People v. Rush CA6

Filed 11/9/20 P. v. Rush CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H045678
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1764145)

v.

PERRY J. RUSH,

Defendant and Appellant.

Following a trial, a jury found defendant Perry J. Rush guilty of assault with a
deadly weapon other than a firearm (Pen. Code, § 245, subd. (a)(1))1 (245(a)(1))
(count 1) and battery with infliction of serious bodily injury (§ 243, subd. (d)) (243(d))
(count 2). As to each count, the jury found true the allegation that in the commission of
the crime, defendant personally inflicted great bodily injury upon the victim, D.M.,
within the meaning of sections 12022.7, subdivision (a) (12022.7(a)) and 1203,
subdivision (e)(3).
On appeal, defendant argues that (1) his trial counsel rendered ineffective
assistance of counsel by telling the jury in his opening statement that defendant would
testify at trial but then, without the occurrence of any unforeseeable events, not
presenting defendant’s testimony; (2) the trial court violated section 654 by imposing a
sentence on count 2 and not staying the punishment; and (3) the enhancement imposed
under section 12022.7(a) must be stricken because such enhancement does not apply

1
All further statutory references are to the Penal Code.
where “infliction of great bodily injury is an element of the offense” (§ 12022.7,
subd. (g)) and “great bodily injury” is an element of battery with infliction of serious
bodily injury (§ 243(d)).
Defendant has not established his claim of ineffective assistance of counsel. In
addition, although the People concede sentencing error, the record does not actually
reflect that the trial court orally pronounced sentence on any count of which defendant
was found guilty and the associated enhancement allegations found true by the jury.
Accordingly, we reverse with directions for the trial court to clarify whether it intended to
pronounce sentence and suspend execution of sentence and if that was the court’s intent,
to properly orally pronounce sentence.
I
Procedural History
By information, defendant was charged with committing two counts of felony
assault upon D.M. on May 21, 2017: assault with a deadly weapon and instrument other
than a firearm, namely a hammer and a “pool cue stick” (count 1) (§ 245(a)(1)) and
assault by means of force likely to produce great bodily injury (count 2) (§ 245,
subd. (a)(4)). The information further alleged as to each count that in the commission or
attempted commission of the offense, defendant personally inflicted great bodily injury
upon D.M., a person not an accomplice to the offense, within the meaning of
sections 12022.7(a), and 1203, subdivision (e)(3).
A first amended complaint was filed on November 21, 2017. The reference to a
hammer in count 1 was omitted, so that defendant was charged with committing felony
“assault . . . with a deadly weapon and instrument other than a firearm, a pool stick”
(§ 245(a)(1)). Count 2 was amended to charge felony battery with infliction of serious
bodily injury (§§ 242, 243(d)). An allegation of personal infliction of great bodily injury
was attached to each count (see §§ 12022.7(a), 1203, subd. (e)(3)).

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 Following a trial, the jury found defendant guilty of both counts, and it found the
associated enhancement allegations to be true. Under section 245(a)(1), “[a]ny person
who commits an assault upon the person of another with a deadly weapon or instrument
other than a firearm shall be punished by imprisonment in the state prison for two, three,
or four years, or in a county jail for not exceeding one year, or by a fine not exceeding
ten thousand dollars ($10,000), or by both the fine and imprisonment.” Under
section 243(d), “[w]hen a battery is committed against any person and serious bodily
injury is inflicted on the person, the battery is punishable by imprisonment in a county
jail not exceeding one year or imprisonment pursuant to subdivision (h) of [s]ection 1170
for two, three, or four years.” Section 12022.7(a), provides: “Any person who
personally inflicts great bodily injury on any person other than an accomplice in the
commission of a felony or attempted felony shall be punished by an additional and
consecutive term of imprisonment in the state prison for three years.” (Italics added.)
The probation report prepared for sentencing confusingly recommended that the
court commit defendant to the California Department of Corrections and Rehabilitation
for eight years and suspend execution of the sentence and that the court suspend
imposition of sentence and place defendant on formal probation for three years. The
report suggested a six-year term for count 1 and its associated enhancement, consisting of
a middle term of three years (§ 245(a)(1)) and a consecutive three-year enhancement term
(§ 12022.7(a)). The report also suggested that the court impose a consecutive two-year
term on count 2 and its associated enhancement, but it did not separately specify a
recommended term for count 2 or its enhancement. The report further stated: “This
officer recommends the midterm sentence of three years state prison as to [c]ount one,
with the enhancement of three (3) years for personally inflict[ing] great bodily injury to
be imposed. . . . [C]onsecutive sentencing is further recommended as to [c]ount [t]wo,
along with the enhancement for personally inflict[ing] great bodily injury to be imposed,
for a total of eight (8) years.” The report did not discuss section 654.

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 At the sentencing hearing on January 19, 2019, the trial court indicated that
“the suspension of the state prison sentence accomplishes more of what the Court wishes
to accomplish here, which is that Mr. Rush needs to get on top of the anger issues that led
to this incident.” The court stated that it was going to impose the midterm because the
victim’s injuries were serious, but it did not specify the count or conviction. The court
stated: “The defendant is committed to the California Department of Corrections and
Rehabilitation for a period of eight years. The execution of said sentence is suspended.
Imposition of sentence [is] suspended, formal probation is granted for a period of
three years.” It further stated with regard to probation: “A county jail sentence is
imposed as follows: As to Count 1, the defendant will serve one year in the county jail;
as to Count 2 the defendant will serve . . . one year in the county jail, those counts will
run consecutive to one another.”
At the January 19, 2018 sentencing hearing, the court did not separately impose
terms of imprisonment on each count and its associated enhancement or expressly state
whether any sentence ran concurrently or consecutively. Neither did the court mention
section 654’s proscription against multiple punishment.
II
Evidence
Number One Broadway was a bar on the top floor of a two-story building on the
corner of South Santa Cruz Avenue and Broadway in Los Gatos. Its front entrance was
located off South Santa Cruz Avenue. An exterior balcony, accessible by patrons of the
bar, wrapped around the outside of the bar.
Number One Broadway had live music and dancing on weekends. The bar had a
pool table near a rear exit, which opened onto the balcony. G.A. worked weekends as a
bouncer at the bar, and he had a different weekday job. At the time of trial, G.A. had
worked at Number One Broadway for close to 13 years. G.A. knew defendant as a
regular at the bar.

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 On the evening of May 20, 2017, the bar was three-quarters full and people were
dancing. G.A. recalled that defendant arrived shortly before 10:00 p.m. At some point,
the bouncer’s attention was drawn to defendant and another man, D.M. The men were
staring at each other, and defendant appeared angry and was pointing. D.M. was
shrugging his shoulders. People were moving away from them. The bouncer approached
them and “asked, ‘What’s the problem?’ ” Defendant complained that D.M. had been
bumping into him all night, and he wanted the bouncer to do something about it. At trial,
the bouncer testified that it was common for people to bump into each other on the dance
floor but that he had not personally seen D.M. bump into defendant.
On the night of the incident, the bouncer asked D.M. to give defendant some
“distance,” and D.M. backed off. Defendant went toward the pool table and stood there.
The bouncer told defendant to “just leave it alone.” But defendant “continued to wave at
[D.M.] with his hands saying, come over here.” The bouncer discouraged D.M. from
walking across the room to defendant. Sometime later, the bouncer noticed D.M.
walking across the dance floor toward defendant, and the bouncer followed. Defendant
and D.M. headed to the rear exit. Defendant walked out first, and D.M. followed.
Watching out a window, the bouncer saw the two men on the balcony; defendant
had a pool stick in his hand. He could not hear what was being said, if anything. The
bouncer witnessed defendant turn and raise the pool stick. As the stick was being raised,
D.M. began to back up and raise his arm to block it. Defendant struck D.M. on the left
forearm with the center of the stick. At trial, the bouncer testified that based on “the arc”
of the pool stick, it appeared that the stick would have struck the center of D.M.’s head if
he had not blocked it.
The bouncer, who was out on the balcony by this point, took the pool stick from
defendant. The stick belonged to the bar, and the bouncer believed it was made of oak
wood or some other hardwood. The bouncer testified that defendant had seemed upset
and that D.M. had looked confused. Although at the time it did not appear to the bouncer

5
that D.M. needed immediate medical attention, D.M. was holding his arm. At trial, the
bouncer testified that defendant had been “the aggressor.”
The bouncer told both men to leave, and he had them go out by different doors.
Defendant went out the rear, and D.M. left through the front.
Later that night, the bouncer discussed the incident with police. At a subsequent
time, he spoke with Detective James Wiens.
At trial, D.M. testified that on May 20, 2017, he arrived at Number One Broadway
at 9:30 p.m. While D.M. was dancing, another man on the dance floor, identified at trial
as defendant, complained that D.M. had bumped into him. D.M. testified that he
apologized and said that he was “just there to have a good time.” Defendant was “still
angry” and argumentative, and he complained about D.M. bumping into him. This initial
encounter ended when the bouncer intervened. At trial, D.M. admitted that on the dance
floor, he had bumped into defendant once or twice and that he had probably bumped into
others.
D.M. acknowledged that later that night, he had gone out through the bar’s rear
door near the pool table. D.M. indicated that defendant had not gestured for him, or
otherwise encouraged him, to come out onto the balcony. D.M. denied that when he
went out onto the balcony, he was mad at defendant or trying to fight defendant.
D.M. testified that when he went outside, defendant immediately “swung a pool
stick” at his head, and he raised his arm to block it. According to D.M., the stick struck
his forearm and the side of his neck, but most of the force landed on his arm. D.M.
described the resulting arm pain as “very painful” and a “10” on a pain scale of one to 10,
with 10 being the worst pain he had felt in his whole life. The bouncer told them both to
leave, and he sent them out by separate doors.
D.M. testified that he complied, and after leaving the bar through the front door,
he walked down Santa Cruz Avenue toward his car. D.M. recalled hearing someone
talking, but testified that he did not hear the words said or see anyone. According to

6
D.M., when he turned his head, he saw defendant approximately 50 feet away, standing
in front of his pickup truck. Its door was open. As D.M. walked over to defendant’s
truck, defendant was looking directly at D.M. At trial, D.M. testified that the truck had
been parked on the corner where Number One Broadway was located, beneath the bar’s
balcony, toward the back of the building. According to D.M., at that time he approached
defendant, he believed that defendant was going to apologize to him.
But in fact defendant was still angry about D.M. bumping into him, and defendant
began arguing with D.M. They began to scuffle and grab each other in front of
defendant’s pickup truck. According to D.M., they accidently fell “halfway” into the
truck. But D.M. conceded that it had been his “force” that had caused them to fall.
Defendant had fallen backward into the truck, and D.M. had fallen partially on top of
defendant.
At trial, D.M. initially testified that after they fell into the truck, defendant hit him
with his fist, and then D.M. hit defendant back with his free right hand. But later, D.M.
admitted that at the preliminary hearing he had been unable to recall who had hit whom
first and that he still did not specifically recall defendant hitting him first. D.M.
acknowledged that during this confrontation, he hit defendant three or four times in the
face. Defendant repeatedly hit D.M.’s head with “a metal object that looked like a
hammer.” D.M. became scared and ran across the street to a park. At trial, D.M.
maintained that there was no possibility that his left arm had been injured by the hammer
rather than the pool stick.
On cross-examination, D.M. admitted that on the night of the incident, he had had
approximately four vodka sodas. He conceded that he had “some memory problems”
concerning that night.
After the clash with defendant, D.M. called his former girlfriend—with whom he
later reconciled—and asked her to pick him up. He did not call police and report an

7
assault. But he was not surprised when the police showed up since he was “bleeding
severely” and he figured somebody would call the police.
At approximately 12:16 a.m. on May 21, 2017, Frank Bazzar, an officer with the
Town of Los Gatos, was dispatched to a park, which was across the street from Number
One Broadway. It was the officer’s understanding that defendant’s girlfriend had called
the police.
When Officer Bazzar found D.M. wandering in the park, he activated his body
camera. The officer had D.M., who appeared to be in pain, sit down. The officer noticed
several lumps on D.M.’s head. D.M. was bleeding from several small cuts on his head,
and the blood was dripping down his face and onto his shirt, arms, and pants. D.M. was
“babying his left arm.” Officer Bazzar took a statement from D.M. while he was being
treated by paramedics, who also had been dispatched to the park. D.M. was taken to
Valley Medical Center for further treatment.
Defendant was identified as a potential suspect by police. Officer Bazzar called
defendant’s phone number, and when someone answered, he identified himself as a
police officer and said he wished to speak with defendant. There was silence, and then
the call was disconnected. Officer Bazzar then called again, and the call went straight to
voicemail.
Officer Bazzar testified that he located blood in the first parking stall in the alley
behind Number One Broadway and followed the trail along the sidewalk on Broadway to
the corner of Broadway and Santa Cruz and across the street. He noticed a pool of blood
but then lost the trail. On his next shift, Officer Bazzar located D.M.’s car, which was
parked on the “west curb line” of South Santa Cruz Avenue, pointing southbound
towards Number One Broadway, near 20 South Santa Cruz Avenue. The car was parked
roughly 125 feet to the north of Number One Broadway’s entrance.
Detective Wiens, who was assigned to investigate the assault at Number One
Broadway, went to Valley Medical Center, where he took a statement from D.M., who

8
was in a hospital bed and heavily medicated. D.M. indicated that he had been confronted
by a man on the dance floor after he had bumped into the man, and they had been
separated. D.M. told the officer that he had gone outside, where the man had hit him
once with a pool stick, striking his arm and neck. D.M. told the officer that after that, the
man and he were ejected from the bar. D.M. indicated that he then encountered the same
man outside the bar, and a scuffle had ensued. The man had reportedly hit D.M. in the
head multiple times with “a metal object similar to a hammer.”
Detective Wiens had conducted a follow-up interview with the bouncer. The
bouncer told the officer that he had “seen them arguing on the dance floor,” and he had
“split them up.” D.M. had seemed dumbfounded by the situation; he had apologized and
said, “[H]ey, you know, I’m just here to have a good time.” The bouncer also told the
officer that he had seen defendant standing at the pool table and gesturing for or taunting
D.M. to come and fight. The bouncer had seen D.M. walking toward defendant and then
the two of them go outside. He had then seen defendant strike D.M. with a pool stick.
The bouncer had gone outside, taken the pool stick from defendant, and broken them up.
The bouncer told Detective Wiens that defendant had been “the dominant aggressor.”
Dr. Tiffany Chao, a general and trauma surgeon at Santa Clara Valley Medical
Center, treated D.M. when she came into work on the morning of May 21, 2017. It was
her understanding that D.M. had come in with scalp lacerations, a broken nose, and a
broken arm and that he had been hit on the head with a hammer and on the arm with a
pool stick. X-rays revealed a broken ulna, which is a forearm bone. It had been broken
transversely. This type of fracture generally occurs “when someone’s arm is over [his or
her] head and . . . then [an] item comes across it.” A CT scan showed a hematoma in his
right scalp and a broken left nasal bone.

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 III
Discussion
A. Alleged Ineffective Assistance of Counsel: Promise Made in Opening Statement
1. Background
During his opening statement on November 28, 2017, defense counsel said in part,
“[T]he evidence will show that [D.M.] was dishonest when he told the police that my
client came around and hit him with a hammer. But, in fact, what he did, he walked all
the way around. He punched my guy in the jaw. And he had to have surgery on that
jaw. . . . Mr. Rush is gonna testify to this. Mr. Rush will testify. . . . And he’ll tell you
what happened. He’ll tell you that he was punched violently in the jaw, knocked back
into his vehicle, and pummeled -- pummeled by [D.M.].” Defense counsel asserted that
“[t]his was a violent fight that was initiated by [D.M.].” Defense counsel indicated that
defendant would state that “[h]e was in a bar where there was an unprovoked attack.”
Defense counsel told the jury, “[I]t will be clear to you that anything Mr. Rush did this
night was self-defense,” and “it will be clear to you based on those facts that there’s only
one verdict you’ll be able to reach in this case, and that verdict will be not guilty.”
After the prosecution called its final witness in its case-in-chief, and outside the
jury’s presence, the court discussed various matters with counsel and denied defense
counsel’s section 1118.1 motion. The trial court spoke with counsel and defendant about
defendant’s decision whether to testify.
The trial court reminded defendant that he had a constitutional right to testify and
a separate constitutional right not to testify and to remain silent. On the record, the trial
court reported that there had been an off-the-record conference on jury instructions.
The trial court stated that defense counsel had informed the court that he would be
requesting a self-defense instruction and that the court had indicated it was disinclined to
grant such a request because it did not see any evidence to support such instruction.
Defense counsel had said that he wanted to speak with defendant “specifically about that

10
in terms of [defendant’s] analysis and decision to testify.” When then questioned by the
court on the record, defense counsel indicated that he had had an “adequate opportunity
to discuss the self-defense issue, as well as any other potential issues with respect to [his]
client’s right to testify or not testify.” Defense counsel said that he was deferring to
defendant “in terms of how he feels about [testifying].” In response to the court’s
questions, defendant indicated that he had had an opportunity to think about exercising
one of those constitutional rights and speak to his counsel and that his decision was “[n]ot
to testify.”
In the presence of the jury, the prosecution rested its case. The trial court asked
defense counsel whether he had any evidence or witnesses that he wished to present.
Defendant counsel stated, “Your Honor, in spite of my comments in opening argument,
the Defense has decided to rely on the state of the evidence as it exists, and we will rest.”
In closing argument, the prosecutor said among other things, “[T]here’s a very
good reason the judge told you at the very begin[ning], before we stood up for opening
statements, that [what] the attorneys say is not evidence because we can get up and say
anything we want.” He said, “[The] trial itself is where the rubber meets the road and all
of the evidence comes out.” He pointed out that “the Defense ha[d] the same subpoena
power as [he did.]”
Defense counsel responded in his closing argument. He said, “I’m not as good
[as] I used to be. I’m getting to that age where I’m slipping.” He acknowledged, “I made
some mistakes. Some things got by me.” He told the jury, “Like [the prosecutor is]
saying, in opening argument you were misled. Hey, I should not have said my client was
going to testify. What I should have said is, my client will testify if [the prosecutor]
makes a case. Because I have an absolute right to rely on the state of the evidence, and I
had to the fight the urge to go for a knockout and take the decision.” Defense counsel
also told jury, “But you can’t blame what I say on my client. And nothing we say is
evidence.”

11
 In closing argument, defense counsel also reminded the jury that the prosecution
had the burden of proving defendant’s guilt beyond a reasonable doubt, that the defense
had no burden of proof, and that defendant was presumed innocent. Defense counsel
emphatically faulted himself for promising that defendant would testify, and he stressed
that defendant had “an absolute constitutional right not to testify.” He suggested that the
defense case “came in through the district attorney.” He argued that the prosecutor
“brought in the photos of my client injured through the officer [who testified].”
During rebuttal, the prosecutor stated, “I want to be clear when I talk about what
defense counsel promised in opening. I’m talking about the things he said about the
defendant’s injuries. I am not . . . commenting on his failure to take the stand. That’s
completely his right. And I won’t say a word about that. You shouldn’t consider that
one way or another.”
2. Governing Law
The standard for evaluating a claim of ineffective assistance of counsel is well
established. It requires a two-prong showing of deficient performance and resulting
prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) “Failure to
make the required showing of either deficient performance or sufficient prejudice defeats
the ineffectiveness claim.” (Id. at p. 700.)
As to deficient performance, a defendant “must show that counsel’s representation
fell below an objective standard of reasonableness” measured against “prevailing
professional norms.” (Strickland, supra, 466 U.S. at p. 688.) “Judicial scrutiny of
counsel’s performance must be highly deferential.” (Id. at p. 689.)
“On direct appeal, a conviction will be reversed for ineffective assistance only if
(1) the record affirmatively discloses counsel had no rational tactical purpose for the
challenged act or omission, (2) counsel was asked for a reason and failed to provide one,
or (3) there simply could be no satisfactory explanation. All other claims of ineffective
assistance are more appropriately resolved in a habeas corpus proceeding. [Citations.]”

12
(People v. Mai (2013) 57 Cal.4th 986, 1009, italics added.) Usually, “[a] claim of
ineffective assistance [of counsel] . . . is more appropriately decided in a habeas corpus
proceeding. [Citations.]” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
The prejudice prong requires a defendant to show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” (Strickland, supra, 466 U.S. at p. 694.) “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” (Ibid.)
“It is not enough ‘to show that the errors had some conceivable effect on the outcome of
the proceeding.’ [Citation.] Counsel’s errors must be ‘so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.’ [Citation.]” (Harrington v.
Richter (2011) 562 U.S. 86, 104 (Harrington).)
3. Analysis
a. Alleged Deficient Performance
The appellate record in this case sheds little light on defense counsel’s interactions
with defendant outside the record, including counsel’s advice to defendant about
testifying at trial at any given time or defendant’s own thinking on whether he should
testify prior to ultimately telling the court that he had decided not to testify. Defense
counsel’s opening statement must be evaluated deferentially, based on what he knew or
reasonably should have known at the time. (See Strickland, supra, 466 U.S. at pp. 688
[“defendant must show that counsel’s representation fell below an objective standard of
reasonableness”], 689 [“Judicial scrutiny of counsel’s performance must be highly
deferential.”], 690 [counsel’s acts or omissions must be considered “in light of all the
circumstances”]; see In re Thomas (2006) 37 Cal.4th 1249, 1257 [“We consider counsel’s
performance from his perspective, analyzing counsel’s decisions based on what he knew
or should have known at the time. [Citations.]”].)
“Counsel was entitled to formulate a strategy that was reasonable at the time . . . .”
(Harrington, supra, 562 U.S. at p. 107.) “A fair assessment of attorney performance

13
requires that every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.” (Strickland, supra, 466 U.S. at p. 689.)
“[A] court must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” (Ibid.)
“The reasonableness of counsel’s actions may be determined or substantially
influenced by the defendant’s own statements or actions. Counsel’s actions are usually
based, quite properly, on informed strategic choices made by the defendant and on
information supplied by the defendant.” (Strickland, supra, 466 U.S. at p. 691.) For
example, “[a] defendant in a criminal case has the right to testify in his or her own behalf.
[Citations.] The defendant may exercise the right to testify over the objection of, and
contrary to the advice of, defense counsel. [Citations.]” (People v. Bradford (1997) 15
Cal.4th 1229, 1332; see Harris v. New York (1971) 401 U.S. 222, 225 [“Every criminal
defendant is privileged to testify in his own defense, or to refuse to do so”].) A counsel’s
“strategic choices made after thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable.” (Strickland, supra, 466 U.S. at p. 690.)
In People v. Frye (1998) 18 Cal.4th 894 (Frye), disapproved on another point in
People v. Doolin (2009) 45 Cal.4th 390, 421, the defendant argued that his counsel was
“ineffective for failing to deliver on two promises made to the jury during the opening
statement.” (Frye, supra, at p. 983.) One of those promises was that “defendant would
testify and wanted to take the witness stand to tell what he remembered.” (Ibid.) The
other promise was that a neurologist and a psychologist would testify that “defendant
suffered neurological and psychiatric impairments affecting his ability to recapture
memory and process words.” (Ibid.)
On the record before it in Frye, the Supreme Court could not conclude that trial
counsel had acted deficiently by ultimately “advising [the] defendant against taking the
witness stand notwithstanding having told the jury in opening statement that defendant

14
would testify.” (Frye, supra, 18 Cal.4th at p. 983.) The court found that “[i]n light of
[the] defendant’s initial desire and willingness to testify, counsel’s statement was an
appropriate exercise of his decisionmaking responsibilities at trial. (Cf. People v. Hines
(1997) 15 Cal.4th 997, 1032 [counsel not ineffective for informing jury during opening
statement defendant would testify, given defendant’s indication to counsel of willingness
to do so].)” (Id. at pp. 983-984.) The court determined that “counsel’s [subsequent]
advice against testifying also fell within the realm of tactical considerations” because
“[a]s the trial progressed,” “counsel observed [the] defendant’s increasing inability to
remember.” (Id. at p. 984.)
In this case, defendant may have given an account to his counsel consistent with a
claim of self-defense and expressed his willingness and desire to testify. The testimony
adduced at trial and the trial court’s stance on giving a self-defense instruction may have
reasonably altered defense counsel’s advice.
In People v. Burnett (2003) 110 Cal.App.4th 868 (Burnett), a case that came
before this court, the defendant was convicted of felony animal cruelty. (Id. at p. 873.)
After a “driver behind [the defendant] tapped his car with her bumper, [the defendant]
snatched [the driver’s] little white dog . . . out of her car and threw him onto a crowded
roadway where he was run over by a minivan and killed.” (Id. at p. 870.) On appeal, the
defendant claimed, among other things, that “defense counsel was ineffective . . . for
failing to call [the] defendant to testify after promising that he would in his opening
statement.” (Id. at p. 883.)
In Burnett, this court recognized that “[m]aking promises about the defense
evidence in opening statement and then failing to deliver does not constitute ineffective
assistance per se.” (Burnett, supra, 110 Cal.App.4th at p. 885.) We described the
circumstances in that case: “[The] [d]efendant apparently led defense counsel to believe
that [a dog] bit him and his tooth snagged on [the] defendant’s finger. When all of the
witnesses testified that this did not happen, including the only defense witness . . . whom

15
defense counsel told the jury he expected to corroborate the testimony of defendant but
who instead testified consistently with prosecution witnesses, defense counsel was
compelled to change course.” (Id. at p. 884.) We reasoned that it was “not defense
counsel’s fault that defendant lied to him” (ibid.) or that counsel “told the jury that he
would present evidence which, apparently during the course of the trial, he discovered
was a lie.” (Id. at pp. 884-885.) We concluded that “[c]ounsel’s advice ‘was an
appropriate exercise of his decisionmaking responsibilities at trial.’ [Citation.]” (Id. at
p. 885.)
As defendant notes, some federal courts have held that a defense counsel rendered
ineffective assistance by promising evidence in an opening statement and then failing to
deliver at trial. (See, e.g., United States ex rel. Hampton v. Leibach (7th Cir. 2003) 347
F.3d 219, 258; Ouber v. Guarino (1st Cir. 2002) 293 F.3d 19, 27.) But counsel does not
invariably render ineffective assistance by making such a promise. Moreover, the results
reached in other cases do not dictate the outcome here. We assess whether a counsel’s
conduct amounts to deficient performance on a case-by-case basis. (People v. Stanley
(2006) 39 Cal.4th 913, 955 (Stanley).) Further, “[t]he question is whether an attorney’s
representation amounted to incompetence under ‘prevailing professional norms,’ not
whether it deviated from best practices . . . . [Citation.]” (Harrington, supra, 562 U.S. at
p. 105.)
Here, defendant claims that “reasonably competent counsel would not have
promised his client’s testimony and then failed to present it.” Defendant acknowledges
that “ ‘unexpected developments’ during a trial may justify changes in [a counsel’s]
previously announced trial strategies.” But defendant asserts that in this case defense
counsel “should have realized the folly of committing to [defendant’s testifying in] an
opening statement” and “should have anticipated” that the prosecutor would emphasize
any broken promise during closing argument. Defendant suggests that defense counsel’s
promise of his testimony and the subsequent failure to present such testimony were not

16
justified by some intervening “unforeseeable event.” He maintains that there was “no
plausible tactical explanation” for defense counsel giving “an opening statement
promising to present [defendant’s] version of the events before [counsel] had resolved . . .
whether [defendant] was going to testify.” We are not persuaded by this reasoning,
which we find faulty.
In this case, some trial testimony turned out to be favorable to defendant. There
was evidence that D.M. had bumped into defendant and that D.M. had been told by the
bouncer to distance himself from defendant. Nevertheless, D.M. had followed defendant
out onto the bar’s balcony. D.M.’s own testimony had debunked the idea that after
defendant and D.M. had been ejected from Number One Broadway, defendant had
pursued and attacked D.M. with a hammer as D.M. walked to his car. Rather, D.M.
admitted that it was he who had approached defendant, who had been merely standing in
front of his truck. D.M. also acknowledged that after he approached defendant, a scuffle
ensued. D.M. indicated at trial that his own force had caused them to fall into the truck
and that he had ended up partially on top of defendant. D.M. ultimately conceded at trial
that he was unsure who punched first. D.M. admitted that he had been drinking and that
he had trouble remembering what happened the night of the incident. Officer Bazzar
described the blood evidence as beginning in the first parking stall in the alley behind
Number One Broadway. D.M.’s car was parked to the north of the bar on South Santa
Cruz Avenue. On the other hand, the eyewitness testimony of the bar’s bouncer seems to
have likely eliminated any viable claim of self-defense to the pool stick incident.
The actual evidence adduced appears to have diminished the potential benefit of
defendant taking the stand. (Cf. Pray v. Farwell (9th Cir. 2015) 620 Fed.Appx. 561,
562-564.) In addition, the trial court stated that it was disinclined to give a self-defense
instruction. Those were intervening events that may have affected defense counsel’s
calculus concerning the potential value and downsides of defendant’s possible testimony
and defendant’s willingness and desire to testify.

17
 Defendant ultimately told the court that he had decided not to testify. As the
People suggest, it is conceivable that defense counsel had a valid tactical reason for
initially indicating in his opening statement that defendant would testify and for later
advising him against testifying, assuming that was in fact what occurred. Although in
closing argument defense counsel took the blame for indicating that defendant would
testify, those remarks do not conclusively establish ineffective assistance of counsel.
Defense counsel also strongly suggested in closing argument that the prosecution had not
proved its case, which it made it unnecessary to call defendant. The court’s instructions
and defense counsel’s closing argument made it clear to the jury that defendant had the
absolute constitutional right not to testify.
A fatal flaw in defendant’s analysis is that he has not demonstrated deficient
performance on direct appeal by establishing that (1) the record affirmatively discloses
that his counsel had no rational tactical reasons for telling the jury that defendant would
testify at trial but then not presenting his testimony; (2) defense counsel was asked for an
explanation of his conduct but gave no reason; or (3) under the circumstances of this
case, there simply could have been no satisfactory explanation for counsel’s conduct.
“[C]ertain practical constraints make it more difficult to address ineffective assistance
claims on direct appeal rather than in the context of a habeas corpus proceeding.
[Citations.] The record on appeal may not explain why counsel chose to act as he or she
did. Under those circumstances, a reviewing court has no basis on which to determine
whether counsel had a legitimate reason for making a particular decision, or whether
counsel’s actions or failure to take certain actions were objectively unreasonable.
[Citation.]” (People v. Mickel (2016) 2 Cal.5th 181, 198.) “Rarely is ineffective
assistance of counsel established on appeal since the record usually sheds no light on
counsel’s reasons for action or inaction. [Citation.]” (People v. Woodruff (2018) 5
Cal.5th 697, 736.) This is not one of those rare instances where deficient performance is
established by the record on appeal.

18
b. Inadequate Showing of Prejudice
Defendant argues that his counsel’s deficient performance was prejudicial because
“[w]hen [his] second version [of what happened] never materialized, the jury inevitably
concluded that, in fact, there was no alternate version of the events that took place, and
that [D.M.’s] version was essentially correct.” “As with all applications of the Strickland
test, the question whether a given defendant has made the requisite showing [of
prejudice] will turn on the facts of a particular case. [Citation.]” (Roe v. Flores-Ortega
(2000) 528 U.S. 470, 485.)
“In assessing prejudice under Strickland, the question is not whether a court can be
certain counsel’s performance had no effect on the outcome or whether it is possible a
reasonable doubt might have been established if counsel acted differently. [Citations.]
Instead, Strickland asks whether it is ‘reasonably likely’ the result would have been
different. [Citation.] This does not require a showing that counsel’s actions ‘more likely
than not altered the outcome,’ but the difference between Strickland’s prejudice standard
and a more-probable-than-not standard is slight and matters ‘only in the rarest case.’
[Citation.] The likelihood of a different result must be substantial, not just conceivable.
[Citation.]” (Harrington, supra, 562 U.S. 86, 111-112.)
In Stanley, the California Supreme Court stated: “Whether the failure to produce a
promised witness amounts to ineffective assistance of counsel is a fact-based
determination that must be assessed on a case-by-case basis. [Citation.] Forgoing the
presentation of testimony or evidence promised in an opening statement can be a
reasonable tactical decision, depending on the circumstances of the case. [Citations.]”
(Stanley, supra, 39 Cal.4th at p. 955.) In Stanley, a jury convicted the defendant of first
degree murder, attempted murder, and six robberies, and it found true a robbery-murder
special circumstance and allegations of personal use of a deadly weapon (knife). (Id. at
p. 919.) The defendant “fault[ed] his counsel for failing to follow through on a
representation made in his opening statement to present the testimony of an Oakland

19
police officer regarding the robbery of another cab driver that allegedly was committed in
[the] defendant’s neighborhood, by someone matching his description, while he was in
custody.” (Id. at pp. 954-955.)
The Supreme Court concluded in Stanley: “On this record, even were we to
conclude counsel’s failure to present the witness and testimony described in his opening
statement had no tactical justification and fell below the normal range of competency, we
would find such error nonprejudicial. [Citation.] There is no reason to assume the jury
necessarily concluded counsel was unable to produce the witness, or that the failure to
produce the witness meant defendant was the only possible suspect in the robberies . . . ,
or that the jury indeed based its guilty verdicts on the failure of the defense to produce the
witness, contrary to the instructions they were sworn to follow.” (Stanley, supra, 39
Cal.4th at p. 955.) Similarly, in this case, defendant has not demonstrated that prejudice
resulted from his defense counsel’s opening statement.
At the beginning of the trial, the trial court gave the jury some initial instructions.
The court told the jury, among other things, that “[y]our verdict must be based only on
the evidence presented during trial in this court and the law as I provide it to you.”
It instructed in part: “A defendant in a criminal case is presumed to be innocent. This
presumption requires that the People prove a defendant guilty beyond a reasonable
doubt. . . . [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding
conviction that the charge is true. . . . In deciding whether the People have proved their
case beyond a reasonable doubt, you must impartially compare and consider all of the
evidence that was received throughout the entire trial. Unless the evidence proves the
defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must
find him not guilty.” The court told the jury: “You must decide what the facts are in this
case. You must use only the evidence presented in this courtroom. Evidence is the
sworn testimony of witnesses, the exhibits admitted into evidence, an[d] anything else
I tell you to consider as evidence.” The court stated: “Nothing that the attorneys say is

20
evidence. In their opening statements and closing arguments the attorneys will discuss
the case, but their remarks are not evidence.”
The trial court’s final jury instructions reiterated: “In deciding whether the People
have proved their case beyond a reasonable doubt, you must impartially compare and
consider all the evidence that was received throughout the entire trial. Unless the
evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an
acquittal and you must find him not guilty. [¶] Evidence is the sworn testimony of
witnesses, the exhibits admitted into evidence, and anything else I told you to consider as
evidence. Nothing that the attorneys say is evidence. In their opening statements and
closing arguments, the attorneys discussed the case, but their remarks are not evidence.”
In addition, the trial court instructed: “A defendant has an absolute constitutional
right not to testify. He or she may rely on the state of the evidence and argue that the
People have failed to prove the charges beyond a reasonable doubt. Do not consider for
any reason at all, the fact that the defendant did not testify. Do not discuss that fact
during your deliberations or let it influence your decision in any way.”
As indicated above, in closing argument, defense counsel admitted that he had
made a blunder during his opening statement by indicating defendant would testify.
However, defense counsel also reminded the jury that his statements were not evidence.
Counsel stressed that defendant had “an absolute constitutional right not to testify.” The
prosecutor also told the jury that defendant had a right not to testify and that it should not
consider the fact he did not testify “one way or another.”
Under the circumstances, defendant has not demonstrated prejudice. The jury was
repeatedly told that counsel’s remarks were not evidence, defendant had a constitutional
right not to testify, and the fact that defendant did not testify could not be considered by
jury. There is nothing in the record to suggest that defense counsel’s opening statement
influenced the jury’s evaluation of the credibility of any witnesses, including the bouncer
who was an eyewitness to defendant striking D.M. with a pool stick. Defendant has not

21
shown that it is reasonably probable that, but for defense counsel’s opening statement
promise that defendant would testify, “the result of the proceeding would have been
different.” (Strickland, supra, 466 U.S. at p. 694.)
B. Section 654’s Proscription against Multiple Punishment
Defendant argues that the trial court violated section 654 by imposing and not
staying a sentence on count 2 because he was convicted of both counts 1 and 2 “for
committing the same physical act of striking [D.M.] once with a pool stick and breaking
his arm.” Defendant explains that “[a]lthough there was evidence introduced during trial
of a separate incident of violence, [which] involve[ed] a hammer [and] occurred after the
pool stick incident, the prosecution opted not to prosecute this second act.”2 Defendant
asserts that since he was not prosecuted for the subsequent incident of violence outside
the bar, the sentence imposed on count 2 must be stayed.

2
The record reflects that in closing argument, the prosecutor asserted that
defendant was guilty of the charged offenses because defendant struck D.M.’s arm with a
pool stick, which broke his arm. The prosecutor described whatever happened
subsequently, outside the bar, as a “mutual fight.” He referred to a “second encounter” in
which “defendant was hitting the victim over the head with a hammer or some type of
metal object.” The prosecutor told the jury, “We’ve made this easier for you. You don’t
have to decide what happened out there. . . . And you don’t have to make any decisions
about what happened outside. . . . This case is about the defendant hitting the victim with
the pool stick.” In closing argument, defense counsel told the jury: “[I]t’s much more
likely that the hammer broke [D.M.’s] arm than the pool stick. And [defendant’s] not
charged with that because of the brilliant strategy of the district attorney.” “The injuries
in the photo [of D.M.] are completely unrelated to the charge because the fight is not
charged.” He argued: “If the charge was assault with a pool stick and not a hammer, you
can’t convict. You don’t have the pool stick. You don’t know the pool stick injured
him. . . . Reasonable doubt, folks. Clear-cut, unquestionable, reasonable doubt. Why is
there no charge based on the hammer? Why is there no charge based on these photos?”
In rebuttal, the prosecutor repeated that during the fight that followed the pool stick
incident, defendant repeatedly hit D.M. in the head with a hammer. The prosecutor said
that unlike the pool stick incident, there was no independent witness to the hammer
incident. He indicated that the jurors “shouldn’t think about” why defendant was not
charged for the hammer incident.

22
 On appeal, the People agree that section 654 requires a stay of the sentence for
battery with infliction of serious bodily injury (count 2) “[b]ecause the assault and battery
were based on the same blow to [D.M.].”
a. Section 654
Under section 654, subdivision (a), “[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.” “ ‘It is well settled that
section 654 protects against multiple punishment, not multiple conviction. [Citation.]’
[Citation.]” (People v. Correa (2012) 54 Cal.4th 331, 336, fn. omitted.) “[T]he 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.]” (People v.
Jones (2012) 54 Cal.4th 350, 353.) Thus, “[w]hen section 954 permits multiple
conviction, but section 654 prohibits multiple punishment, the trial court must stay
execution of sentence on the convictions for which multiple punishment is prohibited.
[Citations.]” (People v. Reed (2006) 38 Cal.4th 1224, 1227.)
“Whether a defendant may be subjected to multiple punishment under section 654
requires a two-step inquiry, because the statutory reference to an ‘act or omission’ may
include not only a discrete physical act but also a course of conduct encompassing several
acts pursued with a single objective. [Citations.] We first consider if the different crimes
were completed by a ‘single physical act.’ [Citation.] If so, the defendant may not be
punished more than once for that act. Only if we conclude that the case involves more
than a single act—i.e., a course of conduct—do we then consider whether that course of
conduct reflects a single ‘ “intent and objective” ’ or multiple intents and objectives.
[Citations.]” (People v. Corpening (2016) 2 Cal.5th 307, 311-312.)

23
b. Threshold Problem: No Sentence was Pronounced
Both parties appear to believe that the trial court pronounced judgment in this
case. But neither has, by specific citation to the record, directed us to any oral
pronouncement of separate terms on each count of which defendant was found guilty or
on any associated enhancement allegation that was found true by the jury, which terms
add up to an aggregate eight-year sentence.
According to defendant, the court suspended execution of a total eight-year state
prison sentence and placed him on probation for a term of three years. He acknowledges
that the trial court did not state on the record how it calculated the aggregate eight-year
sentence and refers us to the probation report’s sentencing recommendations. Defendant
accurately recounts that the trial court then ordered him to serve as a condition of
probation, two years in county jail, consisting of one year on count 1 and a consecutive
year on count 2. (See § 19.2 [“In no case shall any person sentenced to confinement in a
county . . . jail . . . as a condition of probation upon conviction of either a felony or a
misdemeanor . . . be committed for a period in excess of one year . . . .”]; People v.
Jeffrey (2004) 33 Cal.4th 312, 317 [recognizing that section 19.2 imposes a “one-year cap
on the time that can be served in county jail as a condition of probation for any single
violation”].)
The People claim that the trial court followed the probation officer’s
recommendations and imposed an eight-year aggregate prison sentence. They suggest
that the total eight-year sentence consisted of (1) a three-year midterm for the conviction
of assault with a deadly weapon (count 1); (2) a consecutive three-year enhancement term
for personal infliction of great bodily injury as to count 1; (3) a consecutive one-year
term for the conviction of battery with infliction of serious bodily injury (count 2); and
(4) a consecutive one-year enhancement term for personal infliction of great bodily injury
as to count 2. That may well have been what the trial court intended to do, but it did not
actually pronounce those terms.

24
 “In a criminal case, judgment is rendered when the trial court orally pronounces
sentence. (§§ 1191 and 1202; People v. Mesa (1975) 14 Cal.3d 466, 471; People v.
Thomas (1959) 52 Cal.2d 521, 529, fn. 3; 6 Witkin & Epstein, Cal. Criminal Law [(2d ed.
1989) Judgment and Attack in Trial Court], § 3101, p. 3825.)” (People v. Karaman
(1992) 4 Cal.4th 335, 344, fn. 9.) It is a trial court’s duty to pronounce judgment on each
count of which a defendant is convicted. (People v. Morrow (1969) 275 Cal.App.2d 507,
516; see § 12 [“The several sections of this [Penal Code] which declare certain crimes to
be punishable as therein mentioned, devolve a duty upon the court authorized to pass
sentence, to determine and impose the punishment prescribed”].)
“The trial court is generally required to include all aspects of a judgment in its oral
pronouncement of judgment. (See People v. Mesa (1975) 14 Cal.3d 466, 471.) Any
discrepancy between the judgment as orally pronounced and as recorded in the clerk’s
minutes or abstract of judgment is presumed to be the result of clerical error. (Ibid.) The
abstract of judgment [or minute order] ‘does not control if different from the trial court’s
oral judgment and may not add to or modify the judgment it purports to digest or
summarize.’ (People v. Mitchell (2001) 26 Cal.4th 181, 185.)” (People v. Leon (2020)
8 Cal.5th 831, 855.)
“When a judgment of imprisonment is to be imposed and the statute specifies
three possible terms, the choice of the appropriate term shall rest within the sound
discretion of the court.” (§ 1170, subd. (b).) The court must “set forth on the record the
reasons for imposing the term selected.” (Ibid.) In contrast, no term of imprisonment is
specified if imposition of sentence is suspended. (Ibid.)
Section 1170.1, subdivision (a), states: “Except as otherwise provided by law, and
subject to [s]ection 654, when any person is convicted of two or more felonies . . . and a
consecutive term of imprisonment is imposed under [s]ections 669 and 1170, the
aggregate term of imprisonment for all these convictions shall be the sum of the principal
term, the subordinate term, and any additional term imposed for applicable enhancements

25
for prior convictions, prior prison terms, and [s]ection 12022.1. The principal term shall
consist of the greatest term of imprisonment imposed by the court for any of the crimes,
including any term imposed for applicable specific enhancements. The subordinate term
for each consecutive offense shall consist of one-third of the middle term of
imprisonment prescribed for each other felony conviction for which a consecutive term of
imprisonment is imposed, and shall include one-third of the term imposed for any
specific enhancements applicable to those subordinate offenses.” (See § 1170.11.)
California Rules of Court, rule 4.433(c) states: “If a sentence of imprisonment is
to be imposed, or if the execution of a sentence of imprisonment is to be suspended
during a period of probation, the sentencing judge must: [¶] (1) Determine, under
section 1170(b), whether to impose one of the three authorized terms of imprisonment
referred to in section 1170(b), or any enhancement, and state on the record the reasons for
imposing that term; [¶] (2) Determine whether any additional term of imprisonment
provided for an enhancement charged and found will be stricken; [¶] (3) Determine
whether the sentences will be consecutive or concurrent if the defendant has been
convicted of multiple crimes; [¶] (4) Determine any issues raised by statutory
prohibitions on the dual use of facts and statutory limitations on enhancements . . . ;
and [¶] (5) Pronounce the court’s judgment and sentence, stating the terms thereof and
giving reasons for those matters for which reasons are required by law.”
Here, the trial court did not orally pronounce the constituent terms of an aggregate
eight-year sentence. Further, in granting probation, the court inconsistently indicated that
it was suspending an eight-year state prison sentence and that it was suspending
imposition of sentence. Even if we could retroactively reconstruct the intended sentence,
it is the trial court that must orally pronounce it.
We will remand the matter to the trial court to clarify whether it had intended to
orally pronounce sentence and suspend its execution and, if that was its intent, to do so.

26
If the trial court pronounces sentence upon remand, it may in the first instance resolve
any section 654 claim that is raised.
C. Allegation that Infliction of Great Bodily Injury is Element of Count 2 Offense
In this case the jury impliedly found that D.M.’s forearm fracture was both a
“serious bodily injury” within the meaning of section 243(d) (count 2) and a “great bodily
injury” within the meaning of section 12022.7(a). Defendant argues that a statutory
limitation—section 12022.7, subdivision (g) (12022.7(g))—precluded an enhancement
under section 12022.7(a) and that therefore the section 12022.7(a) enhancement attached
to count 2 must be stricken. Under section 12022.7(g), section 12022.7(a) does not
“apply if infliction of great bodily injury is an element of the offense.” The People
concede error.
As the trial court did not orally impose that enhancement, there is nothing to
strike, even if we assume for the sake of argument that defendant’s contention is correct.
If the trial court pronounces judgment upon remand, it should address whether a
section 12022.7(a) enhancement may be applied to a conviction of battery with infliction
of serious bodily injury (§ 243(d)). (See 12022.7(g).)
DISPOSITION
The January 19, 2016 order is reversed. The matter is remanded to the trial court
with directions to (1) clarify whether its intent was to pronounce sentence and suspend its
execution or to suspend imposition of sentence and (2) orally pronounce sentence and
suspend its execution, if that was the court’s intent.

27
 _________________________________
ELIA, J.

WE CONCUR:

_______________________________
GREENWOOD, P.J.

_______________________________
PREMO, J.

People v. Rush
H045678