of the . . . offenses." Nett points specifically to many details of the incident that we have set forth above, including that he was angry and aggressive; he was talking to an imaginary person; he claimed to have explosives; he pretended to throw a grenade; and he asked R.A. why R.A. had raped him. After summarizing Nett's bizarre behavior, the opening brief concludes, "Based upon the foregoing, [Nett] was either mentally ill or sufficiently mentally impaired, due to drug and alcohol intoxication, at the time of the alleged burglary and therefore did [not] actually form the requisite specific intent to support the burglary conviction."
Nett's opening brief also cites Dr. Badre's testimony that he believed Nett was drunk and high on methamphetamine during the incident. However, Dr. Badre testified during the sanity phase, not during the guilt phase, and thus his testimony is not relevant to our analysis of whether substantial evidence supports the verdict in the guilt phase.
We are not convinced that the jury was required to find, based on the evidence, that Nett was unable to form any specific intent when he entered R.A.'s apartment. Although Nett certainly displayed bizarre behavior, he generally appeared to be able to understand the nature of his surroundings and the situation, and seemed able to undertake willful action directed at a goal. For example, Nett decided several times to walk part way down the stairs and then changed his mind and walked back up. He kicked down the door to R.A.'s apartment, and he located a piece of furniture and moved it in front of the door. Most significantly, Nett held R.A. against the wall and yelled that he had a hostage. A jury could reasonably view these actions as showing that Nett's state of mind did not preclude him from forming a specific intent to commit a particular crime when entering R.A'.s apartment.
In addition, the jury could rely on Nett's own admission to the detective in the hospital after the incident to find that Nett was able to form a specific intent when he entered R.A.'s apartment. As Nett explained to the detective, his goal during the incident was to have the man in the apartment (i.e., R.A.) admit that he had been raping Nett. As Nett told the detective, he was not going to comply with the deputies' orders until he accomplished that goal. Significantly, although Nett may have relied on delusional thinking in deciding what actions to take, Nett's statement to the detective showed that Nett did formulate an intent and acted on it.
In sum, we conclude that substantial evidence supports a finding that Nett had the mental capacity to act with specific intent in entering R.A.'s apartment.
b. Substantial Evidence Supports a Finding That Nett Thought Someone Was in the Apartment
In his second challenge to the sufficiency of the evidence for the burglary conviction, Nett contends that the evidence fails to support a finding that he intended to assault or falsely imprison anyone in R.A.'s apartment at the time he entered because no evidence was presented at trial to suggest that Nett thought anyone lived in the building he was entering.
In this argument, Nett targets only two of the predicate intended felonies alleged for the burglary count, namely, assault with a deadly weapon and false imprisonment of a hostage. Nett's argument does not apply to the third felony that the People alleged Nett may have intended to commit when he entered R.A.'s apartment, namely, trying to prevent an executive officer from performing a duty. However, as discussed in section II.C., post, Nett raises a challenge to the jury instructions describing the offense of trying to prevent an executive officer from performing a duty. As we understand Nett's position, if we conclude there is merit to his instructional challenge and to his challenge to the sufficiency of the evidence for assault with a deadly weapon and false imprisonment of a hostage as predicate intended felonies, then we would be required to reverse the burglary conviction because no predicate intended felony would have been properly found by the jury to support that conviction.
Specifically, Nett argues that because the crime of assault with a deadly weapon and the crime of false imprisonment of a hostage must both be directed at someone, Nett cannot have intended to commit those crimes upon entering the apartment if he did not know anyone was inside the apartment. According to Nett, "the prosecution's evidence . . . fails to prove [Nett] knew or had reason to know [R.A.'s] apartment was occupied when he entered it." Nett points out that the Rancho Santa Fe Association security guard and one of the deputies who responded to the scene testified that they were not aware there were studio apartments in the Rancho Santa Fe business district. Nett argues that based on this testimony, the jury should have concluded that Nett also was unaware that the apartments existed. Nett also argues that there was no indication he could have known that anyone was inside of R.A.'s apartment because there was no sound or light inside. Specifically, R.A. testified that he was being careful to be quiet and keep the lights turned off inside the apartment while Nett was outside with the deputies.
We reject Nett's argument because it ignores evidence the jury could rely upon to conclude that Nett believed that he was entering an apartment with a resident inside and that, indeed, Nett's goal during the incident was to confront that resident about raping him. Specifically, the evidence supports a finding that Nett understood he was standing at the top of a staircase in front of two apartments with people inside because the woman in the other studio apartment heard Nett pounding on the wall and yelling, "I need a hot shower. I'm going to kill you." Moreover, as we have noted, Nett explained his motivation for the incident to the detective who interviewed him in the hospital. Nett stated that when the deputies arrived and commanded him to comply with their orders, he did not do so because he wanted to have the man in the apartment admit to raping him. Nett told the detective he was not going to comply with the deputies' orders until he achieved that goal.
Nett discounts the statements he made to the detective, arguing that it is illogical to infer from those statements that Nett "knew R.A. was inside the apartment before he entered it and therefore had the specific intent to commit the target offense of assault with a deadly weapon or false imprisonment of a hostage at the time he entered the apartment." Nett points out that "[Nett] and R.A. didn't know each other, had never seen each other before, and no evidence shows that [Nett] knew or had reason to know that R.A., or . . . that anyone else[] was inside the apartment when he entered it.
However, it was the jury's role to decide whether to credit Nett's statements to the detective as an accurate description by Nett of his state of mind during the incident. (People v. Smith (2005) 37 Cal.4th 733, 739 ["it is the exclusive province of the . . . jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends"].) Moreover, there was corroborating evidence presented at trial upon which the jury could have relied to decide to credit Nett's description of his state of mind to the detective. Specifically, Nett had carved "Rape" and "Your Dead" on the wall of the staircase near the studio apartments before the deputies arrived, and Nett pounded on the wall and yelled "I'm going to kill you." Those facts suggest that, as Nett described to the detective, he did have animosity toward the people in the apartments at the time of the incident (as he wanted to kill them), and he was fixated on the issue of rape. Although R.A and Nett did not know each other, based on the fact that Nett was also accusing the deputies of rape and that a treating psychiatrist diagnosed Nett with schizoaffective disorder, the jury could reasonably conclude that, as Nett told the detective, he was in fact experiencing a delusion that caused him to believe someone in the apartment had raped him.
In sum, substantial evidence supports a finding that when Nett entered R.A.'s apartment, he believed that the apartment was occupied by someone he wanted to confront about raping him. Moreover, building on that finding, a reasonable jury could conclude that Nett intended to assault the resident of the apartment, such as by using his knife to get the man to admit the rape. The jury could also conclude that Nett wanted to kill the man, as Nett had carved "Your Dead" on the staircase wall and yelled "I'm going to kill you" while pounding on the wall.
In the alternative, a reasonable jury could also conclude that because Nett eventually did take R.A. as a hostage, Nett had already formed that plan when he entered the apartment. Moreover, it would be reasonable for a juror to conclude that Nett, who had consistently resisted and defied the deputies from the top of the stairs and threatened to kill them, had already formed the intent when he entered R.A.'s apartment that he would continue to offer resistance by taking a hostage and threatening to harm him.
In sum, substantial evidence supports a finding that when Nett entered R.A.'s apartment, he had the specific intent to either commit an assault with a deadly weapon or to falsely imprison a hostage. We accordingly conclude that Nett's challenge to the sufficiency of the evidence to support the burglary conviction is without merit. C. The Trial Court Did Not Prejudicially Err in Instructing on the Offense of Trying to Prevent an Executive Officer from Performing a Duty.
We next turn to Nett's challenge to the jury instruction for the offense of trying to prevent an executive officer from performing a duty. (§ 69.)
As we have explained, the jury was instructed on the offense of trying to prevent an executive officer from performing a duty because it was one of the intended felonies the People alleged in the burglary count. "In a burglary prosecution, complete and accurate jury instructions include the definition of each felony the defendant is alleged to have intended to commit upon entry into the burglarized structure." (Rathert, supra, 24 Cal.4th at p. 204.)
Thus, the trial court was required to properly instruct the jury on the offense of trying to prevent an executive officer from performing a duty. Nett contends that the trial court erred with respect to the instruction because it did not inform the jury that trying to prevent an executive officer from performing a duty is a specific intent crime.
In addressing this argument, we first examine the crime of trying to prevent an executive officer from performing a duty. Section 69 provides, "(a) Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law, or who knowingly resists, by the use of force or violence, the officer, in the performance of his or her duty" is guilty of a crime. (§ 69, subd. (a).) As courts have observed, "[t]he statute sets forth two separate ways in which an offense can be committed. The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty." (In re Manuel G. (1997) 16 Cal.4th 805, 814.) "The two ways of violating section 69 have been called 'attempting to deter' and 'actually resisting an officer.' " (People v. Lacefield (2007) 157 Cal.App.4th 249, 255.)
The jury instructions in this case were clear that, as a predicate intended felony for the burglary count, the People were only relying upon the portion of section 69 making it a crime to attempt to deter an executive officer. The jury was not instructed on the part of section 69 making it a crime to actually resist an officer. Specifically, the jury was instructed with CALCRIM No. 2651, in relevant part, as follows: "In Trying to Prevent an Executive Officer From Performing Duty in violation of Penal Code [section] 69, the People must prove that: [¶] 1. The defendant willfully and unlawfully used violence or a threat of violence to try to prevent or deter an executive officer from performing the officer's lawful duty; [¶] AND [¶] 2. When the defendant acted, he intended to prevent or deter the executive officer from performing the officer's lawful duty."
It is well established in case law that the part of section 69 on which the People relied describes a specific intent crime. (People v. Orloff (2016) 2 Cal.App.5th 947, 952; People v. Nishi (2012) 207 Cal.App.4th 954, 967; People v. Lopez (2005) 129 Cal.App.4th 1508, 1530.) The crime "requires a specific intent to interfere with the executive officer's performance of his duties." (People v. Gutierrez (2002) 28 Cal.4th 1083, 1153-1154.)
Nett argues that "the trial court prejudicially erred when it failed to instruct the jury that the type of section 69 target offense, applicable to this case, is a specific intent crime." Although Nett does not specify the manner in which he contends the jury should have been instructed that specific intent was required for the offense of trying to prevent an executive officer from performing a duty, he argues that it was important for the jury to know that the offense required specific intent because "the jury was instructed . . . that evidence of voluntary intoxication is admissible on the issue of whether or not the [defendant] actually formed a required specific intent."
Nett is referring to CALCRIM No. 3426, in which the jury was instructed on voluntary intoxication. In particular, the instruction stated, "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way," and it then stated that the jury could consider that evidence "in deciding whether the defendant acted . . . with specific intent" in the counts alleging burglary, making a criminal threat, and false imprisonment. As we understand Nett's position, he believes that the trial court prejudicially erred in not sua sponte revising this instruction to also specify that the jury could consider voluntary intoxication when deciding whether, as a predicate intended felony for the burglary count, Nett intended to commit a violation of section 69 when he entered R.A.'s apartment.
The parties disagree on (1) whether Nett forfeited the issue by not requesting the instruction in the trial court; and (2) whether, if the issue was not forfeited, the instruction adequately conveyed the concept of specific intent by referring to the required mental state of intent in the instruction describing the elements of section 69. We need not resolve either of those issues because it is clear from the record that the instructional error, if any, was not prejudicial for two fundamental reasons.
First, even though Nett contends the omission of the specific intent instruction was prejudicial because the jury was not told that it could consider how voluntary intoxication impacted Nett's ability to form the specific intent necessary for a violation of section 69, the guilt phase of trial included almost no evidence that Nett may have been voluntarily intoxicated during the crimes. Not until the sanity phase was the jury informed of Nett's blood alcohol level. The only suggestion during the guilt phase of Nett's possible alcohol intoxication was that there was a wine bottle at the top of the stairs with Nett. Further, although one of the treating psychiatrists noted that Nett admitted a history of methamphetamine use, the detective who interviewed Nett in the hospital testified that Nett said he was not high on the day of the crimes. Indeed, because of the lack of evidence of intoxication, the prosecutor argued during closing in referring to the voluntary intoxication instruction, as follows: "There is talk about being intoxicated. There is no evidence of his intoxication, none. What it is, if he was intoxicated, what we're talking about is the presence of a wine bottle. So I suggest to you that while there is discussion of intoxication, it really doesn't come into play here now for lack of evidence on the point." Defense counsel made no mention during closing argument about Nett being unable to form a specific intent because of voluntary intoxication.
In his appellate brief, Nett argues that the omission of the instruction on specific intent was prejudicial because "the prosecution's expert opined appellant was drunk and high on methamphetamine, (therefore mentally impaired) at the time of the current offenses." However, the evidence Nett is referring to was presented in the sanity phase during Dr. Badre's testimony, not during the guilt phase.
Second, the jury was instructed that several of the crimes with which Nett was charged required him to form a specific intent, namely, the crimes of burglary, making a criminal threat, and false imprisonment of a hostage. However, the jury found Nett to be guilty of all three of these crimes. The jury's verdict therefore indicates that it did not find Nett to be too intoxicated to be able to form a specific intent required for those crimes. There is no reason to believe that the jury would have reached a different conclusion with respect to whether Nett was too intoxicated to have formed the specific intent required for section 69.
As the jury was instructed, the crime of burglary requires that "[w]hen he entered a building [the defendant] intended to commit a felony." (CALCRIM No. 1700.) The crime of making a criminal threat requires that "[t]he defendant intended that his statement be understood as a threat." (CALCRIM No. 1300.) The crime of false imprisonment of a hostage requires that "[t]he defendant intended to protect himself against the threat of imminent arrest by restraining the other person." (CALCRIM No. 1241.)
Based on the above, even if we apply the "harmless beyond a reasonable doubt" standard for assessing prejudice that Nett contends applies here (Chapman v. California (1967) 386 U.S. 18, 24), we conclude that the trial court's failure to instruct the jury on the specific intent requirement for section 69 was not prejudicial. Because the jury did not hear evidence of voluntary intoxication during the guilt phase, and because the jury found that Nett acted with specific intent in committing burglary, making a criminal threat and falsely imprisoning a hostage, we conclude beyond a reasonable doubt that any error in failing to instruct on specific intent regarding section 69 did not contribute to the verdict. D. Nett's Contention That the Punishment for Burglary, Assault with a Deadly Weapon, and Harm to a Law Enforcement Dog Should Have Been Stayed Pursuant to Section 654
Nett contends the Chapman standard applies because the trial court omitted an element of a crime. (People v. Flood (1998) 18 Cal.4th 470, 502-503 ["an instructional error that improperly describes or omits an element of an offense" is a "trial error subject to Chapman review"].) The People, citing People v. Pearson (2012) 53 Cal.4th 306, 325, footnote 9, contend that the "reasonable probability" standard of prejudice applies where, as here, a trial court errs in not identifying a particular offense as a specific intent crime in a voluntary intoxication instruction. We need not resolve the dispute, as even under the more demanding Chapman standard, any error was harmless.
We next consider whether the trial court was required to stay punishment on certain of the counts pursuant to section 654. Nett makes this argument with respect to the counts arising from Nett's entry into R.A.'s apartment. Those counts are burglary (§§ 459/460, subd. (a); count 1); false imprisonment of a hostage (§ 210.5; count 7); and assault with a deadly weapon (§ 245, subd. (a)(1); count 3). Nett also argues section 654 applies to the two counts arising from Nett's infliction of injury on the canine, namely animal cruelty (§ 597, subd. (a); count 8) and the misdemeanor offense of harming a law enforcement dog (§ 600, subd. (b); count 9).
Defense counsel raised the issue of section 654 at sentencing, where the trial court made clear it would select the term of punishment for false imprisonment of a hostage as the principal term. Defense counsel argued that the punishment for the burglary count should be stayed in light of the punishment imposed for false imprisonment of a hostage. Specifically, counsel explained that the jury "must have" reasoned that for the burglary count Nett "entered with the intent to commit the felony of taking a hostage." With respect to assault with a deadly weapon, defense counsel argued that the punishment for that count should be stayed in light of the punishment imposed for false imprisonment of a hostage because "this is the assault with a deadly weapon when Mr. Nett used a knife to take the homeowner hostage." For the crimes relating to the canine, defense counsel argued that punishment could not be imposed for both the crime of harming a law enforcement dog and the crime of animal cruelty because they arose from the same conduct of stabbing the canine. The prosecutor agreed that one of the counts arising from the stabbing of the canine should be stayed, but argued that section 654 did not apply to any of the other counts.
For the most part, the trial court rejected the applicability of section 654 to this case. As to the burglary count, the trial court stated that it was "not convinced 654 is applicable," and it imposed a concurrent sentence of eight years on that count. As to the assault with a deadly weapon count, the trial court similarly stated that it did not "believe necessarily that it would be stayed or is required to be stayed lawfully under section 654," and it imposed a concurrent sentence of six years on that count.
The only count to which the trial court applied section 654 was Nett's crime of making a criminal threat to R.A., which the court stayed under section 654 because it arose from the same course of conduct as the crime of false imprisonment of a hostage.
The trial court did not stay the sentence on one of the two counts arising from Nett's stabbing of the canine, although both defense counsel and the prosecutor agreed that section 654 applied. Instead, the trial court sentenced Nett to a term of one year, four months for the crime of animal cruelty (§ 597, subd. (a)) and for the misdemeanor offense of harming a law enforcement dog (§ 600, subd. (b)), it ran the sentence concurrent with time already served.
Nett contends that the trial court erred in not staying the punishment for (1) the offense of harming a law enforcement dog; (2) the burglary count; and (3) the assault with a deadly weapon count.
1. The Applicable Legal Standards
We begin by examining the legal standards applicable to a stay of punishment under section 654.
Section 654, subdivision (a), provides 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." In addition to precluding multiple punishments for a single act, section 654 also precludes multiple punishments for an indivisible course of conduct. (People v. Corpening (2016) 2 Cal.5th 307, 311 (Corpening); People v. Hester (2000) 22 Cal.4th 290, 294 (Hester); People v. Tarris (2009) 180 Cal.App.4th 612, 626.) " ' "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." ' " (People v. Capistrano (2014) 59 Cal.4th 830, 885 (Capistrano), overruled on other grounds in People v. Hardy (2018) 5 Cal.5th 56, 104.)
Although the trial court imposed concurrent sentences for the false imprisonment of a hostage, burglary and assault with a deadly weapon counts, " '[i]t has long been established that the imposition of concurrent sentences is precluded by section 654 [citations] because the defendant is deemed to be subjected to the term of both sentences although they are served simultaneously.' [Citation] Instead, the accepted 'procedure is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable.' [Citations] Accordingly, although there appears to be little practical difference between imposing concurrent sentences, as the trial court did, and staying sentence on two of the convictions, as defendant urges, the law is settled that the sentences must be stayed to the extent that section 654 prohibits multiple punishment." (People v. Jones (2012) 54 Cal.4th 350, 353.)
" 'It is [the] defendant's intent and objective, not temporal proximity of his offenses, which determine whether the transaction is indivisible.' [Citation] ' "The defendant's intent and objectives are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support [the] finding the defendant formed a separate intent and objective for each offense for which he was sentenced." ' " (Capistrano, supra, 59 Cal.4th at p. 886.) "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.) A trial court may base its sentencing decision on any facts that are in evidence at trial, without regard to the verdict, unless there are circumstances which foreclose the trial court from doing so. (People v. McCoy (2012) 208 Cal.App.4th 1333, 1340.) "A trial court's express or implied determination that two crimes were separate, involving separate objectives, must be upheld on appeal if supported by substantial evidence." (People v. Brents (2012) 53 Cal.4th 599, 618.)
We next examine how these legal standards apply to Nett's contention that section 654 bars punishment for (1) the offense of harming a law enforcement dog; (2) the burglary count; and (3) the assault with a deadly weapon count.
2. The Punishment for Harming a Law Enforcement Dog Should Have Been Stayed Under Section 654
As the parties agreed in the trial court, and as the People concede on appeal, Nett should not be punished for both animal cruelty (§ 597, subd. (a)), and harming a law enforcement dog (§ 600, subd. (b)). We agree. The two convictions are based on the same conduct, namely, Nett's stabbing of the canine. Accordingly, the trial court should have stayed the sentence imposed for harming a law enforcement dog in count 9.
3. The Trial Court Did Not Err in Declining to Stay the Punishment on the Burglary Count
We next consider whether section 654 requires that the punishment be stayed for the burglary count. "Burglary consists of entry into a house or other specified structure with the intent to commit a felony. . . . Thus, ordinarily, if the defendant commits both burglary and the underlying intended felony, Penal Code section 654 will permit punishment for one or the other but not for both." (People v. Centers (1999) 73 Cal.App.4th 84, 98, citation omitted.) The jury was instructed that it could base a burglary conviction on a finding that Nett entered R.A.'s apartment with the intent to commit assault with a deadly weapon or false imprisonment of a hostage. Therefore, based on the rule precluding punishment for both burglary and the underlying intended felony, Nett argues that "section 654 precludes multiple punishment for the burglary in count 1 and the target offenses for which [Nett] was convicted separately in counts 3 and 7," namely assault with a deadly weapon or false imprisonment of a hostage.
However, Nett's argument fails because the jury was also instructed that it could base a burglary conviction on a finding that, upon entering R.A.'s apartment, Nett intended to commit the crime of preventing an executive officer from performing a duty. Case law holds that a defendant may be punished for both the burglary and the charged crimes that he was alleged to have intended to commit upon entry into the building, if substantial evidence supports a finding that the defendant also intended to commit another felony upon entry into the building that was not charged against the defendant. (People v. Nelson (1989) 211 Cal.App.3d 634, 638-639 [because the evidence supported a finding by the trial court that the defendants entered a house with "discrete objectives" of theft and assault, under section 654 punishment could be imposed for both the burglary and the assault convictions, where the defendant was not charged with any theft crime]; People v. Booth (1988) 201 Cal.App.3d 1499, 1505 (Booth) [where no theft crime was charged, separate punishment for burglary and rape was permissible under section 654 because the evidence supported a finding that the defendant also entered the house with the intent to steal].) In such a case, the defendant forms a separate intent and objective with respect to the burglary because the burglary is motivated by an additional separate felony apart from the felonies for which the defendant is convicted and punished. (Booth, at p. 1505 ["the facts of the present case support the determination that defendant entered the victims' homes with the intention of achieving two objectives—to rape and to steal. Such dual intent precludes a finding as to each victim that his entry into their homes and his sexual assaults constituted an indivisible course of conduct to which section 654 is applicable."], footnote omitted.)
Here, substantial evidence supports a finding by the trial court that Nett intended to commit multiple felonies upon entering R.A.'s apartment, one of which was not charged against him. As we have already explained, substantial evidence supports a finding that Nett intended to commit assault with a deadly weapon and false imprisonment of a hostage. However, the evidence also supports a finding that Nett intended to commit the third crime identified in the jury instructions as a predicate for the burglary, namely the crime of trying to prevent an executive officer from performing a duty. (§ 69.) As the jury instructions stated, to prove that offense, the People must establish "1. The defendant willfully and unlawfully used violence or a threat of violence to try to prevent or deter an executive officer from performing the officer's lawful duty; [¶] AND [¶] 2. When the defendant acted, he intended to prevent or deter the executive officer from performing the officer's lawful duty." Based on the evidence, the trial court could reasonably conclude that Nett intended to commit this crime when he kicked a hole in the door to R.A.'s apartment and went inside. Specifically, Nett quickly barricaded himself inside the apartment after entering, supporting a finding that Nett entered with the intent to prevent the deputies from carrying out the duty of apprehending and arresting him. Further, Nett's intent upon entry to use violence or a threat of violence to prevent the officers from carrying out their duties can be inferred from the fact that Nett later stabbed his knife through the door at the deputies and held a hostage at knifepoint and threatened to kill him.
In sum, because the trial court could reasonably find that Nett intended to commit an additional felony, beyond the crimes of assault with a deadly weapon and false imprisonment of a hostage, when he entered R.A.'s apartment Nett's reliance on section 654 lacks merit. (See Nelson, supra, 211 Cal.App.3d at p. 639; Booth, supra, 201 Cal.App.3d at p. 1505.) The trial court was not required to stay the punishment on the burglary count on the basis that Nett was also punished for the underlying intended felonies of assault with a deadly weapon and false imprisonment of a hostage.
4. The Punishment for Assault with a Deadly Weapon Should Have Been Stayed Under Section 654
A different issue arises with respect to imposing separate punishment on the assault with a deadly weapon count and the false imprisonment of a hostage count. If those counts arose from a single act or indivisible course of conduct, they cannot both be punished under section 654. (Corpening, supra, 2 Cal.5th at p. 311; Hester, supra, 22 Cal.4th at p. 294.) We must therefore examine whether substantial evidence supports an implied finding that Nett's assault with a deadly weapon of R.A. and Nett's false imprisonment of R.A. as a hostage arose from separate acts or a divisible course of conduct, rather than from the same act or an indivisible course of conduct.
Based on our review of the record, it appears that the evidence permits no other finding that the two counts arose from a single act and an indivisible course of conduct. A required element of the crime of false imprisonment of a hostage is that "[t]he defendant restrained or detained another person by force or by a threat to use force." (CALCRIM No. 1241.) There is no dispute that Nett restrained or detained R.A. by pushing him against the wall and holding him at knifepoint after R.A. asked to leave. That same conduct of pushing R.A. against the wall and holding him at knifepoint formed the basis for the assault with a deadly weapon conviction. Nett did not otherwise assault R.A. Therefore, the false imprisonment of a hostage count and the assault count arose from a single act and an indivisible course of conduct. The trial court accordingly should have stayed the punishment for assault with a deadly weapon in count 3. E. The Trial Court Did Not Abuse Its Discretion in Denying the Motion to Strike Nett's Prior Strike
At sentencing, defense counsel made an oral motion requesting that the trial court strike Nett's prior strike. The prior strike, incurred in 2015, was a conviction for resisting an executive officer in violation of section 69, along with a finding that Nett personally used a dangerous and deadly weapon (§ 1192.7, subd. (c)(23)). Testimony about the 2015 offense was presented during the guilt phase of the instant trial. In committing the 2015 offense, Nett pulled out a knife when he was confronted by officers about loitering in an alley behind a commercial building and did not drop the knife until he was subdued by a taser. During the incident, an officer stated he would kill Nett if he didn't put down the knife, and Nett replied, "That's what I want you to do." Defense counsel argued that the trial court should strike the prior strike because of "the general lack of a violent history, the well-documented history of mental illness, and the fact that the prior strike was actually an attempted suicide by police officer."
The court ruled as follows: "I understand I have the discretion to strike the strike. I'm going to decline to do that for a couple of reasons: One, the recency of it. Two, there is, in fact, one other prior assaultive conduct conviction prior to that, and I think from my perspective, the strike is not appropriate to be stricken here."
The trial court was apparently referring to a 2007 conviction, in which, according to the probation report, Nett pled guilty to escape from jail based on leaving his residence during house arrest, but was also charged with two counts of assault with a deadly weapon and inflicting corporal injury on a spouse or cohabitant. The probation officer's report described the incident that gave rise to charges as follows: "The victim, who identified herself as being the defendant's cousin, reported that after she failed to pick the defendant up from work, he became intoxicated and belligerent. An argument ensued and the defendant pushed the victim to the ground. He then grabbed a kitchen knife and stood over the victim. The defendant grabbed the victim's hair and placed the knife to her torso. He later placed his foot on her stomach and placed a knife to her throat. The victim was able to escape and call for authorities. At the time of this incident, the defendant was on house arrest due to a prior felony DUI conviction. After the above incident, he left his residence."
A trial court may dismiss prior felony conviction allegations in cases prosecuted under the Three Strikes law when dismissal is "in furtherance of justice." (§ 1385, subd. (a); see People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) "[T]he law creates a strong presumption that any sentence that conforms to [its] sentencing norms is both rational and proper." (People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).) In deciding whether to dismiss prior conviction allegations, the court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
We review a trial court's refusal to strike prior conviction allegations for abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 375.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.)
Here, the trial court demonstrated that it understood that it had the discretion to strike Nett's strike if it chose to do so. The trial court then showed its reasonable thought process in deciding to deny the motion on the basis that Nett's prior strike was recent and that Nett had earlier been prosecuted for assaultive conduct.
A court denying a motion to strike may reasonably focus on the fact that the prior strike was recently committed. (People v. Strong (2001) 87 Cal.App.4th 328, 346 [a defendant with "only a recent violent assault, soon followed by another felony while still on parole, surely, . . . would come within both the letter and the spirit of the Three Strikes law"].) Indeed, the prior strike was notably recent compared to the instant offenses, as it was committed on March 30, 2015, and Nett was released from prison to parole in April 2016 for that conviction. As the probation officer noted, "[w]hile on parole, [Nett] sustained numerous violations." Nett then committed the instant crimes on December 3, 2016.
Moreover, the 2015 strike and the instant offenses were based on similar violent conduct during which Nett used a knife against law enforcement. Those two violent incidents were similar to Nett's commission of another violent offense with a knife in 2007. The trial court could reasonably conclude that Nett's commission of the instant offense shortly after being released from prison on the 2015 strike shows that Nett remains the same violent criminal he was in 2015 when he incurred the prior strike and when he committed the other violent offense with a knife in 2007. On that basis, the court did not abuse its discretion in concluding that Nett did not fall outside the spirit of the Three Strikes law.
In sum, we cannot conclude that the trial court's decision to deny the motion to strike the strike was "so irrational or arbitrary that no reasonable person could agree with it." (Carmony, supra, 33 Cal.4th at p. 377.) Accordingly, Nett's challenge to the trial court's denial of the Romero motion lacks merit. F. The Matter Must Be Remanded for Resentencing Because the One-Year Enhancement for the Prior Prison Term is No Longer Valid
The final issue concerns the one-year enhancement for Nett's prior prison term that the trial court imposed pursuant to section 667.5, subdivision (b). As the parties agree, that enhancement is no longer valid based on a statutory amendment that became effective after Nett was sentenced.
When Nett was sentenced in July 2019, the law provided for a one-year enhancement for each separate prior prison term served by the defendant. (Former § 667.5, subd. (b).) Based on that law, the trial court here imposed a consecutive one-year term for Nett's prior prison term conviction.
Effective January 1, 2020, Senate Bill 136 amended section 667.5, subdivision (b). (Stats. 2019, ch. 590, § 1.) That section now limits one-year prior prison term enhancements to cases where the prior prison term was for a sexually violent offense, as defined in Welfare and Institutions Code section 6600, subdivision (b). It is undisputed that Nett's prior offense was not a sexually violent offense. Accordingly, Nett is no longer within the class of offenders who are eligible for the additional one-year prior prison term enhancement under section 667.5, subdivision (b).
As the People acknowledge, because Nett's judgment is not yet final, Nett is entitled to the benefit of the change in the law. (People v. Jennings (2019) 42 Cal.App.5th 664, 682; see also In re Estrada (1965) 63 Cal.2d 740.) Accordingly, the matter will be remanded to the trial court with directions that the trial court strike the prior prison term enhancement and resentence Nett. (People v. Keene (2019) 43 Cal.App.5th 861, 865; People v. Buycks (2018) 5 Cal.5th 857, 893 ["when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.' "].)
DISPOSITION
The sentence is vacated, and the trial court is ordered to resentence Nett to include (1) staying the sentence in count 3 (assault with a deadly weapon) and count 9 (harming a law enforcement dog) pursuant to section 654; and (2) striking the one-year prior prison term enhancement imposed under section 667.5, subdivision (b). Following resentencing the trial court shall forward an amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
IRION, J. WE CONCUR: AARON, Acting P. J. GUERRERO, J.