Filed 10/14/21 P. v. Lankford CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E072649
v. (Super.Ct.Nos. RIF1803987 &
RIF1804692)
DANTE MAURICE LANKFORD,
OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed with directions.
Christine Vento, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V.
Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
1
I. INTRODUCTION
Defendant, Dante Maurice Lankford, was convicted by a jury of 22 criminal
offenses as a result of multiple incidents involving his wife, Jane Doe. As relevant to this
appeal, defendant’s convictions included making a criminal threat (Pen. Code, § 422,1
count 2) and assault with a firearm (§ 245, subd. (a)(2), count 3), as the result of an
incident in December 2017; stalking (§ 646.9, subd. (b), count 6), inflicting corporal
injury on a spouse (§ 273.5, subd. (f)(2), count 7), and making a criminal threat (§ 422,
count 9), as the result of an incident on June 10, 2018; one count of dissuading a witness
by use of force (§ 136.1, subd. (c)(1), count 13), as the result of an incident on
June 18, 2018; and one count of dissuading a witness (§ 136.1, subd. (a)(2), count 22), as
a result of jail calls made in December 2018.2
Defendant was sentenced to an aggregate term of 45 years in state prison and
ordered to pay various fines and fees. As relevant to this appeal, his sentence includes
1 Undesignated statutory references are to the Penal Code.
2 In full, defendant was convicted of two counts of committing corporal injury on
a spouse or cohabitant resulting in a traumatic condition (Pen. Code, § 273.5, subd. (f)(2),
counts 1 & 7), two counts of communicating criminal threats (Pen. Code, § 422, counts 2
& 9), one count of assault with a firearm (Pen. Code, § 245, subd. (a)(2), count 3), one
count of possession of a firearm by a prohibited person (Pen. Code, § 29800, subd. (a)(1),
count 4), seven counts of violating a protective order (Pen. Code, § 166, subd. (c)(1),
counts 5, 12, 15, 16, 18, 21, & 23), one count of stalking (Pen. Code, § 646.9, subd. (b),
count 6), one count of assault by means of force likely to produce great bodily injury
(Pen. Code, § 245, subd. (a)(4), count 8), one count of driving or taking a vehicle without
consent (Veh. Code, § 10851, subd. (a), count 10), one count of first-degree burglary
(Pen. Code, § 459, count 11), two counts of dissuading a witness (Pen. Code, § 136.1,
counts 13 & 22), two counts of battery of a spouse or cohabitant (Pen. Code, § 243,
subd. (e)(1), counts 14 & 20), and two counts of robbery (Pen. Code, § 211, counts 17 &
19).
2
consecutive, unstayed sentences on counts 6, 7, and 9; two full midterm sentences for
each of his convictions for dissuading a witness pursuant to section 1170.15; a one-year
enhancement as a result of a prior prison term (§ 667.5, subd. (b)); and an order to pay
$1,500 in incarceration costs pursuant to section 1203.1c.
On appeal, defendant contends: (1) the trial court violated his constitutional right
to counsel when it denied his request to discharge retained counsel; (2) his convictions
for making criminal threats (counts 2 & 9) and assault with a firearm (count 3) were not
supported by substantial evidence; (3) the trial court erred in imposing consecutive
sentences on counts 6 and 7; (4) the trial court erred in applying section 1170.15 to
impose full midterm sentences for his convictions for dissuading a witness; (5) his one-
year enhancement pursuant to section 667.5, subdivision (b), should be stricken due to
subsequent amendments to that statute; and (6) the order to pay incarceration costs
pursuant to section 1203.1c is unauthorized. We conclude the trial court did not abuse its
discretion in denying defendant’s untimely request to discharge counsel; substantial
evidence in the record supports the jury’s verdict on counts 2, 3, and 9; and substantial
evidence in the record supports the trial court’s sentencing decisions. However, we agree
with defendant that his one-year enhancement pursuant to section 667.5, subdivision (b),
and the order to pay incarceration costs pursuant to section 1203.1c should be stricken.
Accordingly, we order that the judgment be modified, and we affirm the judgment as
modified.
3
II. FACTS & PROCEDURAL HISTORY3
A. Facts and Charges
Jane Doe and defendant had been married for more than 10 years. According to
Jane Doe, defendant was verbally and physically abusive throughout their relationship.
During the course of their relationship, at least three separate protective orders were
issued against defendant, prohibiting various contact with Jane Doe as a result of alleged
abuse.4
As relevant to this appeal, defendant was charged with inflicting corporal injury
on a spouse (§ 273.5, subd. (f)(2), count 1); making a criminal threat (§ 422, count 2) and
assault with a firearm (§ 245, subd. (a)(2), count 3), as the result of an incident in
December 2017; stalking (§ 646.9, subd. (b), count 6), inflicting corporal injury on a
spouse (§ 273.5, subd. (f)(2), count 7), and making a criminal threat (§ 422, count 9), as
the result of an incident on June 10, 2018; dissuading a witness by use of force (§ 136.1,
subd. (c)(1), count 13), as the result of an incident on June 18, 2018; and dissuading a
witness (§ 136.1, subd. (a)(2), count 22), as the result of communications made in
December 2018.
3 Because defendant was convicted of more than 20 different offenses that were
committed over the course of more than a year, and because defendant has only
challenged some of these convictions on appeal, we summarize only the evidence
relevant to the issues raised on appeal.
4 Specifically, on September 12, 2016, a criminal protective order was issued
prohibiting defendant from contacting Jane Doe; a new protective order was issued
prohibiting negative contact with Jane Doe on January 17, 2017; and a third protective
order prohibiting negative contact with Jane Doe on June 25, 2018.
4
B. Relevant Evidence at Trial
1. Testimony of Jane Doe
Jane Doe testified that defendant was her husband, and the two had a relationship
for 10 years, but she had since separated from him. They had three children together.
She claimed defendant was verbally and physically abusive throughout their relationship.
Jane Doe recalled an incident with defendant that involved a firearm. At the time
of this incident, Jane Doe was home with her three children and her sister. She recalled
arguing with defendant. When Jane Doe asked defendant to leave their home, defendant
walked to the second floor of the home, retrieved a handgun, returned to the first floor of
the home, pointed the gun in Jane Doe’s face, and threatened to shoot her. Jane Doe
froze and told defendant that if he was intent on shooting her, he should go ahead and do
it. While she was afraid, she was also exhausted from constantly fighting because
defendant would not let go of their relationship. When Jane Doe’s sister intervened,
defendant ran to his car and drove away. Jane Doe later acknowledged that this incident
occurred sometime in December 2017.
Jane Doe further testified that during the summer of 2018, defendant returned to
her home on a number of occasions. Defendant was not supposed to be present at their
home because Jane Doe had obtained a restraining order against him, and she had to call
911 for help on about four of these occasions.
On June 10, 2018, Jane Doe was in the bathroom when defendant came to her
home uninvited. She testified defendant was not supposed to be at the home because she
had obtained a restraining order, she had explicitly told defendant he was not welcome in
5
the home, and she did not invite him inside the home. Defendant argued with Jane Doe
and verbally harassed her with disparaging comments. At some point, the argument
escalated, and defendant approached Jane Doe and began to physically strangle her. Jane
Doe believed defendant began to strangle her when she tried to scream. Finally, while in
the process of strangling Jane Doe, defendant verbally threatened to kill her, stating,
“ ‘I’m going to kill you.’ ” Jane Doe stated that she did not believe defendant, but she
also stated that she feared for her life and worried she would die. When their three-year-
old son interrupted them, defendant let go of Jane Doe, took her keys, and drove her van
away from the home.
Jane Doe testified that, following the June 10, 2018 incident, defendant “kept
coming back, and I kept reporting him to the police.” However, on each occasion,
defendant left before the police arrived in response.
On June 18, 2018, Jane Doe, her two children, and a neighbor were in the living
room of Jane Doe’s home when defendant broke into the home through a rear entrance.
Following an argument with Jane Doe, defendant took Jane Doe’s telephone and car
keys, ran out of the home, and drove away.
On July 2, 2018, defendant came to Jane Doe’s home while her mother was
visiting. Jane Doe explained to defendant that he was not supposed to be at the home.
When she wouldn’t let defendant into the home, he began to yell outside the house. Jane
Doe’s mother called 911, and the police eventually found defendant on the street nearby
Jane Doe’s home.
6
On July 13, 2018, Jane Doe was planning a party for her birthday. When she
walked out of her home in order to pick up some items from the store, she found
defendant waiting outside the home with flowers and a card. When Jane Doe would not
accept defendant’s gifts, defendant grabbed her car and house keys and left.
2. Testimony of Jane Doe’s Neighbor
Jane Doe’s neighbor recalled an incident in the “middle” of 2018. The neighbor,
Jane Doe, Jane Doe’s children, and the neighbor’s little brother were inside Jane Doe’s
home when defendant walked into the home through the kitchen. Defendant and Jane
Doe began arguing. At some point, defendant grabbed the neighbor’s cell phone out of
her hands and left the house. The neighbor eventually found her cell phone on the grass
outside of her home. The neighbor confirmed that, at the time, she reported to sheriff’s
deputies that during the argument between Jane Doe and defendant, defendant grabbed
the base of Jane Doe’s telephone to prevent Jane Doe from calling 911.
3. Testimony of Sheriff’s Deputies
Deputy R. testified that he is a deputy with the Riverside County Sheriff’s
Department and had been dispatched to a residence in Moreno Valley on
December 9, 2017, following a report of a domestic altercation involving a gun. When
he arrived, he encountered Jane Doe and her sister, who both appeared “excited.” He
described Jane Doe as being “hysterical” and “loud” as she was trying to report events to
the deputy. He confirmed that, at the time, Jane Doe reported that defendant pointed a
gun at her and told her, “ ‘I will shoot you in the face.’ ” The deputy eventually
discovered that the incident occurred the previous day.
7
A second sheriff’s deputy, Deputy B., testified that he was dispatched to a
residence in Moreno Valley on June 10, 2018. A neighbor had reported hearing screams
and objects breaking inside the residence. When Deputy B. arrived at the residence, he
encountered Jane Doe, who had visible physical injuries and appeared to display a range
of emotions while speaking with the deputy. He observed injuries on Jane Doe’s left eye
and nose, as well as a long scratch extending from her shoulder to her right breast.
A third sheriff’s deputy, Deputy Z., testified that he was dispatched to a residence
in Moreno Valley on July 2, 2018,5 in response to a reported restraining order violation.
Deputy Z. encountered Jane Doe at the residence, who complained that law enforcement
had not been doing enough to keep defendant away from her home. The deputy later
discovered defendant inside a vehicle parked at the end of the street where Jane Doe’s
home was located. Ultimately, the deputy supervised defendant in retrieving some
personal items from Jane Doe’s home and let defendant leave the area.
Deputy Z. was also dispatched to the same residence on July 13, 2018, in response
to a reported restraining order violation. The deputy encountered Jane Doe on the front
porch of the residence and observed flowers and a card discarded on the ground nearby.
The deputy did not encounter defendant at the residence and, when the deputy contacted
defendant by telephone, defendant claimed to be in Los Angeles.
5 The prosecutor appears to have initially stated the date incorrectly in
questioning the deputy but later corrected the date in subsequent questioning.
8
4. Recorded 911 Calls
A recording of a 911 call placed on June 10, 2018, was played for the jury. The
caller reported that a neighbor, who was multiple houses away, was engaged in a
domestic fight. The caller reported hearing items breaking within the house; hearing
“booms and loud and everything”; hearing someone yell, “ ‘Get off of me’ ”; and hearing
a male voice say, “ ‘I’m gonna shoot you.’ ” After walking down the street to investigate
further, the caller identified Jane Doe’s home as the address of the domestic dispute.
A recording of a 911 call placed on June 18, 2018, was played for the jury. In the
recording, Jane Doe stated she had recently reported a domestic violence dispute with
defendant and recently reported that defendant had stolen her vehicle. Jane Doe stated
defendant had returned and broken into her house, yet again, and injured her arm. She
further reported that defendant took her cell phone, the house phone, and a visiting
neighbor’s cell phone. Unprompted, Jane Doe proceeded to explain to the dispatcher that
she had previously reported that defendant had threatened her with a weapon, that the
responding officer at the time told her she could not prove those allegations, and that she
had since found where she believed defendant had hidden the weapon.
A recording of a 911 call placed on July 2, 2018, was played for the jury. In the
recording, Jane Doe’s mother reported she was at Jane Doe’s home; defendant showed up
at the home and was trying to throw and break things; and defendant was not supposed to
be present because of a restraining order.
A recording of a 911 call placed on July 13, 2018, was played for the jury. In the
recording, Jane Doe reported she walked out of her home, intending to go to the grocery
9
store, but encountered defendant on the street outside her home, holding flowers and a
card. Jane Doe told him there was a restraining order in place and that he should leave.
Defendant was angry, took Jane Doe’s keys out of her hands, and drove her car away.
5. December 2018 Jail Calls
Multiple recorded calls placed by defendant in December 2018 while he was
incarcerated in the county jail awaiting trial were played for the jury. In one call,
defendant repeatedly asked Jane Doe to lie when giving testimony in court. In another
call, defendant repeatedly told Jane Doe that “if somethin’ happened to [her],” their
children would not have anyone to take care of them. Jane Doe asked on multiple
occasions for defendant to state what he believed would happen to her, but defendant
never provided a direct answer and continued to plead with Jane Doe to consider the
welfare of their children “if somethin’ happen to you . . . .”
C. Verdict and Sentence
On March 22, 2019, the jury convicted defendant on all charges alleged, except for
one count of burglary (count 11). The jury also found true each of the special allegations
charged. In a bifurcated proceeding, defendant admitted he suffered the prior conviction
alleged as the basis for a serious felony, prior strike, and prison prior enhancement.
10
Defendant was sentenced to a total aggregate term of 45 years in state
prison and ordered to pay various fines and fees.6 The sentence included consecutive,
unstayed sentences on counts 6, 7, and 9; two full midterm sentences for each of his
6 In full, the trial court pronounced judgment as follows:
With respect to the December 2017 incident, defendant was sentenced to 16 years
(§ 422, count 2), representing the upper term of three years for making a criminal threat,
doubled as the result of his prior strike offense (§§ 667, subds. (c), (e)(1), 1170.12,
subd. (c)(1)) and enhanced by 10 years for the personal use of a firearm (§ 12022.5,
subd. (a)); a consecutive term of three years four months (§ 273.5, subd. (f)(2), count 1),
representing one-third the midterm for inflicting corporal injury on a spouse, doubled as a
result of the strike prior, and enhanced by one year four months for causing great bodily
injury (§ 12022.7); and a concurrent term of 180 days in county jail for violating a
protective order (§ 166, subd. (c)(1), count 5). The trial court imposed a sentence of three
years for assault with a firearm (§ 245, subd. (a)(2), count 3) and two years for prohibited
possession of a firearm (§ 29800, subd. (a)(1), count 4), but stayed those sentences
pursuant to section 654.
With respect to the June 10, 2018 incident, the trial court sentenced defendant to a
consecutive term of two years for stalking (§ 646.9, subd. (b), count 6), two years for
inflicting corporal injury on a spouse (§ 273.5, subd. (f)(2), count 7), one year four
months for making a criminal threat (§ 422, count 9), and one year four months for taking
a vehicle without consent (Veh. Code, § 10851, subd. (a), count 10), representing one-
third the midterm for each offense, doubled as a result of a strike. The trial court also
sentenced defendant to a concurrent term of 180 days in county jail for violation of a
protective order (§ 166, subd. (c)(1), count 12) and a consecutive term of six years in
state prison for dissuading a witness (§ 136.1, count 13), representing a full middle term
pursuant to section 1170.15, doubled as a result of defendant’s prior strike. Finally, the
trial court imposed a midterm sentence of three years for assault (§ 245, subd. (a)(4),
count 8) but stayed the sentence pursuant to section 654.
With respect to the other incidents, the trial court sentenced defendant to two
concurrent terms of 180 days for battery of a spouse (§ 243, subd. (e)(1), counts 14 &
20); five concurrent terms of 180 days for violations of a protective order (§ 166,
subd. (c)(1), counts 15, 16, 18, 21, & 23); two consecutive terms of two years for robbery
(§ 211, counts 17 & 9), representing one-third the midterm, doubled for a prior strike; and
a consecutive term of four years for dissuading a witness (§ 136.1, count 22),
representing a full midterm pursuant to section 1170.15, doubled as a result of a strike
prior.
Finally, while the trial court did not specifically recite section 667, subdivision (a),
defendant admitted he suffered a prior conviction for a serious felony and, at the time of
[footnote continued on next page]
11
convictions for dissuading a witness pursuant to section 1170.15; a one-year
enhancement as a result of a prior prison term (§ 667.5, subd. (b).);7 and an order to pay
$1,500 in incarceration costs pursuant to section 1203.1c.
III. DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Denying Defendant’s Request To
Discharge Counsel
On appeal, defendant contends the trial court erred in denying his request to
discharge counsel. We disagree.
1. Relevant Background
On January 9, 2019, defendant requested, and the trial court granted, a substitution
of counsel to replace his court-appointed counsel with privately retained counsel.
On March 8, 2019, defendant’s case was called for trial. The trial court and
counsel discussed time estimates for the trial and agreed to time-qualify prospective
jurors based upon that estimate. Defendant requested bifurcation of trial on the issue of
any prior conviction and, after being advised of his right to have a jury determine the
issue, defendant waived his right to a jury trial on the truth of any prior convictions. The
sentencing, the trial court orally pronounced that it was sentencing defendant to an
aggregate term of 45 years in state prison. Based upon the terms imposed for each
conviction, the trial court could not have reached this aggregate term absent the
imposition of a five-year enhancement pursuant to that statute, and the subsequent minute
order and abstract of judgment confirm the trial court imposed the enhancement.
7 The abstract of judgment indicates that this enhancement was imposed but
stayed.
12
parties then argued, and the trial court resolved multiple pretrial motions regarding
procedural and evidentiary issues.
One of the pretrial motions requested leave to file an amended information to add
a special allegation that defendant had suffered a prior strike offense. Following
argument on the issue, the trial court found no prejudice to defendant and permitted the
filing of the amended information. After a break in the proceedings, the trial court noted
that, in addition to being a lengthy trial, the nature of the case involved extensive
allegations of domestic violence and would likely result in many juror requests to be
excused. As a result, counsel and the trial court agreed to order 70 jurors for the morning
and an additional 30 jurors to be on call in the afternoon for the following day of trial.
Defendant then proceeded to request the court provide an indicated sentence in
order to consider the possibility of pleading to all the charges. The trial court agreed to
take a further look at the case in order to do so and, after a break in the proceedings,
provided defendant with an indicated sentence of “roughly 36 years” in state prison. In
response, defendant declined to change his plea and elected to move forward with a trial.
On March 11, 2019, one of the prosecution’s subpoenaed witnesses appeared and,
after conferring with counsel, the trial court ordered the witness to return to court in three
days to provide testimony. Thereafter, defendant again requested that the trial court
“consider recalculating the indicated [sentence] and instead of using the mid-term, use
the low-term.” The trial court declined the request, stating it would not engage in plea
bargaining. In response, defendant claimed he needed more time to speak with his
retained counsel because he had not been fully informed of the charges and potential
13
penalties associated with the charges. Following a short recess to permit defendant to
confer with his counsel, jury voir dire commenced.
During a break in the voir dire proceedings, defendant requested the trial court “do
whatever the equivalent is of a Marsden motion for retained counsel.”8 The trial court
proceeded to hold a Marsden-type hearing in which it permitted defendant to present his
reasons for requesting the discharge of his counsel. During this hearing, defendant
complained that additional charges had been added at the time of his preliminary hearing,
and he never received an explanation for those new charges. However, both his counsel
and the trial court noted that this complaint was not relevant because defendant was
represented by different counsel at the time.
After permitting defendant to set forth his reasons for requesting the discharge of
his counsel, the trial court denied defendant’s request. Specifically, the trial court stated:
“Well, I listened to what you have to say, but I can’t find that there is good cause to
discharge [defense counsel]. [¶] . . . [¶] And the concern that I have, part of that
equation, is we’re here, ready for trial, we’ve summoned jurors, and it will result in a
delay for you to obtain another attorney and for that attorney to be brought up to speed on
the case. [¶] . . . And the case is fairly old, and there’s been, apparently, some difficulty
in getting people to—here in court as witnesses. And I think any further delay would be
unreasonable at this point. [¶] So I’m denying the request to discharge [defense
counsel].”
8 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
14
2. General Legal Principles and Standard of Review
“ ‘The right to retained counsel of choice is—subject to certain limitations—
guaranteed under the Sixth Amendment to the federal Constitution. [Citations.] In
California, this right “reflects not only a defendant’s choice of a particular attorney, but
also his decision to discharge an attorney whom he hired but no longer wishes to retain.”
[Citations.]’ . . . [W]ith regard to discharging a retained attorney, a defendant need not
demonstrate either that counsel ‘is providing inadequate representation [citations], or that
he and the attorney are embroiled in irreconcilable conflict [citation].’ ” (People v.
O’Malley (2016) 62 Cal.4th 944, 1004.) “ ‘The right to discharge a retained attorney is,
however, not absolute. [Citation.] The trial court has discretion to “deny such a motion
if discharge will result in ‘significant prejudice’ to the defendant [citation], or if it is not
timely, i.e., if it will result in ‘disruption of the orderly processes of justice’
[citations].” ’ ” (Ibid.; see People v. Verdugo (2010) 50 Cal.4th 263, 311.)
“We review a trial court’s denial of a request to discharge retained counsel for an
abuse of discretion. [Citation.] A trial court ‘must exercise its discretion reasonably: “a
myopic insistence upon expeditiousness in the face of a justifiable request for delay can
render the right to defend with counsel an empty formality.” ’ ” (People v. Lopez (2018)
22 Cal.App.5th 40, 47.) “The erroneous denial of a defendant’s right to discharge
retained counsel is presumptively prejudicial and automatically requires reversal.” (Ibid.;
see People v. Dowdell (2014) 227 Cal.App.4th 1388, 1411 [erroneous denial constitutes
structural error requiring reversal without a showing of prejudice].)
15
3. Application
Here, defendant’s request to substitute retained counsel was made after the trial
court had already resolved extensive evidentiary and procedural issues in pretrial motions
and had already time-qualified jurors based upon the trial estimates provided by both
counsel, and after jury voir dire had already commenced.9 The trial court noted there was
a history of difficulty securing the appearance of witnesses, and at least one witness had
already appeared and had been ordered to return on a specific date based upon the
assumption that trial would proceed as scheduled. Additionally, defendant had not
identified or retained new counsel at the time of his request. Given this procedural
posture, the trial court could reasonably conclude that defendant’s request was not made
in a timely fashion and would result in significant disruption to the orderly processes of
justice.
Nor did defendant present any compelling interest weighing in favor of granting
his request. Upon defendant’s request, the trial court held a Marsden-type hearing in
order to provide defendant the opportunity to establish inadequate representation or an
irreconcilable conflict, but defendant was unable to do so. Further, defendant’s request
came only after seeking an indicated sentence from the trial court and only after the trial
court rebuffed defendant’s attempt to negotiate a lower indicated sentence, suggesting
defendant had a strong desire to delay trial. Accordingly, we cannot conclude, based on
9 Defendant’s claim that his request was made prior to voir dire is not supported
by the record. The reporter’s transcript of proceedings indicates that jury voir dire had
already begun, and defendant’s request was made during a recess in the voir dire
proceedings.
16
the record, that the trial court abused its discretion in denying defendant’s request to
discharge retained counsel.
Defendant argues the trial court improperly applied a Marsden standard in denying
his request. However, this contention is unsupported by the record. In stating that it did
not find good cause to grant defendant’s request, the trial court listed numerous reasons
why discharging counsel would result in unwarranted delay and disruption, which were
all appropriate reasons for denying a request to discharge retained counsel. These
reasons were not based upon the standards set forth in Marsden. They included the age
of the case, the lateness of the request, the difficulty in obtaining witnesses, the fact that
one witness had already been ordered back for a specific date, and the fact that the
request came only after defendant’s attempts to plea bargain with the court were rebuffed.
These facts suggest that defendant did not have any concerns with his counsel until his
attempts to get the sentence he sought was rejected, and they also suggest that the
defendant sought to delay the trial without any satisfactory reason.
17
Thus, the record does not suggest the trial court relied on improper legal criteria in
ruling on defendant’s request.10 Because the record does not show an abuse of discretion
in the trial court’s denial of defendant’s request to discharge counsel, we decline to
reverse on this ground.
B. Substantial Evidence Supports the Challenged Verdicts
On appeal, defendant also contends that his convictions for making criminal
threats in violation of section 422 (counts 2 & 9), as well as his conviction for assault
with a firearm (count 3), were not supported by substantial evidence. We disagree.
1. General Legal Principles and Standard of Review
“In reviewing a sufficiency of evidence claim, the reviewing court’s role is a
limited one. ‘The proper test for determining a claim of insufficiency of evidence in a
criminal case is whether, on the entire record, a rational trier of fact could find the
10 The fact that the trial court held a Marsden-type hearing in this case does not
suggest otherwise. As our Supreme Court has explained, “while ‘a defendant seeking to
discharge his retained attorney is not required to demonstrate inadequate representation
or an irreconcilable conflict, this does not mean that the trial court cannot properly
consider the absence of such circumstances in deciding whether discharging counsel
would result in disruption of the orderly processes of justice.’ ” (People v. O’Malley,
supra, 62 Cal.4th at p. 1004.) Thus, while a trial court cannot require a defendant to
demonstrate inadequate representation or an irreconcilable conflict as a prerequisite to
permitting the discharge of a retained attorney, where a defendant affirmatively claims
that such a reason exists, the trial court should permit a defendant the opportunity to
make such a showing. Obviously, to the extent a defendant shows inadequate
representation or an irreconcilable conflict, that would present a compelling interest
weighing in favor of granting an otherwise untimely or disruptive request to discharge
retained counsel. In this context, conducting a Marsden-type hearing constitutes nothing
more than giving defendant an opportunity to present valid reasons for granting his
request. It does not suggest the trial court applied an incorrect standard in ultimately
evaluating the merits of defendant’s request.
18
defendant guilty beyond a reasonable doubt.’ ” (People v. Smith (2005) 37 Cal.4th 733,
738-739; see People v. Cravens (2012) 53 Cal.4th 500, 507-508.) “ ‘The focus of the
substantial evidence test is on the whole record of evidence presented to the trier of fact,
rather than on 'isolated bits of evidence.’ ” (People v. Medina (2009) 46 Cal.4th 913,
919.)
“ ‘In applying this test, we review the evidence in the light most favorable to the
prosecution and presume in support of the judgment the existence of every fact the jury
could reasonably have deduced from the evidence. [Citation.] “Conflicts and even
testimony [that] is subject to justifiable suspicion do not justify the reversal of a
judgment, for it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon which a determination
depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we
look for substantial evidence. [Citation.]” [Citation.] A reversal for insufficient
evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support” the jury’s verdict.’ ” (People v. Manibusan
(2013) 58 Cal.4th 40, 87.)
19
2. Substantial Evidence Supports the Convictions for Making Criminal Threats
Generally, a violation of section 422 requires the prosecution to establish five
elements.11 However, on appeal, defendant challenges only the sufficiency of the
evidence to support one of these elements—that the defendant’s threat caused Jane Doe
to be in sustained fear for her safety. Thus, we review the record to determine if
substantial evidence supports the element of sustained fear with respect to count 2 and
count 9.
“ ‘Sustained fear’ refers to a state of mind . . .[;] ‘it means a period of time that
extends beyond what is momentary, fleeting or transitory.’ [Citation.] The word fear, of
course, describes the emotion the victim experiences.” (People v. Fierro (2010)
180 Cal.App.4th 1342, 1349.) Even a period of time as short as a minute can, depending
on the circumstances, be sufficient to establish the sustained fear necessary to support a
conviction. (Ibid.) “In addition, sustained fear must be objectively and subjectively
reasonable.” (People v. Roles (2020) 44 Cal.App.5th 935, 942.)
11 “Section 422 provides five elements: ‘(1) that the defendant “willfully
threaten[ed] to commit a crime which will result in death or great bodily injury to another
person,” (2) that the defendant made the threat “with the specific intent that the statement
. . . is to be taken as a threat, even if there is no intent of actually carrying it out,” (3) that
the threat—which may be “made verbally, in writing, or by means of an electronic
communication device”—was “on its face and under the circumstances in which it [was]
made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the
person threatened, a gravity of purpose and an immediate prospect of execution of the
threat,” (4) that the threat actually caused the person threatened “to be in sustained fear
for his or her own safety or for his or her immediate family’s safety,” and (5) that the
threatened person’s fear was “reasonabl[e]” under the circumstances.’ ” (People v. Roles
(2020) 44 Cal.App.5th 935, 941-942.)
20
Defendant’s conviction on count 2 was premised upon the incident in
December 2017. With respect to that incident, Jane Doe testified that during the course
of a heated argument, defendant retrieved a gun, pointed it at Jane Doe’s face, and
threatened to shoot her. Without question, such evidence would establish an objectively
reasonable basis for Jane Doe to experience sustained fear for her safety. Additionally,
Jane Doe directly testified she was afraid during the incident and later called law
enforcement for help. Thus, there was direct and circumstantial evidence upon which the
jury could rely to conclude Jane Doe subjectively felt sustained fear. (See People v.
Melhado (1998) 60 Cal.App.4th 1529, 1538 [victim’s act of calling the police is evidence
upon which a jury may infer the victim genuinely feared for her safety].)12
The fact that Jane Doe equivocated when asked whether she experienced fear by
stating, “Yes, a little,” or that Jane Doe admitted she told defendant to shoot her in
response to the threat does not compel a different conclusion. The testimony of a single
witness constitutes substantial evidence in support of a verdict even if it is inconsistent or
false as to some portions. (People v. Leigh (1985) 168 Cal.App.3d 217, 221; People v.
12 The fact that Jane Doe did not call the police until the following day does not
preclude reliance on this evidence to infer sustained fear. The element of sustained fear
may be satisfied even where the victim does not immediately experience fear upon
hearing the threat but reaches that emotional state at a later time. (People v. Mendoza
(1997) 59 Cal.App.4th 1333, 1342 [jury entitled to find defendant’s threat placed victim
in a state of “sustained fear,” even where victim admitted she was not initially frightened
for her life upon hearing defendant’s words but reached that state 30 minutes later].)
Additionally, because Jane Doe testified defendant immediately ran to his car and drove
away when their argument was interrupted, the jury could reasonably conclude Jane
Doe’s act of calling the police the following day resulted from sustained fear, since
defendant continued to possess his gun and could still carry out his threat.
21
Wetle (2019) 43 Cal.App.5th 375, 388.) Indeed, a jury may reasonably infer a victim
subjectively experienced sustained fear even when the victim’s inconsistent testimony
includes an express denial of experiencing any fear. (See People v. Mendoza (1997)
59 Cal.App.4th 1333, 1338 and 1340 [concluding sufficient evidence supported victim’s
sustained fear where victim claimed to be fearful in preliminary hearing testimony but
expressly denied experiencing fear when testifying at trial].) Thus, we conclude
substantial evidence in the record supports the jury’s verdict on count 2.
Defendant’s conviction on count 9 was premised upon the June 10, 2018 incident.
With respect to this incident, Jane Doe testified defendant surprised her in the bathroom
of her home, strangled her with his hands, and verbally threatened to kill her. Again,
such evidence would establish an objectively reasonable basis for Jane Doe to experience
sustained fear for her safety.
Substantial evidence also supports a reasonable conclusion Jane Doe experienced
subjective fear for her safety. While at one point in her testimony, Jane Doe admitted she
did not initially believe defendant when he stated, “ ‘I’m going to kill you,’ ” Jane Doe
equally testified she was afraid, feared for her life, and was worried she was going to die.
Further, the prosecution presented a 911 call in which a neighbor reported hearing Jane
Doe scream that defendant was going to shoot her. Thus, at best, there was conflicting
evidence from which competing inferences could be drawn on this issue. However, for
purposes of a substantial evidence review, this court does not reweigh conflicting
evidence or reevaluate the credibility of witnesses. (People v. Skiff (2021)
59 Cal.App.5th 571, 579.) So long as there is credible evidence in the record from which
22
the jury could have concluded Jane Doe subjectively experienced sustained fear, reversal
is not warranted on appeal.
Substantial evidence in the record supports a reasonable conclusion that Jane
Doe’s sustained fear was both objectively and subjectively reasonable under the
circumstances. As such, reversal of defendant’s conviction for making a criminal threat
in count 2 and count 9 is not warranted.
3. Substantial Evidence Supports the Conviction for Assault with a Firearm
Generally, a violation of section 245, subdivision (a)(2), requires the prosecution
to prove five elements.13 However, on appeal, defendant challenges only the sufficiency
of the evidence to support one of these elements—that he had a present ability to apply
force with his firearm. Specifically, defendant contends there was no evidence to show
the firearm he used to threaten Jane Doe was loaded at the time of the assault. Thus, we
review the record to determine if substantial evidence supports a reasonable conclusion
that defendant’s firearm was loaded with respect to count 3.
Defendant’s conviction on count 3 was premised upon the December 2017
incident involving a gun. As we have already detailed, Jane Doe testified that, during the
course of a heated argument, defendant retrieved a gun, pointed it at Jane Doe’s face, and
13 The elements are: (1) defendant did an act with a firearm that by its nature
would directly and probably result in the application of force to a person; (2) the
defendant did that act willfully; (3) when the defendant acted, he/she was aware of facts
that would lead a reasonable person to realize that his/her act by its nature would directly
and probably result in the application of force to someone; (4) when the defendant acted,
he/she had the present ability to apply force with a firearm; and (5) the defendant did not
act in self defense. (See Pen. Code, §§ 240, 245, subd. (a)(2); CALCRIM No. 875.)
23
threatened to shoot her. As defendant correctly points out, there is no direct testimony
that the gun he was holding at the time was loaded with ammunition during this incident.
However, “California courts have often held a defendant’s statements and
behavior while making an armed threat against a victim may warrant a jury’s finding the
weapon was loaded.” (People v. Rodriguez (1999) 20 Cal.4th 1, 12; see People v.
Lochtefeld (2000) 77 Cal.App.4th 533, 541 [Defendant’s act of verbally threatening,
displaying, and aiming a gun at others “fully supported the jury’s determination the gun
was sufficiently operable.”].) In fact, in People v. Rodriguez, our Supreme Court
endorsed the view that, where a defendant leaves a fight while enraged, returns with a
gun, levels the gun at the victim’s head, and makes statements indicating an intent to use
the gun, such conduct “may support a rational fact finder’s determination that [the
defendant] used a loaded weapon,” and “[w]e cannot say the jury could not reasonably
make such a determination.” (Id. at p. 13.) Jane Doe’s testimony in this case mirrors the
exact factual scenario endorsed by our Supreme Court. Accordingly, we find no merit in
defendant’s argument that there was insufficient evidence to support his conviction on
count 3.
C. Substantial Evidence Supports the Trial Court’s Decision to Impose Separate
Punishment on Counts 6, 7, and 9
Defendant also contends the trial court erred when it imposed separate punishment
on his conviction for stalking (count 6), spousal battery (count 7), and making a criminal
threat (count 9). Specifically, defendant argues that he should not be subject to separate
punishment because all three offenses were accomplished for the same general objective.
24
Alternatively, defendant argues for the first time in his reply brief that convictions were
premised upon the same physical act. We conclude substantial evidence supports an
implied finding that separate physical acts form the basis of all three convictions and
further conclude substantial evidence supports an implied finding defendant harbored
separate intents in the commission of each offense.
1. General Legal Principles and Standard of Review
Generally, section 654 prohibits multiple punishments for a single act or an
indivisible course of conduct. (People v. Leonard (2014) 228 Cal.App.4th 465, 498-499.)
“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 the 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.”
(People v. Corpening (2016) 2 Cal.5th 307, 311.)
“ ‘The question of whether section 654 is factually applicable to a given series of
offenses is for the trial court, and the law gives the trial court broad latitude in making
this determination.’ [Citation.] A court’s expressed or implied findings on this point
must be upheld if supported by substantial evidence.” (People v. Kopp (2019)
38 Cal.App.5th 47, 91; see People v. Leonard, supra, 228 Cal.App.4th at p. 499.)
25
2. Substantial Evidence Supports the Implied Finding Separate Physical Acts
Gave Rise to Each Offense
Here, defendant’s conviction on counts 6, 7, and 9 all arose from the
June 10, 2018 incident in which he strangled Jane Doe. However, defendant’s
characterization that all three convictions were based upon the same physical act of
strangling Jane Doe is unsupported by the record.
We agree that defendant’s conviction in count 7 for inflicting corporal injury on a
spouse resulting in a traumatic condition must have been premised upon his physical act
of violence in strangling Jane Doe, since a violation of the statute requires the infliction
of physical injury. (§ 273.5, subds. (a), (f)(2).) However, defendant’s conviction in
count 9 for making a criminal threat could not have been based upon the same physical
act because a violation of section 422 cannot be based upon a threat implied by conduct.
(People v. Gonzalez (2017) 2 Cal.5th 1138, 1147 [“[A] threat made through nonverbal
conduct falls outside the scope of section 422.”].) Thus, these two offenses could not
have been premised upon the same physical act.
Defendant’s conviction for stalking presents a closer question. While the offense
requires that the defendant make a “credible threat” as an essential element, the “credible
threat” in support of a stalking conviction may be verbal, written, or implied through a
course of conduct. (§ 646.9, subds. (a), (g); see People v. Lopez (2015) 240 Cal.App.4th
436, 449 [The threat underlying a stalking conviction may be implied from a course of
conduct.].) Additionally, the type of communication sufficient to constitute a threat for
purposes of section 646.9 differs in nature from the type necessary to constitute a threat
26
for purposes of section 422. (See People v. Cruz (2020) 46 Cal.App.5th 715, 732 [“[T]he
‘credible threat’ element of stalking differs from the threat element of making a criminal
threat.”].) Thus, it is plausible that defendant’s conviction for stalking is premised upon
the same physical act of strangulation forming the basis for his conviction in count 7 or
the same verbal threat forming the basis of his conviction in count 9. Nevertheless, while
this is one conclusion that could be drawn, the evidence in this case did not compel such
a conclusion.
Defendant’s initial act of making an uninvited appearance at Jane Doe’s home
could, in itself, constitute the credible threat in support of a stalking conviction. (See
Lopez, supra, 240 Cal.App.4th at p. 450 [A defendant’s persistent contact with the
victim, despite being told to stop, can be reasonably interpreted as a credible threat.]; see
also People v. Uecker (2009) 172 Cal.App.4th 583, 594-595 [A defendant’s repeated
contact with the victim, despite the victim’s firm representation she did not want contact,
could constitute an implied credible threat.]; see also People v. Itehua (2014)
227 Cal.App.4th 356, 360-361 [A defendant’s actions such as repeated contact and
appearances at the victim’s home, despite the victim’s desire not to have contact and a
restraining order, could be the basis for an implied credible threat.].) Thus, the record
contains evidence from which the trial court could reasonably conclude that the physical
act underlying the “credible threat” element of defendant’s stalking conviction was
separate from the physical act of strangling Jane Doe and separate from his verbal threat
to kill Jane Doe.
27
Further, the jury made no specific factual finding regarding the credible threat
element of defendant’s stalking conviction.14 Accordingly, the trial court was entitled to
make its own factual finding for purposes of determining whether section 654 applied.
(People v. Deegan (2016) 247 Cal.App.4th 532, 545 [“ ‘Ordinarily, in determining
whether [section 654] applies, the trial court is entitled to make any necessary factual
findings not already made by the jury.’ ”].) In doing so, it “ ‘may base its decision . . . on
any of the facts that are in evidence at trial, without regard to the verdicts’ ” and “ ‘may
even rely on facts underlying verdicts of acquittal in making sentencing choices.’ ”
(People v. Carter (2019) 34 Cal.App.5th 831, 842.) Further, the trial court was not
limited by the representations of the prosecutor in argument. (People v. Green (1988)
200 Cal.App.3d 538, 545 fn. 5 [trial court not required to accept prosecutor’s concession
regarding application of § 654].) Thus, because the record contains evidence that a
separate physical act could have formed the basis of the “credible threat” element
underlying defendant’s conviction for stalking and because the trial court was not limited
by any findings by the jury, the trial court did not err to the extent it made an implied
finding that all three convictions were based upon separate physical acts.
14 Nor does anything in the record suggest that the jury was limited to
consideration of defendant’s oral threat or the act of strangulation as the basis for finding
defendant made a credible threat in support of his stalking conviction. The charging
document does not limit the stalking allegations to a verbal threat; the jury was generally
instructed it could find a credible threat in support of stalking based upon implied
conduct; and the verdict form does not suggest the specific basis for the jury’s verdict.
While the prosecutor referenced defendant’s verbal statement in closing argument on this
issue, the prosecutor equally asked the jury to consider the totality of the circumstances
presented by the evidence.
28
3. Substantial Evidence Supports the Implied Finding Defendant Harbored
Separate Intents
Having concluded that substantial evidence supports an implied finding that
defendant’s convictions for counts 6, 7, and 9 arise from separate physical acts, we must
still determine whether substantial evidence supports an implied finding that defendant
committed each offense with a separate intent or objective.
While it is undisputed that the acts forming the basis for each of these convictions
arise out of the same incident, this fact is not conclusive. “The temporal proximity of two
offenses is insufficient by itself to establish that they were incidental to a single objective.
[Citations.] Objectives may be separate when ‘the objectives were either (1) consecutive
even if similar or (2) different even if simultaneous.’ [Citations] Section 654 ‘cannot,
and should not, be stretched to cover gratuitous violence or other criminal acts far beyond
those reasonably necessary to accomplish the original offense.’ ” (People v. Vazquez
(2020) 44 Cal.app.5th 732, 737.) Upon review of the record in this case, we conclude
that the trial court could reasonably infer separate intents for each offense.
First, the trial court could reasonably conclude that defendant harbored similar, but
consecutive, intents when stalking and subsequently inflicting corporal injury on Jane
Doe. California courts have repeatedly found that where, in the commission of one
offense, a defendant engages in a violent escalation constituting a separate offense, a
separate intent may be inferred. (In re Jesse F. (1982) 137 Cal.App.3d 164, 171 [separate
intent where defendant attempts to murder robbery victim in response to victim’s attempt
to flee]; People v. Coleman (1989) 48 Cal.3d 112, 162-163 [separate intent may be found
29
where defendant stabs victim during course of robbery]; People v. Cleveland (2001)
87 Cal.App.4th 263, 271-272 [separate intent where defendant violently beats victim
unconscious during robbery]; People v. Vasquez, supra, 44 Cal.App.5th at p. 739
[separate intent where defendant stabbed victim and then subsequently bit victim’s
fingers when she fought back].)
Here, Jane Doe’s testimony suggested defendant’s actions on June 10, 2018,
occurred as a series of escalating events. Defendant entered Jane Doe’s home, despite
being explicitly told that he was not welcome. While there, he argued with Jane Doe and
verbally harassed her with disparaging comments in violation of a no-negative-contact
restraining order. At some point, the argument escalated, and defendant began to
physically strangle Jane Doe when she tried to scream. Finally, while in the process of
strangling Jane Doe, defendant verbally threatened to kill her.
Clearly, the act of strangling Jane Doe represented a violent escalation from
defendant’s initial act of showing up uninvited at Jane Doe’s home or engaging in
negative contact with Jane Doe in violation of a restraining order. Based upon this
evidence, the trial court could reasonably conclude that defendant came to Jane Doe’s
home with the objective of stalking her and formed a separate intent to strangle her after
being angered during the course of their ensuing argument.
Second, the trial court could reasonably infer that defendant harbored a
simultaneous, but separate, intent when making a criminal threat. It is undisputed that
defendant made his verbal threat to kill Jane Doe at the same time he was physically
strangling her. However, a defendant may be found to have different objectives even if
30
two offenses are committed simultaneously, and a defendant may harbor different
objectives when making a criminal threat and seeking to carry out that threat. (See
People v. Mejia (2017) 9 Cal.App.5th 1036, 1047 [criminal threat may be separately
punished from torture of same victim]; People v. Solis (2001) 90 Cal.App.4th 1002, 1022
[defendant’s criminal threat to burn down victim’s house may be separately punished
from act of arson an hour later].)
On this point, In re Raymundo M. (2020) 52 Cal.App.5th 78, is instructive. In that
case, a minor was convicted of assault and making a criminal threat “[a]fter he raised a
switchblade-like knife head-high and chased another minor while orally threatening
him.” (Id. at p. 82.) In upholding the imposition of separate punishment for each
offense, the Court of Appeal explained: “[T]he [trial] court could reasonably have found
that [defendant] committed the assault with the objective of inflicting physical harm on
[the victim], whereas [defendant] criminally threatened [the victim] with the separate
objective of inflicting mental or emotional harm.” (Id. at p. 95.) The facts of this case
are no different. Indeed, to the extent the evidence suggests defendant was already in the
process of inflicting physical harm on Jane Doe at the time he verbally stated his threat to
kill her, it was more than reasonable for the trial court to conclude he harbored a separate
objective in doing so. If defendant was already in the process of strangling Jane Doe, his
words served no purpose other than to inflict additional emotional harm.
Substantial evidence in the record supports the trial court’s implied finding that
defendant harbored separate intents with respect to his convictions for stalking,
committing corporal injury on a spouse, and making a criminal threat. Thus, we find no
31
error in the trial court’s decision to impose separate punishment for each of these
offenses.
D. Sentencing Issues
1. The Trial Court Did Not Err in Applying Section 1170.15
Defendant was convicted of dissuading a witness by use of force (§ 136.1,
subd. (c)(1), count 13) arising out of the June 18, 2018 incident in which he took Jane
Doe’s phone to prevent her from calling the police; and dissuading a witness (§ 136.1,
subd. (a)(2), count 22), arising out of his jail calls in December 2018. The trial court
sentenced defendant to a full middle term on each of these counts pursuant to section
1170.15. Defendant argues the trial court erred because section 1170.15 does not apply.
We disagree.15
a. General Legal Principles and Standard of Review
Normally, where a defendant is convicted of two or more felonies and the trial
court sentences the defendant to consecutive terms of imprisonment, each consecutive
term consists of one-third the middle term of imprisonment prescribed for the subordinate
felony conviction. (§ 1170.1, subd. (a).) “Section 1170.15 is an exception to the rule set
forth in section 1170.1, subdivision (a)” and “provides that when a defendant is convicted
of a felony, and also convicted of a second felony for a violation of section 136.1
15 We also disagree with the People’s argument that the issue has been forfeited
on appeal. An error that involves “an unauthorized sentence is not subject to forfeiture,
can never be harmless,” and “may be corrected at any time by a court with jurisdiction.”
(People v. Cabrera (2018) 21 Cal.App.5th 470, 477.) Thus, while we conclude
defendant’s claim has no merit, the claim that defendant was subjected to an unauthorized
sentence could not have been forfeited.
32
(dissuading a witness) involving a witness to the first felony, ‘the subordinate term for
each consecutive offense’ of dissuading a witness must be the full middle term . . . .”
(People v. Woodworth (2016) 245 Cal.App.4th 1473, 1478-1479; see § 1170.15.) As the
words of the statute make clear, “for section 1170.15 to apply, the dissuasion for which
the defendant was convicted must relate to another felony, of which the defendant was
also convicted.” (People v. Evans (2001) 92 Cal.App.4th 664, 670.) “Section 1170.15
does not create an enhancement, but an alternative sentencing scheme.” (People v.
Hennessey (1995) 37 Cal.App.4th 1830, 1835.) The specific factual basis for imposition
of section 1170.15 “need not be specifically pleaded and proven” and, instead, the
sentencing judge is tasked with making the determination whether the dissuasion for
which the defendant was convicted relates to another felony. (Hennessey, at p. 1835.)
“A trial court’s sentencing decision is subject to review for abuse of discretion.
[Citation.] ‘[A] trial court will abuse its discretion . . . if it relies upon circumstances that
are not relevant to the decision or that otherwise constitute an improper basis for
decision. [Citations.]’ ‘ “The circumstances utilized by the trial court to support its
sentencing choice need only be established by a preponderance of the evidence.
[Citations.]” [Citation.] Accordingly, in determining whether a trial court abused its
discretion . . . we consider, in part, whether there is sufficient, or substantial, evidence to
support the court’s finding that a particular factor was applicable.’ ” (People v. Hicks
(2017) 17 Cal.App.5th 496, 512.) In doing so, we are mindful of the fact that “California
law affords the trial court broad discretion to consider relevant evidence at sentencing...
The court specifically is authorized to consider ‘the record in the case’ ” (People v.
33
Towne (2008) 44 Cal.4th 63, 85) and may even consider evidence and facts principally
directed toward other charges of which the defendant was acquitted (id. at p. 86; see
People v. Carter, supra, 34 Cal.App.5th at pp. 844-845).
b. Application
Here, defendant’s only argument on appeal is that section 1170.15 cannot apply
because the only other crimes committed on the specific dates he engaged in
dissuasion—June 18, 2018 and December 2018—were misdemeanors. However,
section 1170.15 contains no language suggesting that its application is limited to
situations in which the act of dissuasion and the underlying felony occurred on the same
date. Nor does defendant cite any authority for this proposition.
Instead, California authorities recognize that “time is not a material ingredient of
the offense” of dissuasion. (People v. Torres (2019) 39 Cal.App.5th 849, 858.)
Dissuasion may occur “over a period of time as well as instantaneously” (People v.
Salvato (1991) 234 Cal.App.3d 872, 883) and may occur after a defendant has been
arrested for the underlying crime (People v. Velasquez (2011) 201 Cal.App.4th 219, 232-
233). Thus, the fact that the only other crimes for which defendant was convicted on
June 18, 2018 and in December 2018 happened to be misdemeanors is entirely irrelevant.
Defendant could have validly been convicted of dissuasion pertaining to crimes
committed on a date other than the date in which he engaged in the act of dissuasion and,
to the extent such underlying crimes were felonies, section 1170.15 can be validly
applied at the time of sentencing.
34
Here, count 13 alleged defendant dissuaded a witness on June 18, 2018, and that
the charge was “connected in its commission with the charge set forth in counts 1
through 12.” Thus, in determining whether the dissuasion for which defendant was
convicted relates to another felony, the trial court was permitted to consider any of the
offenses charged in counts 1 through 12. As relevant here, defendant was convicted of
counts 7 through 10, which were all felonies alleged to have occurred the week prior to
June 18.
According to Jane Doe, defendant appeared at her home on June 18, 2018,
uninvited; the two argued over the fact that defendant was not supposed to be there and
needed to leave, and defendant grabbed her telephone to prevent her from calling the
police. While one natural inference is that defendant grabbed Jane Doe’s telephone to
prevent her from reporting the specific crimes he was engaged in at the time, this is not
the only reasonable inference that can be drawn from the evidence. Jane Doe testified
that in the week leading up to this incident, defendant “kept coming back and I kept
reporting him to the police.” Further, when Jane Doe finally managed to call 911 on June
18, she attempted to provide information she claimed to have had recently discovered
related to prior alleged crimes. Thus, the trial court could reasonably infer that at least
part of Jane Doe’s argument with defendant on June 18 involved his prior crimes as the
reason he was not welcome in her home. In this context, it was not unreasonable for the
trial court to conclude that defendant’s act of taking Jane Doe’s telephone was, in part,
35
intended to prevent her from reporting additional information regarding the underlying
felonies that allegedly occurred the week prior and for which defendant was convicted.16
With respect to count 22, the information alleged defendant dissuaded a witness in
December 2018, and the charge was “connected in its commission with the charge[s] set
forth in counts 1 through 21 . . . .” In his calls to Jane Doe in December 2018, defendant
explicitly encouraged her to either refuse to appear or to lie in her anticipated testimony
to the court. It is undisputed these calls were made shortly before Jane Doe’s anticipated
preliminary hearing testimony on December 27, 2018, and that this testimony covered
multiple incidents that gave rise to felonies for which defendant was ultimately
convicted, including the events of June 10, June 18, July 2, and July 13, 2018.
Accordingly, substantial evidence in the record supports the trial court’s conclusion that
the dissuasion for which defendant was convicted of in count 22 related to other felonies
of which defendant was also convicted.
Because substantial evidence supports the trial court’s decision, we find no error
in the trial court’s application of section 1170.15 to impose a full midterm sentence on
defendant’s convictions for dissuasion in violation of section 136.1.
16 Defendant’s focus on the prosecutor’s closing arguments to the jury is
misplaced. “Ordinarily, for purposes of substantial evidence review, ‘the prosecutor’s
argument is not evidence and the theories suggested are not the exclusive theories that
may be considered by the jury.’ ” (People v. Brown (2017) 11 Cal.App.5th 332, 341; see
People v. Perez (1992) 2 Cal.4th 1117, 1126.) More importantly, as we have already
noted, for the purpose of sentencing decisions, the trial court is not limited to
consideration of the evidence in support of the jury’s verdict. (People v. Towne, supra,
44 Cal.4th at pp.85-86.) Nor is the trial court limited by the representations of the
prosecutor in argument. (People v. Green, supra, 200 Cal.App.3d at p. 545, fn. 5 [trial
court not required to accept prosecutor’s concession regarding application of § 654].)
36
2. Defendant’s Prison Prior Enhancement Should Be Stricken
Defendant argues that his one-year sentence enhancement, imposed as the result of
a prior felony conviction involving a term in state prison, must be stricken in light of
recent amendments to section 667.5, subdivision (b), embodied in Senate Bill No. 136.
(Stats. 2019, ch. 590, §1.) The amendment became effective January 1, 2020, and
precludes the imposition of one-year sentence enhancements for prior prison terms unless
the prior offense was sexually violent in nature. (§ 667.5, subd. (b).) The People
concede that the prior convictions underlying defendant’s sentence enhancements here
would not qualify under the amended statute. Because the amendment is ameliorative in
nature and defendant’s conviction was not yet final at the time the amendment took
effect, we agree that defendant’s one-year sentence enhancements pursuant to section
667.5, subdivision (b), should be stricken. However, because the abstract of judgment
indicates this enhancement was stayed, remand for resentencing is unnecessary, and the
error can be corrected by ordering that the judgment be modified to indicate the
enhancement has been stricken instead of stayed.
3. The Order To Pay Incarceration Costs Pursuant to Section 1203.1c Should Be
Stricken
Defendant also contends, the People concur, and we agree that the trial court’s
imposition of a $1,500 assessment against defendant pursuant to section 1203.1c was
unauthorized. Under section 1203.1c, a trial court is only authorized to order the
defendant to pay reasonable costs of incarceration when ordered to a period of
confinement in county jail, city jail, or another local detention facility. Since defendant
37
here was ordered to serve his term of confinement in state prison, the trial court was not
authorized to impose costs of incarceration pursuant to that statute, and that portion of
defendant’s sentence should be stricken as unauthorized. (People v. Smith (2001)
24 Cal.4th 849, 854.)
IV. DISPOSITION
The judgment is modified to indicate defendant’s prison prior enhancement
imposed pursuant to section 667.5, subdivision (b), has been stricken instead of stayed,
and further modified to strike the imposition of a $1,500 assessment pursuant to
section 1203.1c. The trial court is directed to prepare an amended abstract of judgment to
reflect these modifications and to send a certified copy of the amended abstract of
judgment to the Department of Corrections and Rehabilitation. As modified, the
judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
38
People v. Lankford CA4/2
Combined Opinion