People v. Reynolds CA5

Filed 2/9/21 P. v. Reynolds CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F076190
Plaintiff and Respondent,
(Super. Ct. Nos. CRF48393,
v. CRF50084, CRF50586, CRF52089)

BRIAN THOMAS REYNOLDS,
OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Tuolumne County. James A.
Boscoe, Judge.
Jin H. Kim, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters and Gerald A. Engler, Chief
Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Catherine
Chatman, Daniel B. Bernstein, and Cameron M. Goodman, Deputy Attorneys General,
for Plaintiff and Respondent.
-ooOoo-
 INTRODUCTION
In Tuolumne County Superior Court case No. CRF48393 (case No. CRF48393),
defendant Brian Thomas Reynolds pled guilty to theft and unlawful driving or taking of a
vehicle (Veh. Code, § 10851, subd. (a)) and admitted he was previously convicted of a
qualifying “strike” offense under the Three Strikes law (Pen. Code,1 § 667, subds.
(b)-(i)).
In Tuolumne County Superior Court cases Nos. CRF50084 (case No. CRF50084)
and CRF50586 (case No. CRF50586), which were consolidated, a jury convicted
defendant of two counts of failure to appear in court while released on bail (§ 1320.5).
With regard to case No. CRF50084, the jury found true the allegation defendant
committed the first violation while released on bail in case No. CRF48393 (§ 12022.1).
With regard to case No. CRF50586, it found true the allegation he committed the second
violation while released on bail in case No. CRF50084. In a bifurcated proceeding,
defendant admitted he was previously convicted of a qualifying “strike” offense (§ 667,
subds. (b)-(i)) and served five prior prison terms (§ 667.5, subd. (b)).
In Tuolumne County Superior Court case No. CRF52089 (case No. CRF52089), a
jury convicted defendant of criminal threats (§ 422, subd. (a) [count I]) and willful
infliction of corporal injury on a cohabitant (§ 273.5, subd. (a) [count IV]) and found true
the allegations he committed these offenses while released on bail in cases Nos.
CRF48393 and CRF50084 (§ 12022.1).2 In a bifurcated proceeding, the trial court found
defendant was previously convicted of a qualifying “strike” offense (§ 667, subds.

1 Unless otherwise indicated, subsequent statutory citations refer to the Penal Code.
2 The jury found defendant not guilty of assault with a deadly weapon (§ 245,
subd. (a)(1) [count VI]) and could not reach a verdict on a second charge of willful
infliction of corporal injury on a cohabitant (§ 273.5, subd. (a) [count II]) and two
charges of false imprisonment by violence (§ 236 [counts III & V]). The trial court
declared a mistrial as to the deadlocked counts and later granted the prosecution’s motion
to dismiss them.

2.
(b)-(i)), was previously convicted of a serious felony (§ 667, subd. (a)(1)), and served
five prior prison terms. (§ 667.5, subd. (b)).
On July 12, 2017, defendant was sentenced on all four cases. He received an
aggregate term of 28 years four months.
Specifically, in case No. CRF52089, the trial court imposed a sentence of 22 years
four months: a doubled upper term of eight years, plus four years for two on-bail
enhancements and four years for four prior prison term enhancements, on count IV;3 and
a doubled one-third middle term of 16 months, plus five years for a prior serious felony
enhancement, on count I.4 The court also assessed a $6,600 restitution fine (§ 1202.4)
and stayed a parole revocation restitution fine pending successful completion of parole
(§ 1202.45).
In case No. CRF48393, per stipulation, the court imposed a doubled one-third
middle term of 16 months to run consecutively to defendant’s sentence in case No.
CRF52089. It also assessed a $300 restitution fine (§ 1202.4) and stayed a parole
revocation restitution fine pending successful completion of parole (§ 1202.45).
In case No. CRF50084, the court imposed a doubled one-third middle term of 16
months to run consecutively to defendant’s sentence in case No. CRF52089.5 It also
assessed a $300 restitution fine (§ 1202.4) and stayed a parole revocation restitution fine
pending successful completion of parole (§ 1202.45).6 In case No. CRF50586, the court
imposed a sentence of three years four months to run consecutively to defendant’s
sentence in case No. CRF52089: a doubled one-third middle term of 16 months, plus two
years for an on-bail enhancement. It also assessed a $900 restitution fine (§ 1202.4) and

3 The court struck a fifth prior prison term enhancement.
4 The court stayed two on-bail enhancements.
5 The court struck a prior prison term enhancement.
6 The court struck an on-bail enhancement.

3.
stayed a parole revocation restitution fine pending successful completion of parole
(§ 1202.45).
Defendant appeals from the judgments entered in all four cases. In his opening
brief, he makes numerous arguments. First, one or both of defendant’s failure-to-appear
convictions must be reversed because (1) the trial court gave an improper instruction to
the jury; (2) his attorney rendered ineffective assistance by failing to object on several
occasions; and (3) the cumulative effect of these errors deprived him of due process.
Second, his conviction for willful infliction of corporal injury on a cohabitant must be
reversed because the court (1) erroneously admitted into evidence the victim’s
testimonial statements to the police; and (2) failed to instruct the jury on the lesser
included offense of misdemeanor battery of a cohabitant. Third, the court improperly
imposed more than two on-bail enhancements. Fourth, in view of a recent amendment to
sections 667, subdivision (a), and 1385, enacted by Senate Bill No. 1393 (2017-2018
Reg. Sess.) (Senate Bill No. 1393) (Stats. 2018, ch. 1013, §§ 1-2, eff. Jan. 1, 2019), the
case must be remanded to afford the court an opportunity to exercise its sentencing
discretion as to the prior serious felony enhancement. Finally, before imposing any fines,
the court should have conducted an ability-to-pay hearing pursuant to People v. Dueñas
(2019) 30 Cal.App.5th 1157 (Dueñas).
In the respondent’s brief, the Attorney General agrees only two on-bail
enhancements were authorized and a remand for reconsideration of sentencing in light of
Senate Bill No. 1393 is appropriate. We accept these concessions. For the reasons set
forth below, we affirm the convictions. Because the case must be remanded for
resentencing, defendant’s Dueñas argument is moot.
In a supplemental brief, defendant asks us to strike the four prior prison term
enhancements in view of a recent amendment to section 667.5, subdivision (b), enacted
by Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill No. 136) (Stats. 2019,

4.
ch. 590, § 1, eff. Jan. 1, 2020). The Attorney General concurs. We accept this
concession.
STATEMENT OF FACTS
I. Case No. CRF48393
The prosecution provided—and the trial court accepted—the following factual
basis for defendant’s guilty plea:

“On or about October 6th of 2015, . . . defendant, while in the
County of Tuolumne, was in possession and did drive a vehicle, [a] 1993
Honda motorcycle, that did not belong to him, and did so without the
owner’s consent.”
II. Cases Nos. CRF50084 and CRF50586
The trial court granted the prosecution’s request to judicially notice several minute
orders, two bail bonds, and an arrest warrant.
Defendant was present at a March 16, 2016 hearing in connection with case
No. CRF48393. He was ordered to appear in court again on March 25, 2016, but failed
to do so. A bench warrant was issued. Defendant subsequently made an appearance on
April 13, 2016.
On May 13, 2016, defendant was arrested in connection with case No. CRF50084.
A bail bond executed on May 14, 2016, indicated he was ordered to appear in court on
May 27, 2016. Defendant did not make an appearance until September 1, 2016.
The parties agreed to the following stipulation:

“On March 23, 2016, at 10:42 p.m., . . . defendant . . . arrived at Marshall
Medical Center Emergency Room, 1100 Marshall Way, Placerville, CA
95667. He was admitted into the hospital at 4:32 a.m. on March 24. He
stayed there until he was discharged at 10:10 p.m. on March 24. His
residence is in Placerville.”

5.
III. Case No. CRF52089
a. Prosecution’s case-in-chief
i. Howard B.7
On May 31, 2016, Howard noticed “a young lady” sitting on a bench next to his
front doorstep. She was “very distressed and hurt”; she was “bent over,” “was crying,”
and “had her face covered with her hands.” Howard observed redness on her face and
bruises on her arms. He asked her what had occurred and she stated, “her boyfriend had
dumped her off out there after beating her up.” She said she had been “pistol whipped.”
She also told Howard her boyfriend was heading to a mobilehome park in Jamestown in a
green pickup truck and provided a license plate number. Howard phoned 911 and
reported the incident. Law enforcement arrived at his house less than 15 minutes later.
ii. Kevin L.
Kevin arranged to have defendant and his girlfriend come to his mobilehome “[t]o
do some work,” namely, “[h]ousecleaning and whatever [he] could find for [them] to do.”
On May 31, 2016, defendant came to Kevin’s residence alone in a green pickup truck.
He told Kevin he and his girlfriend “were arguing” and he “dropped her off.” Defendant
left the property sometime after deputies arrived.
iii. Deputies Sandelin and Lockhart
On May 31, 2016, Tuolumne County Sheriff’s Deputies Sandelin and Lockhart
were dispatched to the mobilehome park. Sandelin located the green pickup truck in
Kevin’s driveway and spoke with Kevin. With Kevin’s consent, the deputies searched
the property. Outside, Lockhart “found a space on the back fence where . . . some
bamboo privacy fencing material had been pulled apart” and “there w[ere] [shoe-shaped]
disturbance[s] in the grounds indicating somebody had climbed over the fence in that

7 Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their
first names. No disrespect is intended.

6.
area.” In the truck, Lockhart found a loaded air rifle, pellets, and a cell phone. He picked
up the phone and noticed “the screen was lit and active” and appeared to be recording
audio for “around an hour and 44 minutes.” This recording was subsequently extracted.
iv. Deputy Leyva
On May 31, 2016, Tuolumne County Sheriff’s Deputy Leyva was dispatched to
Howard’s home, where he saw the victim “sitting on a chair near the front door” and
“crying hysterically.” She exhibited “a red mark on her right collarbone approximately
two and a half inches”; “a small red mark on her right jawline”; “a red mark on her left
neck about a half inch”; and redness, bruising, and moderate swelling on her left arm.
The victim told Leyva defendant struck her with “the stock end of a pellet gun.” She
“[a]ppeared to be in a lot of pain” and “had trouble speaking.”
Leyva accompanied the victim to the hospital. He photographed the following
injuries: swelling and discoloration of the left arm; swelling of the right arm; scratches
on the right elbow and forearm area; scratches and abrasions on the chin and collarbone
area; a “red mark” on the left side of the neck; and an abrasion above the right eye with
“slight swelling.” Leyva also observed “some scratch marks on her left elbow,” “redness
to the left side of her face,” and “two lumps on the back of her head that were close to
each other” and “dime size as far as circumference.”
On June 16, 2016, Leyva attempted to contact the victim but was unable to do so.
Thereafter, he listened to an audio recording from the cell phone found in defendant’s
truck. It contained a 30-minute interaction between a man and a woman. Leyva
recognized the woman’s voice as the victim’s based on his prior interactions with her.
The following took place:

“[Defendant]: I wish I could trust you enough to clean . . . the truck
out, but I can’t.

“[Victim]: I’m not cleaning nothing of yours. [¶] . . . [¶]

“[Defendant]: . . . . Get out. How’s that? Get out.

7.
 “[Victim]: Nope.

“[Defendant]: Yep. Well then I won’t work for Kevin and get gas to
go to Placerville. How’s that? [laughing] Touché
motherfucker. Touché. [¶] . . . [¶]

“[Victim]: I’ll get out and cause a scene inside the trailer park.

“[Defendant]: We’re not going to the trailer park. . . . [¶] . . . [¶]

“[Victim]: I’ll start knocking door to door.

“[Defendant]: Have at it, I’ll go that way. And I’ll say fuck Kevin, I
don’t know that crazy bitch.

“[Victim]: [unintelligible]

“[Defendant]: Go knock on his door then because I’m not going up
there with you. You’re not going to fucking embarrass
me.

“[Victim]: It’s an embarrassment that you like to beat your
women.

“[Defendant]: No, it’s an embarrassment that my women act like
such cunts.

“[Victim]: Doesn’t give you the right to put hands on them.
[¶] . . . [¶]

“[Defendant]: . . . . I’m not gonna go work for Kevin with you with
me. Period. . . .

“[Victim]: [unintelligible]

“[Defendant]: Why don’t you just get out?

“[Victim]: I tried already.

“[Defendant]: You’re a miserable bitch. [¶] . . . [¶] . . . I didn’t have
no crank.[8]

“[Victim]: Oh really?

8 At trial, Leyva testified “crank” is slang for methamphetamine.

8.
“[Defendant]: Really.

“[Victim]: Shooting it in your arm?

“[Defendant]: . . . I didn’t have no fucking crank. . . .

“[Victim]: Is that all you’re doing? Shooting water in your arm
then? [¶] . . . [¶]

“[Defendant]: I’ll tell you what, it was crank huh? Crank, crank,
crank. That’s all you want, huh? Are you a little
crank whore?

“[Victim]: Yep.

“[Defendant]: I figured as much. I figured as much. Little crank
whore.

“[Victim]: Junkie. [¶] . . . [¶]

“[Defendant]: Yea, so what, I like to shoot crank. Big deal.
[¶] . . . [¶] . . . Dick hype. Can’t wait [eight] months
for her old man. She’s a fucking dick hype. Gotta
have cock from a fucking drop out. Piece of shit bitch.
That’s what you are. Always will be.

“[Victim]: [unintelligible]

“[Defendant]: Another piece of shit dick hype. [unintelligible]
That’s how you like it. The bigger the better. The
more the better. Ain’t that right toots? . . .

“[Victim]: Don’t talk to me. . . .

“[Defendant]: . . . . I’ll talk to whoever I goddamned well please.
Ain’t nobody gonna do nothing about it.

“[Victim]: Well that’s because you’re Brian Reynolds.

“[Defendant]: That’s right. Brian motherfucking Reynolds. Now get
it straight. [¶] . . . [¶]

“[Victim]: Amy would have fucking kicked your ass by now.

“[Defendant]: I would have fucking beat her ass just like I did
yours. . . .

9.
“[Victim]: She’d fuck you up.

“[Defendant]: You wish, what do you idolize her? [unintelligible]
You idolize that bitch. She knows how to work the
men, like you. You caused this one. Keep it up and
I’m going to shoot you right in the forehead.
[¶] . . . [¶] . . . Keep running your mouth bitch. You
want to see what I’m about. Is that what it is?

“[Victim]: Slamming dope and beating women.

“[Defendant]: That’s right, want to see what I’m about? Okay. . . . Is
that right? Shoot dope and beat women. That’s what I
do, huh . . . ? You’re a cunt.

“[Victim]: So are you. [¶] . . . [¶]

“[Defendant]: Shooting dope and beating women. That’s what I
do. . . .

“[Victim]: Yeah.

“[Defendant]: That’s all I do? Really? Really? Huh. That’s cool.
Know what you’re going to do, peck and peck until
you get a reaction out of me. . . .

“[Victim]: No. [unintelligible]

“[Defendant]: You’ll definitely get one. . . . Of course you know
this. Went there a million times. Don’t. I’m going to
fucking punch you right in the face bitch. You fucking
whore. You think that shit’s fucking funny?
Bitch. . . .

“[Victim]: Shoot me, I don’t give a fuck.

“[Defendant]: Fuck you nigger. Fucking whore bitch. Fucking cunt.

“[Victim]: Right back at you.

“[Defendant]: Get the fuck out of my truck. I’m not kidding bitch.
You got it, I won’t stop no more. You got it. You got
your way. Go, I will not pick you . . . go. You can go
all you want motherfucker, get. Get. It’s beyond

10.
 repair. You’re never going to repair this. . . . You
win. Ding ding ding winner winner. [¶] . . . [¶]

“[Victim]: Shoot me.

“[Defendant]: I will. [¶] . . . [¶]

“[Victim]: Hope your shot of dope was worth it.

“[Defendant]: . . . . Stop it bitch.

“[Victim]: Owww, you fucking nigger.

“[Defendant]: Keep it up bitch, keep it up[.]

“[Victim]: [screaming]

“[Defendant]: You fucking cunt[.]

“[Victim]: [screaming]

“[Defendant]: [S]hut your fucking mouth[.]

“[Victim]: [screaming] . . .

“[Defendant]: You’re a fucking cunt. Lying bitch. I hate you bitch.
Keep it up. [acceleration] Keep it up nigger. I’m
going to knock the fucking shit out of you bitch. Keep
it up[.] Fucking whore, I’m going to fucking knock
you out bitch. Keep it up, keep it up cunt. Fucking
whore bitch. I hate you cunt.

“[Victim]: [crying] I can’t see out of my eye.

“[Defendant]: Good bitch, I hope you never see again. Fucking cunt.

“[Victim]: [screaming]

“[Defendant]: Shut the fuck up. Shut up. Shut up. Bitch. Shut up. I
hope you fucking die.

“[Victim]: [crying/screaming]

“[Defendant]: I hope you die bitch.

“[Victim]: [screaming]

11.
“[Defendant]: I hope you die. I fucking hate you, I hate you, I hate
you. Get out of my truck, get the fuck out, right now.
Get the fuck out. [¶] . . . [¶] . . . Get out, get out now
bitch, get the fuck out bitch, get the fuck out of my
truck right now. Get out. I’m gonna kill you. Get the
fuck out. I hate you. I fucking hate you. I hate you.
[¶] . . . [¶] . . . I hate you. I hate you. Get the fuck
out. Get the fuck out, get the fuck out bitch.

“[Victim]: You’re going to jail.

“[Defendant]: Fuck you nigger. I hope so. I hope so[.]

“[Victim]: You’re going to jail.

“[Defendant]: I hope so. . . . I hope so bitch. I hate you. I fucking
hate you. I hate you. Go ahead, I’ll hit you right in the
mouth. Go ahead bitch. You wanna know how hard I
can hit? Huh? I hate you. I hate you. I hate you. Get
the fuck out. Get out bitch. You fucking whore.

“[Victim]: [crying]

“[Defendant]: Go ahead and yell now. Go ahead and yell now bitch.
Yell now. Huh? [F]ucking drunk bitch. I fucking
hate you, you fucking cunt, you fucking whore.
You’re such a fucking bitch. I don’t ever want to see
you again, ever.

“[Victim]: [crying]

“[Defendant]: [imitating crying] Fuck you. Sorry ass nigger. Get
the fuck out right now bitch. Get the fuck out and
don’t come back. Get the fuck out bitch.

“[Victim]: No. HELP!

“[Defendant]: I don’t give a fuck. Yell all you want. Get out.

“[Victim]: HELP!

“[Defendant]: Get out bitch, I don’t give a fuck if we go to jail or not.
Get out, I hate you.

“[Victim]: HELP! [acceleration]

12.
“[Defendant]: Really? I’m going to punch you right in the mouth,
cunt. You’re a fucking bitch. You’re a fucking whore
and I fucking hate your guts. Bitch. Get out.

“[Victim]: STOP!

“[Defendant]: Shut the fuck up. Get out, get out bitch. Get the fuck
out of my truck. You hear me, you whore? You
fucking cunt bitch. Get out. Get out.

“[Victim]: Stop right here, I will.

“[Defendant]: Fucking nigger. I’ll fucking kill your punk ass first.
I’ll fucking kill you deader than shit bitch. Like a
fucking rat. Just like a rat, I’ll deal with you. Just like
a fucking rat you are.

“[Victim]: Stop and let me out.

“[Defendant]: Fuck off, drunk cunt. . . .

“[Victim]: Let me out right now, I’m calling the cops.

“[Defendant]: I will.

“[Victim]: Ahhh[.]

“[Defendant]: What are you going to do? What are you going to do?

“[Victim]: [screaming]

“[Defendant]: Are you gonna call the cops? Shut up. Yell all you
want bitch. Yell. Get the fuck out. Get out, get the
fuck out right now.

“[Victim]: I’m calling the cops on you.

“[Defendant]: Good, drunk cunt, get out. Bye bitch. Get the fuck
out, cunt. [¶] . . . I fucking hate you, I hate you.

“[Victim]: I got your license plate number.

13.
 “[Defendant]: You’re worse than any bitch I’ve ever been with in my
life. Good bye. . . . I told you I’m never coming back.
Good bye.”9
DISCUSSION
I. Defendant’s failure-to-appear convictions
Defendant contends one or both of his failure-to-appear convictions must be
reversed on three grounds: (1) instructional error; (2) ineffective assistance of counsel;
and (3) cumulative error. For the reasons set forth below, we affirm these convictions.
a. Instructional error
Prior to summations, the trial court instructed the jury:

“[D]efendant is charged in [c]ount[s] [I] and [II] with willfully
failing to appear in court when required in violation of . . . [s]ection 1320.5.
In order to find . . . defendant guilty of this crime, the People must prove
that: One, . . . defendant was charged with or convicted of a felony. Two,
. . . defendant was released from custody on bail. Three, . . . defendant
willfully failed to appear as required. And four, . . . defendant willfully
failed to appear in order to evade the process of the [c]ourt.

“If the prosecution has produced evidence that . . . defendant failed
to appear within 14 days of his missed court date, you may, but are not
required to, infer that . . . defendant intended to evade the process of the
court. Someone commits an act willfully when he or she does it willingly
or on purpose. . . .”10
“A claim of instructional error is reviewed de novo.” (People v. Ghebretensae
(2013) 222 Cal.App.4th 741, 759, citing People v. Guiuan (1998) 18 Cal.4th 558, 569-
570; see People v. Quinonez (2020) 46 Cal.App.5th 457, 465 [“We review de novo the
question of whether a jury instruction correctly states the law.”].)

9 The jury listened to the audio recording.
10 At the time of trial, there was no standard criminal pattern jury instruction for
failure to appear in court while released on bail. The record indicates the prosecution
drafted the instruction and defense counsel did not object.

14.
 “Every person who is charged with or convicted of the commission of a felony,
who is released from custody on bail, and who in order to evade the process of the court
willfully fails to appear as required, is guilty of a felony.” (§ 1320.5; see People v.
Hagedorn (2005) 127 Cal.App.4th 734, 744, fn. 6 [“ ‘The word “willfully” as generally
used in the law is a synonym for “intentionally,” i.e., the defendant intended to do the act
proscribed by the penal statute.’ ”].) “[T]he Legislature intended section 1320.5 to be a
specific intent crime. Not only must the individual intend to fail to appear, but also he or
she must intend the failure to appear to ‘achieve some additional purpose,’ i.e., ‘to evade
the process of the court.’ ” (People v. Wesley (1988) 198 Cal.App.3d 519, 522 (Wesley);
see People v. Forrester (1994) 30 Cal.App.4th 1697, 1701 [regarding violation of § 1320,
subd. (b)].) “Willful failure to appear within 14 days of the date assigned for appearance
may be found to have been for the purpose of evading the process of the court.”
(§ 1320.5.)
On appeal, defendant points out the court “instructed the jury that it may infer
guilty intent simply if [he] failed to appear within the 14-day period, regardless of
whether or not that failure was willful.” The Attorney General asserts the instruction—as
it pertains to the permissive inference—should have specified an intentional failure to
appear but maintains any error is harmless beyond a reasonable doubt. (See Chapman v.
California (1967) 386 U.S. 18, 24 (Chapman) [“[B]efore a federal constitutional error
can be held harmless, the court must be able to declare a belief that it was harmless
beyond a reasonable doubt.”]; People v. Geier (2007) 41 Cal.4th 555, 608 [“The harmless
error inquiry asks: ‘Is it clear beyond a reasonable doubt that a rational jury would have
found the defendant guilty absent the error?’ ”].)
We find no error. “ ‘[A] jury instruction cannot be judged on the basis of one or
two phrases plucked out of context . . . .’ [Citation.] While a single sentence in an
instruction ‘may or may not be confusing, depending upon the context in which the
sentence lies,’ an instructional error ‘ “ ‘cannot be predicated upon an isolated phrase,

15.
sentence or excerpt taken from the instructions . . . .’ ” ’ [Citation.] [¶] Instead, ‘ “[t]he
correctness of jury instructions is to be determined from the entire charge of the court, not
from a consideration of parts of an instruction or from a particular instruction.”
[Citation.]’ [Citations.]” (People v. Quinonez, supra, 46 Cal.App.5th at pp. 465-466.)
Here, the instruction given for failure to appear in court while released on bail correctly
identified the essential elements of the offense at the outset: (1) defendant was charged
with or convicted of the commission of a felony; (2) defendant was released from custody
on bail; (3) defendant willfully failed to appear in court as required; and (4) defendant
willfully failed to appear in court as required in order to evade the process of the court.
(Cf. Wesley, supra, 198 Cal.App.3d at pp. 521, 524 [trial court failed to instruct on
specific intent element].) Hence, “even if the instruction[] on [the permissive inference]
w[as] incomplete” because it referred to a mere failure to appear rather than a willful or
intentional failure to appear, “such a defect would be cured by reading [the] instruction[]
as a whole.” (People v. Rhodes (1971) 21 Cal.App.3d 10, 21, fn. omitted; see People v.
Sanchez (2001) 26 Cal.4th 834, 852 [“Jurors are presumed able to understand and
correlate instructions . . . .”].)
Moreover, it is clear beyond a reasonable doubt that a rational jury would have
found defendant guilty on both counts absent the permissive inference instruction. As to
the first count, the record establishes defendant appeared in court on March 16, 2016. He
was ordered to appear again on March 25, 2016. On March 23, 2016, defendant went to
a hospital in Placerville. He was admitted on the morning of March 24, 2016, but
discharged later that night. The following day, defendant did not show up to court.
Instead, his next appearance was on April 13, 2016. No explanation was given as to why
defendant could not be present on March 25, 2016, when he had already been discharged
from the hospital the night before. No explanation was given as to why he only appeared
19 days after the assigned date. (Cf. People v. Forrester, supra, 30 Cal.App.4th at
p. 1702 [the accused testified his vehicle broke down on scheduled court date and he

16.
called the court to explain his absence]; Wesley, supra, 198 Cal.App.3d at pp. 521, 525
[the accused was present in court on assigned court date, left during lunch break due to
side effects of medication, returned to court the next day, and explained his absence].)
As to the second count, the record establishes defendant was arrested on May 13, 2016.
By the terms of a bail bond executed on May 14, 2016, he was ordered to appear in court
on May 27, 2016. Defendant failed to do so. Instead, his next appearance was on
September 1, 2016. Again, no explanation was given as to why defendant could not be
present on May 27, 2016, or why he only appeared more than three months after the
assigned date. There was ample circumstantial evidence that defendant—on two separate
occasions—willfully failed to appear in court as required in order to evade the process of
the court. (See People v. Pre (2004) 117 Cal.App.4th 413, 420 [“Intent is rarely
susceptible of direct proof and usually must be inferred from the facts and circumstances
surrounding the offense.”].)
b. Ineffective assistance of counsel
Defendant asserts his attorney rendered ineffective assistance by failing to object
to: the trial court’s admission into evidence and judicial notice of the bail bond executed
on May 14, 2016; the prosecution’s closing argument; and the prosecution’s rebuttal.
To establish ineffective assistance of counsel, a defendant must show (1) defense
counsel did not provide reasonably effective assistance in view of prevailing professional
norms; and (2) defense counsel’s deficient performance was prejudicial. (See People v.
Oden (1987) 193 Cal.App.3d 1675, 1681, citing Strickland v. Washington (1984) 466
U.S. 668, 687-688.) “It is . . . particularly difficult to establish ineffective assistance of
counsel on direct appeal, where we are limited to evaluating the appellate record. If the
record does not shed light on why counsel acted or failed to act in the challenged manner,
we must reject the claim on appeal unless counsel was asked for and failed to provide a
satisfactory explanation, or there simply can be no satisfactory explanation.” (People v.
Scott (1997) 15 Cal.4th 1188, 1212.)

17.
 The record before us “ ‘does not illuminate the basis for the attorney’s challenged
acts or omissions . . . .’ ” (People v. Silvey (1997) 58 Cal.App.4th 1320, 1329.) Defense
counsel was never asked to explain why she did not object to the evidence or remarks in
question. Furthermore, “ ‘ “[a]n attorney may choose not to object for many reasons, and
the failure to object rarely establishes ineffectiveness of counsel” [citation].’ [Citation.]”
(People v. Gurule (2002) 28 Cal.4th 557, 609-610; see People v. Jones (2003) 29 Cal.4th
1229, 1254 [“ ‘ “[T]here is a ‘strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.’ ” ’ ”]; People v. Riel (2000) 22 Cal.4th
1153, 1185 [“ ‘Generally, failure to object is a matter of trial tactics as to which we will
not exercise judicial hindsight. . . . A reviewing court will not second-guess trial
counsel’s reasonable tactical decisions.’ ”].) Accordingly, we reject defendant’s claims
of ineffective assistance of counsel.

c. Cumulative error
Defendant contends that the cumulative effect of the asserted errors requires
reversal of one of his convictions for failure to appear. Because we have concluded there
were no errors, defendant’s claim of cumulative error fails. (People v. Bacon (2010) 50
Cal.4th 1082, 1129, People v. Heard (2003) 31 Cal.4th 946, 982.)
II. Defendant’s conviction for willful infliction of corporal injury on a cohabitant
Defendant contends his conviction on count IV in case No. CRF52089 must be
reversed on two grounds: (1) violation of the Sixth Amendment’s confrontation clause;
and (2) instructional error. For the reasons set forth below, we affirm the conviction.
a. Confrontation clause
The prosecution moved in limine to admit into evidence the victim’s statements to
Leyva at the hospital. Defense counsel argued these statements were testimonial and
subject to the Sixth Amendment’s confrontation clause. At a motion hearing, the
prosecution stated the victim “has effectively evaded the process and has not been in

18.
contact with anybody since she was released from the hospital” and described numerous
unsuccessful attempts to contact her. Later, the trial court ruled:

“[T]he statement of the victim at the [hospital]. This was a statement made
. . . to Deputy Leyva. I think I will admit that statement . . . for it was
sometime after the event, but the condition of the victim as described would
suggest that she was still suffering trauma of the incident and that the
statement would qualify as a spontaneous statement.”
During trial, at the outset of Leyva’s testimony, defense counsel “renew[ed] [his]
objection on . . . Sixth Amendment grounds” and advised “it’s going to be . . . ongoing
. . . .” The court overruled the objection. Leyva testified he initially encountered the
victim at Howard’s residence and subsequently accompanied her to the hospital. (See
ante, at p. 7.) There, he asked her to “tell [him] what happened” and “she just rolled right
into it.” (Italics omitted.)
The victim revealed she and defendant resided in Placerville and “were in a dating
relationship for approximately seven months.” Two days earlier, they went to
defendant’s father’s residence in East Sonora because defendant “wanted to help his dad
out around the house and run errands and things like that.” At some point, the victim
came across defendant in a bathroom “with a needle in his arm.” She “stormed out of the
bathroom . . . because she was so upset.” The two argued in a bedroom “for about 15 to
20 minutes.” When the victim made “some type of . . . shooing motion,” defendant
“became extremely upset and snapped.” He “jumped on top of [her]” and “pinned her to
the bed.” The victim “scratch[ed], punch[ed], kick[ed,] and scream[ed]” and defendant
“slap[ped] her across the left side of the face with an open palm or open hand.” He
eventually got off. However, as the victim was walking to the bathroom, defendant
punched her in the back of the head, causing her to see “dark spots” and collapse. Fifteen
minutes later, she stood up, gathered her belongings, and left.
The victim was “about four houses away from [defendant’s father’s] residence”
when defendant pulled up in his truck. He claimed “he was going back to Placerville”

19.
and instructed her “to get in” “if she wanted a ride.” The victim complied because “she
had no cell phone and no other way to get back home . . . .” During the drive, defendant
tried to argue with her. When the victim ignored him, he threatened to strand her.
Defendant stopped in a turnout and a quarrel ensued. He exited the vehicle to “retrieve[]
a rifle pellet gun from the back of the truck” and “started to . . . target practice with the
nearby rocks and trees.” The victim, who “did not want [defendant] to get the idea of
possibly using the gun on her,” took a canister of pellets from the top of the dashboard
and tossed it out the window. Defendant reentered the truck, yelled at her, and “struck
her with the stock end of the rifle” “on the left arm.” The victim screamed “he was now
going to go to jail for what he did.” Defendant punched the back of her head twice.
Thereafter, the victim exited the vehicle and ended up at Howard’s residence.
In its closing argument, the prosecution distinguished between the events
underlying counts II and IV, respectively:

“So we’ve got [c]ount [II] is when [defendant] punched [the victim] in the
back of the head at his father’s house. . . . Count [IV] is when he punches
her in the truck.”
“[T]he confrontation clause of the Sixth Amendment to the federal Constitution
prohibits ‘admission of testimonial statements of . . . witness[es] who did not appear at
trial unless [the witness] was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.’ ” (People v. Romero (2008) 44 Cal.4th 386, 421,
italics omitted, quoting Crawford v. Washington (2004) 541 U.S. 36, 53-54.)
“Statements are testimonial if the primary purpose was to produce evidence for possible
use at a criminal trial; they are nontestimonial if the primary purpose is to deal with a
contemporaneous emergency such as assessing the situation, dealing with threats, or
apprehending a perpetrator.” (People v. Romero, supra, at p. 422.) In the instant case,
the Attorney General concedes the victim’s statements at the hospital were testimonial

20.
and defendant “correctly identifies an error in the trial court’s confrontation clause
analysis.”11
“Confrontation clause violations are subject to federal harmless-error analysis
under Chapman . . . .” (People v. Geier, supra, 41 Cal.4th at p. 608.) “The harmless
error inquiry asks: ‘Is it clear beyond a reasonable doubt that a rational jury would have
found the defendant guilty absent the error?’ [Citation.]” (Ibid.)
“Any person who willfully inflicts corporal injury resulting in a traumatic
condition upon a [cohabitant] is guilty of a felony . . . .” (§ 273.5, subd. (a); see id.,
subd. (d) [“ ‘[T]raumatic condition’ means a condition of the body, such as a wound, or
external or internal injury, including, but not limited to, injury as a result of strangulation
or suffocation, whether of a minor or serious nature, caused by a physical force.”]; see,

11 The Attorney General argues defendant “forfeited his right to confront the victim
by dissuading her from testifying . . . .” (See Davis v. Washington (2006) 547 U.S. 813,
833 [“[O]ne who obtains the absence of a witness by wrongdoing forfeits the
constitutional right to confrontation.”].) “The forfeiture by wrongdoing doctrine is
codified in [Evidence Code] section 1390.” (People v. Kerley (2018) 23 Cal.App.5th
513, 550, fn. omitted.)
Evidence Code section 1390 provides, in pertinent part:
“(a) Evidence of a statement is not made inadmissible by the
hearsay rule if the statement is offered against a party that has engaged, or
aided and abetted, in the wrongdoing that was intended to, and did, procure
the unavailability of the declarant as a witness.
“(b)(1) The party seeking to introduce a statement pursuant to
subdivision (a) shall establish, by a preponderance of the evidence, that the
elements of subdivision (a) have been met at a foundational hearing.”
Defendant points out “[t]he prosecut[ion]’s motion [in limine] made no mention of
the forfeiture by wrongdoing doctrine or [Evidence Code] section 1390, and it did not
request the foundational evidentiary hearing required by [Evidence Code] section 1390.”
The Attorney General acknowledges the prosecution “made no formal motion under
Evidence Code section 1390 to admit the victim’s statements via forfeiture by
wrongdoing.”

21.
e.g., Conservatorship of Lee C. (2017) 18 Cal.App.5th 1072, 1095 [bruise]; People v.
Wilkins (1993) 14 Cal.App.4th 761, 771 [“redness about [the victim’s] face and nose”].)
The record demonstrates law enforcement recovered an air rifle and a cell phone
from defendant’s truck on May 31, 2016. The phone contained an audio recording of an
exchange between defendant and the victim inside that vehicle on the same date. At first,
the pair expressed their mutual animosity verbally. Defendant used profanity, divulged
he had previously “beat” the victim, and threatened to “shoot [her] right in the forehead”
and “punch [her] right in the face.” Apparently, the altercation escalated. The victim
cried, “Owww . . . .” She then screamed and sobbed unremittingly and pleaded for help
as well as her release. Meanwhile, defendant continued to use profanity, expressed his
hatred for the victim; wished for her to “never see again” and “die”; and said he would
“punch [her] right in the mouth”; “knock the fucking shit out of [her],” and “kill [her]
deader than shit,” inter alia. Before leaving the truck, the victim told defendant he was
“going to jail” and she was “calling the cops on [him].”
Thereafter, Howard came across the victim in front of his home. She was hurt and
in distress. The victim stated she was “pistol whipped” and “dumped . . . off” by
defendant. Howard observed redness on her face and bruises on her arms. Leyva, who
arrived soon afterward, also observed and later photographed the various injuries to the
victim’s head, neck, and arms. Before she was transported to the hospital, the victim—
who was “crying hysterically,” “[a]ppeared to be in a lot of pain,” and “had trouble
speaking”—told Leyva defendant struck her with “the stock end of a pellet gun.”
Deputies tracked defendant to Kevin’s mobilehome, but defendant immediately fled the
scene. Thus, even without the challenged statements, it is clear beyond a reasonable
doubt that a rational jury would have found defendant guilty of willful infliction of
corporal injury on a cohabitant on count IV.

22.
 b. Instructional error
Defendant challenges his felony conviction for infliction of corporal injury
resulting in a traumatic condition in count IV in case No. CRF52089 (§ 273.5, subd. (a))
on the ground the trial court failed to instruct on the lesser included offense of
misdemeanor battery on a cohabitant (§ 243, subd. (e)(1)).
In its summation, the prosecution discussed which acts constituted count IV.
Those acts included defendant punching the victim in the back of the head twice, while
they were in the truck, resulting in two dime-sized bumps.
Defendant concedes that there was evidence the victim was injured during the
altercation in the truck, and that the victim said she was struck with a pellet rifle on her
left arm and was hit twice on the head. He also concedes Leyva felt the two lumps on the
victim’s head. Defendant does not dispute that audio recording played for the jury
related to the altercation in the truck. He claims, though, that the jury could have
concluded the victim was not credible and that all her injuries were inflicted during the
prior altercation at defendant’s father’s house. As a result, the argument goes, there was
substantial evidence defendant did not inflict corporal injury resulting in a traumatic
condition during the altercation in the truck so the trial court erred in not instructing on
the lesser related offense.
The Attorney General responds that the evidence clearly shows defendant directly
applied physical force to the victim in the truck, which resulted in bodily injury, and so
instruction on the lesser related offense of misdemeanor battery on a cohabitant was not
warranted. We agree with the Attorney General.
Prior to summations, the trial court instructed the jury:

“[CALCRIM No. 840 (Inflicting Injury on Spouse, Cohabitant, or
Fellow Parent Resulting in Traumatic Condition):] . . . [D]efendant is
charged in [c]ount [II] and [IV] with inflicting an injury on someone with
whom . . . defendant had or previously had a dating relationship that

23.
 resulted in a traumatic condition, a violation of . . . [s]ection 273.5[,
subdivision ](a).

“To prove that . . . defendant [is] guilty of this crime, the People
must prove that[:] [¶] [(1)] . . . defendant willfully inflicted a physical
injury on someone with whom he had or previously had a dating
relationship; and [¶] [(2)] the injury inflicted by . . . defendant resulted in a
traumatic condition.

“Someone commits an act willfully when he or she does it willingly
or on purpose. A traumatic condition is a wound or other bodily injury,
whether minor or serious, caused by [the] direct application of physical
force.

“A traumatic condition is [the] result of an injury . . . if the traumatic
condition was a natural and probable consequence of the injury; and [¶] . . .
the injury was a direct and substantial factor in causing the condition; and
[¶] . . . the condition would not have happened without the injury.

“A natural and probable consequence[] is one that a reasonable
person would know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider all of the
circumstances established by the evidence.

“A substantial factor is more than a trivial or remote factor;
however, it does not need to be the only factor that resulted in the traumatic
condition.”
As previously stated, “[a] claim of instructional error is reviewed de novo.”
(People v. Ghebretensae, supra, 222 Cal.App.4th at p. 759, citing People v. Guiuan,
supra, 18 Cal.4th at pp. 569-570.)
A trial court is obligated to instruct on lesser included offenses “ ‘when the
evidence raises a question as to whether all of the elements of the charged offense were
present [citation], but not when there is no evidence that the offense was less than that
charged. [Citations.]’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154.) “[T]he
existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser
included offense, but such instructions are required whenever evidence that the defendant
is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the

24.
jury. [Citations.] ‘Substantial evidence’ in this context is ‘ “evidence from which a jury
composed of reasonable [persons] could . . . conclude[]” ’ that the lesser offense, but not
the greater, was committed. [Citations.]” (Id. at p. 162.)
As noted, “[a]ny person who willfully inflicts corporal injury resulting in a
traumatic condition upon a [cohabitant] is guilty of a felony . . . .” (§ 273.5, subd. (a).)
“It is injury resulting in a traumatic condition that differentiates this crime from lesser
offenses” (People v. Gutierrez (1985) 171 Cal.App.3d 944, 952, italics omitted), such as
battery in violation of section 243, subdivision (e)(1)12 (People v. Hamlin (2009) 170
Cal.App.4th 1412, 1457). Based on the record, a rational jury could not conclude
defendant committed misdemeanor battery of a cohabitant but not willful infliction of
corporal injury on a cohabitant. (See ante, at p. 22.) Accordingly, we find the court had
no obligation to instruct the jury on the lesser included offense.
III. On-bail enhancements
In case No. CRF52089, the trial court (1) imposed two on-bail enhancements on
count IV; and (2) imposed but stayed two on-bail enhancements on count I. In case
No. CRF50084, the court imposed an on-bail enhancement but struck it pursuant to
section 1385. In case No. CRF50586, the court imposed an on-bail enhancement.
Defendant argues it was error for the trial court to impose more than two on-bail
enhancements.
The Attorney General admits “[t]he trial court could only impose two on-bail
enhancements as part of [defendant]’s aggregate sentence, because [defendant] was
released on bail in two separate cases when he committed the most recent offenses” and
“[a]ny on-bail enhancements in excess of two were unauthorized.” We accept this

12 “When a battery is committed against . . . a person with whom the defendant is
cohabitating, . . . the battery is punishable by a fine not exceeding two thousand dollars
($2,000), or by imprisonment in a county jail for a period of not more than one year, or
by both that fine and imprisonment.” (§ 243, subd. (e)(1).)

25.
concession. Only two on-bail allegations may be imposed: one for committing an
offense while released from custody on bail in case No. CRF48393 and one for
committing an offense while released from custody on bail in case No. CRF50084. On
remand, all but two of defendant’s on-bail enhancements must be stricken.
IV. Senate Bill No. 1393
At the time defendant was sentenced, section 667, former subdivision (a)(1),
provided, in part:

“In compliance with subdivision (b) of [s]ection 1385, any person
convicted of a serious felony who previously has been convicted of a
serious felony in this state . . . shall receive, in addition to the sentence
imposed by the court for the present offense, a five-year enhancement for
each such prior conviction on charges brought and tried separately.”
Section 1385, subdivision (a) and former subdivision (b) then provided, in part:

“(a) The judge or magistrate may, either of his or her own motion or
upon the application of the prosecuting attorney, and in furtherance of
justice, order an action to be dismissed. . . .

“(b) This section does not authorize a judge to strike any prior
conviction of a serious felony for purposes of enhancement of a sentence
under [s]ection 667.”
After defendant was sentenced, but while his case was still pending on appeal, the
Legislature enacted Senate Bill No. 1393 (Stats. 2018, ch. 1013, § 1). As of January 1,
2019, section 667, subdivision (a)(1), provides, in pertinent part:

“Any person convicted of a serious felony who previously has been
convicted of a serious felony in this state . . . shall receive, in addition to the
sentence imposed by the court for the present offense, a five-year
enhancement for each such prior conviction on charges brought and tried
separately.”
Former subdivision (b) of section 1385 was deleted (Stats. 2018, ch. 1013, § 2, eff. Jan. 1,
2019).
In his opening brief, defendant asserts Senate Bill No. 1393 applies retroactively
to the case and a remand for reconsideration of sentencing is proper. The Attorney

26.
General agrees. We accept this concession. On remand, the trial court shall have an
opportunity to exercise its sentencing discretion as to the prior serious felony
enhancement imposed in case No. CRF52089.
V. Dueñas
Citing Dueñas, supra, 30 Cal.App.5th 1157, defendant contends the court
improperly imposed fines without determining whether he had the ability to pay them.
Because we are remanding the case for resentencing, we need not address this claim. On
remand, defendant—if he should choose to do so—may raise the argument during
resentencing. (See People v. Buycks (2018) 5 Cal.5th 857, 893 [“[W]hen part of a
sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all
counts is appropriate, so the trial court can exercise its sentencing discretion in light of
the changed circumstances.’ ”].)
VI. Senate Bill No. 136
At the time defendant was sentenced, section 667.5, former subdivision (b),
provided, in part:

“[W]here the new offense is any felony for which a prison sentence
or a sentence of imprisonment in a county jail under subdivision (h) of
[s]ection 1170 is imposed or is not suspended, in addition and consecutive
to any other sentence therefor, the court shall impose a one-year term for
each prior separate prison term or county jail term imposed under
subdivision (h) of [s]ection 1170 or when sentence is not suspended for any
felony . . . .”
After defendant was sentenced, but while his case was still pending on appeal, the
Legislature enacted Senate Bill No. 136 (Stats. 2019, ch. 590, § 1), which now provides,
in pertinent part:

“[W]here the new offense is any felony for which a prison sentence
or a sentence of imprisonment in a county jail under subdivision (h) of
[s]ection 1170 is imposed or is not suspended, in addition and consecutive
to any other sentence therefor, the court shall impose a one-year term for
each prior separate prison term for a sexually violent offense as defined in

27.
 subdivision (b) of [s]ection 6600 of the Welfare and Institutions Code . . . .”
(§ 667.5, subd. (b).)
In his supplemental brief, defendant asserts Senate Bill No. 136 applies
retroactively to the case and asks us to strike the four prior prison term enhancements
because none of the underlying offenses was a sexually violent offense. The Attorney
General agrees. We accept this concession. On remand, the prior prison term
enhancements must be stricken.
DISPOSITION
The matter is remanded to the trial court with directions to: (1) strike all but two
of defendant’s on-bail enhancements; (2) exercise its sentencing discretion as to the prior
serious felony enhancement pursuant to section 1385, as amended by Senate Bill
No. 1393, (3) strike the four prior prison term enhancements pursuant to section 667.5,
subdivision (b) as amended by Senate Bill No. 136; (4) resentence defendant accordingly;
and (5) prepare an amended abstract of judgment and forward a certified copy to the
Department of Corrections and Rehabilitation. In all other respects, the judgments are
affirmed.

DETJEN, J.
WE CONCUR:

HILL, P.J.

SNAUFFER, J.

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