People v. Roberts CA2/7

Filed 3/18/14 P. v. Roberts CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B241838

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA389938)
v.

WILLIAM SCOTT ROBERTS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Stan
Blumenfeld, Judge. Affirmed as corrected with directions.
Alan Stern, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews and
Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________
 INTRODUCTION

The People charged defendant William Scott Roberts in an information with one
count of making a criminal threat (Pen. Code,1 § 422; count 1), one count of dissuading a
witness from reporting a crime (§ 136.1, subd. (b)(1); count 2), and 12 counts of
dissuading a witness from testifying (id., subd. (a)(1); counts 3 through 14). As to all
counts, the People alleged that Roberts had suffered three prior serious or violent felony
convictions within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12)
and three serious felony convictions (§ 667, subd. (a)), and that he had served five prior
prison terms (§ 667.5, subd. (b)).
Prior to jury selection, the trial court granted the People’s motion to dismiss counts
3, 9, 10 and 12 pursuant to section 1385. The jury acquitted Roberts of making a
criminal threat but found him guilty of the remaining charges. Roberts then waived his
right to a trial on the prior conviction allegations and admitted he had suffered the three
1981 robbery convictions that served as the basis for the three strikes and serious felony
conviction enhancement allegations. With respect to the prior prison term allegations, the
People noted that the trial court could only impose two one-term enhancements, but the
People decided not to request those enhancements.
On Roberts’ motion pursuant to People v. Superior Court (Romero) (1996) 13
Cal.4th 497, the trial court, over the People’s objection, struck two of Roberts’ strike
convictions. The court then sentenced Roberts to state prison for a total term of 13 years
consisting of four years on count 2 (the middle term of two years, doubled pursuant to the
three strikes law), a consecutive term of four years on count 4 (the middle term of two
years, doubled pursuant to the three strikes law), plus five years for the prior serious
felony conviction pursuant to section 667, subdivision (a)(1). The court imposed
concurrent terms on the remaining counts.

1 All further statutory references are to the Penal Code unless otherwise noted.

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 Roberts argues that the trial court abused its discretion in answering a question
from the jury regarding count 2, and in the alternative that trial counsel for Roberts was
ineffective in failing to request “a more precise response” to the jury’s question. Roberts
also argues that the trial court abused its discretion in striking only two of his three prior
strike convictions, and that the trial court should have stayed the sentence on one of the
counts pursuant to section 654. Finally, Roberts seeks amendment of the abstract of
judgment to correct a clerical error. We direct the trial court to correct the minute order
of the sentencing hearing and the abstract of judgment to conform to the oral
pronouncement of sentence, and otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Assault in Las Vegas
In July 2011 Roberts and his girlfriend Sandra Bailey traveled from Los Angeles
to Las Vegas by bus and stayed at the Fun City Motel. The couple had been dating for
seven or eight years. Bailey, who had been living in a nursing home, had serious medical
issues. She had a cast and a colostomy bag, and she used a wheelchair.
One day Roberts and Bailey went to a casino. Roberts returned to the hotel to take
a shower, while Bailey remained at the casino and waited for Roberts to return. Although
Bailey had her walker, she needed Roberts’ help. When Roberts did not return to the
casino, Bailey took a cab back to the motel where she found Roberts asleep. Bailey
started screaming at Roberts and startled him. Roberts, who preferred to wake up
“gently,” struck Bailey in the face, causing bruising. Roberts only hit Bailey once and,
according to Bailey, this was the first time Roberts had ever hit her.
Later that night, Roberts and Bailey were in bed when officers from the Las Vegas
Police Department came to their motel room. Bailey told the officers she was fine, and
they left.
Roberts and Bailey returned to Los Angeles by bus on July 14, 2011 in the early
morning hours. Bailey ate something that upset her stomach and obstructed her

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colostomy bag. Because the buses were not operating at that time, Roberts and Bailey sat
on a bench and waited. Eventually they made their way to another location where they
both fell asleep while waiting for a bus. When Bailey woke up, she felt worse. She saw
a bus headed to Cedars-Sinai Medical Center (Cedars), where she normally went for
medical care. She could not awaken Roberts, and got on the bus alone.

B. Counts 1 and 2
Dr. Daniel Hoh treated Bailey in the emergency room at Cedars. Dr. Hoh
documented that Bailey had a black right eye. Bailey informed the physician that her
boyfriend had assaulted her three days earlier but she did not want to file a police report
because she feared retaliation. Cedars admitted Bailey and placed her in a private room.
On the morning of July 15, 2011 hospital social worker Gail Weiss-Bogan went to
see Bailey after receiving a referral from emergency room personnel. Weiss-Bogan,
warned that someone might be in Bailey’s room, quietly introduced herself to Bailey and
asked if they were alone. Bailey said they were not. When Weiss-Bogan asked Bailey if
Bailey’s boyfriend was in the bathroom, Bailey, who appeared anxious and afraid,
nodded her head. Bailey again nodded her head when Weiss-Bogan asked if she was
afraid and concerned for her safety.
Roberts then walked out of the bathroom. Weiss-Bogan introduced herself to
Roberts and asked him to step out of the room so she could talk to Bailey in private.
Roberts refused, stating, “No, I am not going to leave the room because there is nothing
private between us and I’m not leaving.” Weiss-Bogan explained that it was standard
procedure for her to talk to the patient in private. Roberts still refused to leave and
appeared unconcerned when Weiss-Bogan said she was going to call security.
Dr. Eugene Kim entered Bailey’s room and heard Roberts refuse Weiss-Bogan’s
request to leave. Roberts called Weiss-Bogan a “bitch,” and Dr. Kim asked him to leave.
Roberts finally agreed, but before leaving the room he told Bailey, “You don’t have to

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talk to them if I’m not here.” Roberts told Bailey he loved her and again called Weiss-
Bogan a “bitch.”2
After Roberts left, Bailey told Dr. Kim she did not feel safe in Roberts’ presence.
She voiced concern for her physical safety and stated she did not want Roberts to beat her
again. Bailey also shared that during the previous night, while Roberts was in her
hospital room, he threatened to beat her again if she told anyone he had assaulted her.3
Dr. Kim then examined Bailey. Although she was scared and anxious, she appeared to
understand her situation and was alert and coherent. She did not appear under the effects
of medication.
Following the examination Dr. Kim and Weiss-Bogan conferred. Weiss-Bogan
called security and the police. Security escorted Roberts out of the hospital.
Los Angeles Police Officer Alfonso Rojas later interviewed Bailey at the hospital.
When the officer asked Bailey about her black eye, Bailey said her boyfriend had
punched her three days earlier when they were in Las Vegas and told her that he would
kill her if she told the police. Because of this threat, she had covered her injury when the
Las Vegas police officers came to the hotel room and told them that nothing had
happened.4 Bailey told Officer Rojas that she loved Roberts, that he did not mean to hit
her hard, and that he had never hit her before.
After Officer Rojas left to get a camera, Weiss-Bogan saw Roberts returning to
Bailey’s room, wearing a different shirt. When Officer Rojas returned, Weiss-Bogan told

2 Bailey testified she did not remember any interaction between Roberts and
hospital staff. She did not remember Weiss-Bogan visiting her in her room. Bailey was
receiving a high dose of morphine at the time. Bailey also did not want to testify at
Roberts’ trial. She still loved him and did not want anything bad to happen to him.
3 At trial, Bailey testified that she did not remember making this statement to Dr.
Kim. She also did not remember Roberts threatening her at Cedars.
4 Bailey testified that she did not remember making this statement to Officer Rojas.

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him that Roberts was in Bailey’s room. Officer Rojas saw Roberts in the bathroom and
arrested him.
Detective Ronald Cade also interviewed Bailey in her hospital room. Bailey
recounted that Roberts had hit her while they were in Las Vegas and threatened to kill her
if she told the police about the assault. Bailey again stated that when the police arrived at
their motel room, she covered up her injury and said she was fine. Bailey also told
Detective Cade that she and Roberts had argued when Roberts came to her hospital room.
Roberts threatened her again, telling her he would kill her if she told the police about the
assault in Las Vegas.5 Bailey told Detective Cade she was still afraid of Roberts. She
also acknowledged that he had hit her before but she had never reported the abuse.

C. Counts 4, 5, 6, 7, 8, 11, 13 and 14
Roberts called Bailey from jail on September 20, 24, and 30, 2011, and twice on
September 28. Roberts also called Bailey on October 2, 5 and 12. During each of these
telephone conversations, Roberts tried to dissuade Bailey from testifying.

D. Roberts’ Version
Roberts testified on his behalf. He admitted that he struck Bailey while they were
in Las Vegas and gave her a black eye. This was the one and only time he hit her.
The next day Roberts and Bailey returned to Los Angeles by bus. After arriving,
they took a cab directly to USC Medical Center where Bailey had a scheduled
appointment. Roberts waited for Bailey outside with their luggage for four or five hours.
After Bailey’s appointment at USC Medical Center they traveled to West
Hollywood where they ate dinner at a restaurant called the French Quarter. While
waiting at a bus stop Bailey complained that she did not feel well and said that she

5 At trial, Bailey did not remember telling Detective Cade about the argument or
threat in her hospital room. She claimed that she was on drugs, in pain, and confused
during her interview with the detective.

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wanted to go to Cedars. Roberts asked Bailey if she could wait a few hours and hang out
with him.6 Eventually, Roberts fell asleep. When he woke up Bailey was gone. He
called Cedars to confirm that Bailey was there.
By the time Roberts arrived at Cedars, Bailey already had been treated in the
emergency room and was in a hospital room. Roberts obtained a visitor’s pass and went
to Bailey’s room. Roberts fell asleep on a rollaway bed hospital staff brought for him.
Roberts woke up to the sound of Weiss-Bogan telling him he had to wake up and
leave the room or she would call security. Roberts said he “immediately made the
association that . . . she’s rolling on this black eye, thinking that I did it,” and “[e]ven
though I did, she didn’t know that, and that ticked me off.”
Roberts asked Bailey, “Who’s this?” and said, “Tell this to step out of the room.”
Roberts admitted that he was “nasty” to Weiss-Bogan. Roberts also said he “probably
went to the bathroom.” At some point a doctor said to Roberts, “Sir, will you please step
out of the room,” and Roberts agreed. As he walked out Roberts called Weiss-Bogan a
“bitch,” explaining, “She was rude so I was rude.” Roberts admitted that on the way out
of Bailey’s room, he told Bailey, “Don’t say anything to that woman.” Roberts said this
because he did not believe that Weiss-Bogan was acting in their best interests.
Security escorted Roberts to the lobby where he sat for a moment and then left.
He walked to a bench, sat down, and smoked a cigarette. He opened a zipper on his bag
and realized that some of his HIV medication was not in the bag. He changed his shirt
“to avoid any further incidents with the Cedars hospital security” and then returned to
Bailey’s room at Cedars.
When Roberts entered Bailey’s room, no one was there. He said to Bailey,
“Sandy, where’s that little zipper bag?” Roberts took the bag from Bailey and went into
the bathroom so he could separate his medication from hers, leaving the bathroom door

6 Roberts denied that he was fearful that a doctor or social worker at the hospital
would ask Bailey about her black eye and that he would get in trouble. He also denied
that Bailey was afraid of him while she was at the hospital.

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ajar. A police officer then appeared, asked him to place his hands behind his back, and
took him away.
Roberts denied ever threatening Bailey. He also denied calling her from jail prior
to September. He did not know what had happened to her. He was unable to speak with
Bailey while he was in jail and she was at Cedars. After Bailey’s doctors discharged her
from Cedars and moved her into a nursing home, Bailey sent Roberts a card with a
telephone number where he could reach her.
Roberts then began calling Bailey. From September 7 until October 12, Roberts
called Bailey 38 times. During some of these calls he told Bailey not to go to court, and
during others he told her to go to court. Roberts did not believe it was in their best
interests for Bailey to go to court, and Bailey did not want to go to court. Roberts stated,
“I didn’t want her to go to court. Absolutely.” Roberts also was upset because he was in
custody and believed he had not committed a crime in Los Angeles. He denied
threatening Bailey in Las Vegas or Los Angeles. He admitted that the only crime he
committed was hitting Bailey in Las Vegas. At no time during the 38 conversations he
had with Bailey did Roberts threaten Bailey with bodily harm. Roberts believed that he
could not be prosecuted in Los Angeles for a crime committed in Las Vegas.

E. Proceedings at Trial Regarding Counts 1 and 2
Throughout the trial the court, the prosecutor, and counsel for Roberts all
emphasized that the charges against Roberts related to conduct that had occurred in Los
Angeles at Cedars, not conduct that had occurred in Las Vegas at the Fun City Motel.
The trial court instructed the jury at the beginning of the trial that the charges were based
on conduct that occurred in Los Angeles. The court told the prospective jurors that “[t]he
People allege that on or about July 15, 2011, in the County of Los Angeles, William
Roberts, the defendant, threatened to harm Sandra Bailey if she told the police that he had
hit her. And then he later discouraged her from attending or testifying in this case.”
During her opening statement to the jury, the prosecutor noted that “count 1 is a criminal
threat count, and that is based on the threat that [Roberts] made to [Bailey] while at

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Cedars-Sinai, the threat that she said he made when he said, ‘If you say anything to
anyone, I’ll beat you up.’ And that’s the threat that [she] relayed to . . . Gail Weiss-
Bogan and to Dr. Kim.” The prosecutor further emphasized that count 2, dissuading a
person from reporting a crime, was based on the same threat at Cedar-Sinai.
During closing argument, the prosecutor told the jury: “Ladies and Gentlemen, as
we talked about in opening, the first [count] is a . . . section 422, which is a criminal
threat. And in this count, this occurred, it’s alleged to have occurred on July 15th, 2011.
The criminal threat count deals with the threat that the defendant made to Sandra Bailey
at Cedars-Sinai, the threat that Sandra Bailey relayed to the investigating officer and to
Gail Weiss-Bogan. That is the basis of this count. And only that. Count 2 is a
[section] 136.1, dissuading of a witness from reporting a crime. Count 2 also occurred on
July 15th, 2011. And that only deals with the threat and the crime occurring in Cedars-
Sinai. And this deals with the fact that the defendant told Sandra Bailey not to talk to
anyone, and he was dissuading her when he threatened her from reporting the crime. So
count 1 and count 2 are only things that occurred in Cedars-Sinai.”
Counsel for Roberts stated to the jury in closing argument, “I told you in my
opening we’re going to pick a jury to find out what the truth was as to July 15th. What
actually happened there at Cedars-Sinai.” He also stated he was “going to talk about the
criminal threat and the dissuading that happened, they allege, at the hospital.” Counsel
for Roberts further argued to the jury that Roberts “knew that what happened in Las
Vegas couldn’t be prosecuted here,” and he argued that there was no threat or dissuasion
on July 15th. Counsel for Roberts also stated that Roberts was “an easy target” because
“people don’t like him. You probably don’t like him. I don’t like him. I don’t like what
he does to Ms. Bailey. I don’t like what he did to Ms. Bailey. I saw the photo.” Counsel
argued, however, “We’re not here because of that.” Counsel for Roberts emphasized that
the prosecution had “to convince you beyond a reasonable doubt that he intended to
dissuade her; that he made a criminal threat in L.A. County. It’s her job to prove that.
And I think we presented enough evidence that there is doubt in your head as to whether

9
any criminal threat was ever levied here in California, whether he actually intended for
her to dissuade and discourage her from coming to court.”
As noted, the jury acquitted Roberts on count 1, making a criminal threat at
Cedars. The jury, however, convicted Roberts on count 2, dissuading a witness at
Cedars.

DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion in Responding to the Jury’s
Question Regarding Count 2
Count 2 charged Roberts with intimidating a witness not to report a crime. With
regard to this charge, the trial court instructed the jury in accordance with CALCRIM
No. 2622 as follows:
“The defendant is charged in Count 2 with intimidating a witness. To prove that
the defendant is guilty of this crime, the People must prove that:
“1. The defendant maliciously tried to prevent or discourage Sandra Bailey from
making a report to the police that she was a crime victim;
“2. Sandra Bailey was a crime victim; and
“3. The defendant knew he was trying to prevent or discourage Sandra Bailey
from reporting to the police that she was a crime victim and intended to do so.
“A person acts maliciously when he or she unlawfully intends to annoy, harm, or
injure someone else in any way, or intends to interfere in any way with the orderly
administration of justice.
“A person is a victim if there is reason to believe that a federal or state crime is
being or has been committed or attempted against him or her.
“It is not a defense that the defendant was not successful in preventing or
discouraging the victim.
“It is not a defense that no one was actually physically injured or otherwise
intimidated.”

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 The court also gave the jury the following special instruction about the assault in
Las Vegas: “You have heard evidence that the defendant struck Sandra Bailey in Las
Vegas, Nevada. The defendant is not charged with assault in this case, and you may not
convict him based on the assault. Nor should you speculate why certain charges were
brought in this case while others were not. You may only consider the crimes charged in
this case, and you may only convict the defendant of those crimes if the People have
proven each element of those crimes beyond a reasonable doubt.”
During deliberations the jury sent the trial court the following question: “In
regards to count 2, the instruction states that Sandra Bailey must be ‘a victim of a crime.’
Can the crime be the assault in Las Vegas or must it be the criminal threat in Charge 1?”
Counsel for Roberts argued that, for purposes of the second element of the crime
of witness intimidation, the victim must be a victim of a crime committed in California.
The trial court disagreed, and ultimately responded to the jury’s question by instructing
the jury as follows: “‘Victim’ means any person with respect to whom there is reason to
believe that any crime as defined under the laws of this state or any other state or of the
United States is being or has been perpetrated or attempted to be perpetrated.”
Roberts contends that “the jury was not seeking the definition of victim provided
by the court,” and that the trial court’s response to the jury’s question “failed to address
the fact that in order to convict [him] on count 2, that crime had to have been committed
in California.” Roberts argues that “the jury was inquiring into whether [he] could be
convicted on count 2 based on words spoken in Las Vegas.” This is not a fair reading of
the jury’s question. Nothing in the jury’s question suggests that it had any doubt that the
act of dissuasion alleged in count 2 had to occur in Los Angeles. Rather, the jury’s
question reflected uncertainty regarding whether the assault in Las Vegas could render
Bailey a crime victim within the meaning of the crime charged in count 2. The trial court
answered the question the jury asked.
And the trial court answered it correctly. Section 1138 provides: “After the jury
have retired for deliberation, if there be any disagreement between them as to the
testimony, or if they desire to be informed on any point of law arising in the case, they

11
must require the officer to conduct them into court. Upon being brought into court, the
information required must be given in the presence of, or after notice to, the prosecuting
attorney, and the defendant or his counsel, or after they have been called.” This statutory
provision requires the trial court “‘to clear up any instructional confusion expressed by
the jury.” [Citation.]’ [Citation.] ‘This means the trial “court has a primary duty to help
the jury understand the legal principles it is asked to apply. [Citation.] This does not
mean the court must always elaborate on the standard instructions. Where the original
instructions are themselves full and complete, the court has discretion under . . .
section 1138 to determine what additional explanations are sufficient to satisfy the jury’s
request for information . . . .” [Citation.]’ [Citations.] . . . [S]ection 1138 does not
demand elaboration upon the standard instructions by the trial court when the jury
expresses confusion, but rather directs the court to ‘consider how it can best aid the jury
and decide whether further explanation is desirable, or whether the reiteration of
previously given instructions will suffice.’ [Citation.]” (People v. Yarbrough (2008) 169
Cal.App.4th 303, 316-317.) We review the trial court’s response to a question posed by a
deliberating jury for an abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690,
745-746; People v. Hodges (2013) 213 Cal.App.4th 531, 539.)
For purposes of section 136.1, “‘[v]ictim’ means any natural person with respect
to whom there is reason to believe that any crime as defined under the laws of this state
or any other state or of the United States is being or has been perpetrated or attempted to
be perpetrated.” (§ 136, subd. (3).) The trial court’s answer to the jury’s question was
entirely consistent with this definition and correctly instructed the jury that, with respect
to count 2, the crime of which Bailey was a victim could be the assault that occurred in
Las Vegas or the criminal threat that occurred in Los Angeles and was charged in count
1. Roberts has not shown an abuse of discretion under section 1138. (See People v.
Waidla, supra, 22 Cal.4th at pp. 745-746.)7

7 At sentencing, counsel for Roberts argued that the jury’s verdicts on counts 1 and
2 were inconsistent and that the guilty verdict on count 2 was based on conduct that

12
 B. Roberts Was Not Denied Effective Assistance of Counsel
Roberts contends that he was denied effective assistance of counsel because his
trial counsel failed to ask for a modification of the trial court’s answer to the jury’s
question to clarify that the act of dissuasion charged in count 2 must have occurred in
California.8 “To establish ineffective assistance of counsel, a defendant must show (1)
counsel’s performance was deficient and fell below an objective standard of
reasonableness and (2) it is reasonably probable that a more favorable result would have
been reached absent the deficient performance.” (People v. Jones (2013) 217
Cal.App.4th 735, 746-747, citing Strickland v. Washington (1984) 466 U.S. 668, 687-688
[104 S.Ct. 2052, 80 L.Ed.2d 674].) “A reasonable probability is a ‘probability sufficient
to undermine confidence in the outcome.’ [Citation.]” (Jones, supra, at p. 747, citing
Strickland, supra, at p. 694.) We conclude that Roberts has failed to show that it is
reasonably probable he would not have been convicted on count 2 if his trial counsel had
requested that the trial court include in its answer to the jury’s question a statement that
the act of dissuasion must occur in California. Therefore, we need not decide whether his
trial attorney’s performance was deficient. (See People v. Mercado (2013) 216
Cal.App.4th 67, 81 [“[a]n appellate court ‘need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by the defendant as a

occurred in Las Vegas. The trial court treated counsel for Roberts’ argument as a motion
to dismiss count 2 and denied the motion. The trial court noted that it was “highly,
highly likely” the jury acquitted Roberts on count 1 based on a reasonable doubt that
Bailey was in sustained fear in light of Bailey’s testimony that she was not afraid and her
numerous post-threat attempts to contact Roberts. The trial court noted that perhaps the
instructions could have been clearer and that the court would have clarified the matter
had counsel asked the court to do so. In the trial court’s view, however, the totality of
instructions made it clear that the jury could not convict Roberts on count 2 based on
statements he made in Las Vegas. We agree with the trial court’s assessment of the
instructions.
8 With regard to count 1 alleging criminal threats, the trial court instructed the jury
that the People had to prove, among other things, that “[t]he defendant made the threat
orally in Los Angeles.”

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result of the alleged deficiencies”]; People v. Ortiz (2012) 208 Cal.App.4th 1354, 1373
[absent a showing of prejudice resulting from counsel’s alleged deficient performance,
the reviewing court need not decide “whether his counsel’s performance fell below an
objective standard of reasonableness”].)
The instructions by the trial court, and the opening statements and closing
arguments of counsel, leave no doubt that the sole focus of counts 1 and 2 was the events
that occurred on July 15, 2011 at Cedars. The trial court, the prosecutor, and counsel for
Roberts, all told the jury that counts 1 and 2 were based on conduct that occurred in Los
Angeles. Because our review of the record does not reveal any possible basis that would
have permitted the jury to convict Roberts of count 2 as a result of conduct occurring
anywhere but in Los Angeles, counsel for Roberts’ failure to ask for a modification of the
court’s answer to the jury’s question was not prejudicial. Therefore, Roberts’ has failed
to demonstrate that he was denied effective assistance of counsel.

C. The Trial Court Did Not Abuse Its Discretion in Striking Only Two of
Roberts’ Three Prior Strike Convictions
Prior to sentencing, Roberts filed a motion pursuant to People v. Superior Court
(Romero), supra, 13 Cal.4th 497 asking the trial court to strike all three of his prior strike
convictions pursuant to section 1385. The trial court exercised its discretion to strike two
of his 1981 prior robbery convictions but not the third. Roberts challenges the trial
court’s ruling.
“In ruling on a Romero motion, the trial 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 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. Finney (2012) 204 Cal.App.4th 1034, 1038, quoting People
v. Williams (1998) 17 Cal.4th 148, 161.) “The court’s ruling on a motion to strike is
subject to a deferential abuse of discretion standard of review. [Citation.] A ‘trial court

14
will only abuse its discretion in failing to strike a prior felony conviction allegation in
limited circumstances. For example, an abuse of discretion occurs where the trial court
was not “aware of its discretion” to dismiss [citation], or where the court considered
impermissible factors in declining to dismiss.’ [Citation.] The burden is on the party
challenging the sentence to clearly show the sentence was irrational or arbitrary.
[Citation.] Further, a sentence will not be reversed merely because reasonable people
might disagree. ‘“‘An appellate tribunal is neither authorized nor warranted in
substituting its judgment for the judgment of the trial judge.’”’ [Citation.]” (People v.
Leavel (2012) 203 Cal.App.4th 823, 837.)
The trial court first announced its tentative decision to strike two of Roberts’ three
strikes. The court explained: “And I have carefully considered the entire record before
me and will suggest that this is a close call even for the court to strike two of the three
prior strikes. I have considered the nature of the prior strikes. They are more than 30
years old. The defendant was 19 years old at the time. The priors did arise, it appears to
the court, from a single act. And the court is able to consider that . . . . On the other
hand, there is an aggravating factor in connection with the prior strikes, and that is, as the
court understands it, the defendant was using a weapon at the time, a shotgun, I believe.
And I believe further, that that this is dispositive, but he, in fact, was holding the shotgun.
I also have considered the defendant’s criminal record. In mitigation, the court has
considered . . . that the defendant largely, but not entirely, has led a life free of violent
criminal behavior after the [section] 211. As I say, largely, not entirely. In aggravation,
he continued to engage in criminal conduct, although again, largely, although not
exclusively, nonviolent, drug-related, some misdemeanors, a mix of criminal conduct as
articulated in the People’s opposition. I also am influenced, and probably for this court
the factor that may tilt in favor of striking two of the three strikes is the nature of the
current offense[,] which I find largely in mitigation. The defendant was found not guilty
of the most serious of the charges, the [section] 422. Also, the court has considered the
fact that these charges are violations of [section] 136.1, [subdivision] (a)(1), and the
defense made much of the fact these are wobblers. And the People made, similarly,

15
much of the fact that nonetheless they’re felonies and don’t require use of force or fear.
But in weighing the nature of these offenses, the court does consider the fact that the
defendant did not threaten the victim, Ms. Bailey, not to appear. I had an opportunity,
obviously, to hear those audiotapes, and while there were moments where Mr. Roberts
was angry and frustrated and upset and was more intimidating, I think the best
characterization of all those audiotapes is that he was trying to cajole without raising the
specter of force or fear throughout the entire episode. And so the court has weighed
carefully all of the factors. It is a mixed bag to say the least. The court could go either
way, I think, reasonably on this matter and deny entirely the Romero motion, [and]
sentence him with a three-strike past. The court also reasonably, in my judgment, can
strike two of the strikes. In my view striking all of the strikes would not be appropriate in
light of the weighing that the court has gone through.”
The trial court then heard from Bailey, who stated that she loved Roberts. Bailey
asked for leniency, explaining that she needed Roberts as her caretaker. The court
explained that it could not place Roberts on probation and that he was facing a sentence
of 25 years to life. The court then heard from counsel for Roberts, who agreed that the
court could go either way on the Romero motion and asked the court to run count 4
concurrently with count 2 so that Roberts, who had AIDS, could have a chance of being
released and spending time with Bailey. The prosecutor argued for a full three-strike
sentence. He characterized the trial court’s decision to impose a 13-year term as a gift
and argued that anything less was not justified. The trial court ultimately struck two of
Roberts’ prior strike convictions and determined that its tentative sentence of 13 years
was “reasonable given the totality of the circumstances.”
In ruling on Roberts’ Romero motion, the trial court properly considered all
relevant criteria in deeming Roberts outside the spirit of the three strike scheme in part
and striking two of his prior strikes for robbery. The court was well aware of its
discretion to strike one or more strikes, and there is no indication that the court
considered any impermissible factors in ruling on the motion. There is no basis for

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disturbing the trial court’s exercise of discretion in striking two of Roberts’ three prior
strike convictions.

D. There Is Substantial Evidence That Section 654 Does Not Apply to the Two
Telephone Calls on the Same Day
At sentencing, the trial court mistakenly believed that counts 4, 5, 6, 7, 8, 11, 13,
and 14 charged Roberts with violations of section 136.1, subdivision (a)(1), that occurred
on different days. The court therefore concluded that section 654 did not apply to any of
these counts. Counts 6 and 7, however, were based on telephone calls that Roberts made
to Bailey on the same day, September 28, 2011.
On appeal, Roberts concedes that the telephone calls that occurred on different
days, charged in counts 4, 5, 8, 11, 13, and 14, do “not fall within the purview of section
654 despite the fact that all of these calls were placed in an attempt to try and dissuade
Ms. Bailey from appearing in court.” (See People v. Correa (2012) 54 Cal.4th 331, 334
[“section 654 does not bar multiple punishment for multiple violations of the same
criminal statute”].) Roberts maintains, however, that because counts 6 and 7 charged
violations that occurred on the same day pursuant to the same objective of dissuading
Bailey from testifying, section 654 applies to these two counts, and the trial court should
have stayed the sentence the court imposed on count 7.9 (See People v. Jones (2012) 54
Cal.4th 350, 353 [where section 654 applies to prohibit multiple punishments, the correct
procedure is to impose sentence on each count and stay execution of sentence on the
count to which section 654 applies, rather than impose concurrent sentences].)

9 Roberts’ failure to make this argument in the trial court does not preclude him
from raising it on appeal. (See People v. Brents (2012) 53 Cal.4th 599, 618 [section 654
error is reviewable on appeal absent an objection because it results in an unauthorized
sentence]; People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17 [“the court acts in ‘excess of
its jurisdiction’ and imposes an ‘unauthorized’ sentence when it erroneously stays or fails
to stay execution of a sentence under section 654”]; People v. McCoy (2012) 208
Cal.App.4th 1333, 1338 [failure to object on section 654 grounds in the trial court does
not forfeit the issue on appeal].)

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 Section 654 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. . . .” (Id., subd. (a).) Although section 654
refers to a single act or omission, “[f]ew if any crimes . . . are the result of a single
physical act.” (Neal v. State of California (1960) 55 Cal.2d 11, 19, disapproved on
another ground in People v. Correa, supra, 54 Cal.4th at p. 334.) Therefore, section 654
also applies “‘where a course of conduct violated more than one statute and the problem
was whether it comprised a divisible transaction which could be punished under more
than one statute within the meaning of section 654.’ [Citation.]” (Neal, supra, at p. 19;
see Correa, supra, at p. 335; People v. Rodriguez (2009) 47 Cal.4th 501, 507.) “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.” (Neal, supra, at p. 19; see Correa, supra, at
p. 336; People v. Dydouangphan (2012) 211 Cal.App.4th 772, 780.)
Therefore, section 654 “‘limit[s] punishment for multiple convictions arising out
of either an act or omission or a course of conduct deemed to be indivisible in time, in
those instances wherein the accused entertained a principal objective . . . .’ [Citation.]
But ‘“a course of conduct divisible in time, although directed to one objective, may give
rise to multiple violations and punishment.” [Citation.] “This is particularly so where the
offenses are temporally separated in such a way as to afford the defendant opportunity to
reflect and to renew his or her intent before committing the next one, thereby aggravating
the violation of public security or policy already undertaken.”’ [Citation.]” (People v.
Petronella (2013) 218 Cal.App.4th 945, 963-964; see People v. Kurtenbach (2012) 204
Cal.App.4th 1264, 1289.)
“‘The defendant’s intent and objective present factual questions for the trial court,
and its findings will be upheld if supported by substantial evidence. [Citation.] “We
review the court’s determination of [a defendant’s] ‘separate intents’ for sufficient

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evidence in a light most favorable to the judgment, and presume in support of the court’s
conclusion the existence of every fact the trier of fact could reasonably deduce from the
evidence. [Citation.]” [Citation.]’ [Citation.]” (People v. Petronella, supra, 218
Cal.App.4th at p. 964.) Therefore, we uphold the court’s factual determination that
section 654 did not apply if it is supported by substantial evidence. (People v. Andra
(2007) 156 Cal.App.4th 638, 640-641; see People v. Kurtenbach, supra, 204 Cal.App.4th
at p. 1289 [“‘[t]he determination of whether there was more than one objective is a
factual determination, which will not be reversed on appeal unless unsupported by the
evidence presented at trial’”].)
Although the two telephone calls charged in counts 6 and 7 occurred on the same
day, there is substantial evidence that the two calls were divisible in time and temporally
separated. The transcriptions of the calls contain considerable redacted portions of the
conversations between Roberts and Bailey that did not relate to Bailey’s court testimony,
and show that some amount of time had elapsed (and some discussion of other topics had
occurred) between Roberts’ two acts of dissuasion that day. The transcription of the first
call ends with a redacted portion, suggesting that whatever Roberts and Bailey were
talking about before their first conversation ended had no bearing on the charges against
Roberts. Contrary to Roberts’ assertion, there is no indication in the transcriptions of the
two calls, or anywhere else in the record, that the second call (count 7) occurred “shortly
after” and “almost immediately” following the first call (count 6). Thus, there is
substantial evidence, considered in the “‘“light most favorable to the judgment,”’” that
Roberts’ two acts of telephonic dissuasion on September 28, 2011 were “‘“temporally
separated,”’” and that after the first act of dissuasion Roberts had the “‘“opportunity to
reflect and to renew his . . . intent before committing the next one . . . .”’” (People v.
Petronella, supra, 218 Cal.App.4th at p. 964.)

E. The Minute Order and Abstract of Judgment Must Be Corrected
During the oral pronouncement of sentence, the trial court enhanced Roberts’
sentence by five years pursuant to section 667, subdivision (a). The trial court’s minute

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order of the sentencing hearing and the abstract of judgment incorrectly reflect that the
trial court enhanced Roberts’ sentence by five years pursuant to section 667.5,
subdivision (b). Roberts contends, and the People concede, the minute order and abstract
of judgment must be corrected. We agree and will order the trial court to do so. (See
People v. Myles (2012) 53 Cal.4th 1181, 1222, fn. 14 [“[w]hen an abstract of judgment
does not accurately reflect the trial judge’s oral pronouncement of sentence, this court has
the inherent power to correct such an error, either on our own motion or at the parties’
behest”]; People v. Wahidi (2013) 222 Cal.App.4th 802, 804, fn. 1 [“[t]he parties agree
the abstract of judgment contains clerical errors, which we order corrected”], petn. for
review pending, petn. filed Feb. 3, 2014, S216255.)

DISPOSITION

The judgment is affirmed as corrected. The trial court is directed to prepare a
corrected minute order and abstract of judgment reflecting that the five-year enhancement
was imposed pursuant to section 667, subdivision (a), and to forward a copy to the
Department of Corrections and Rehabilitation.

SEGAL, J.*

We concur:

PERLUSS, P. J. ZELON, J.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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