People v. Nash CA4/2

Filed 6/9/22 P. v. Nash 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E076768

v. (Super.Ct.No. RIF2002177)

LAWRENCE ANTHONY NASH, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge.

Affirmed in part; reversed in part and remanded for resentencing.

Michael Allen, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, A. Natasha Cortina, Acting Assistant Attorney General, Steve Oetting and

Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.

1
 Defendant and appellant Lawrence Anthony Nash was with a group of friends

when they confronted the victim, who was visiting his uncle’s house next door. One of

defendant’s cohorts, Anthony Barrow, sucker punched the victim in the face. Barrow

pushed the victim into a nearby SUV, shattering the window. Defendant jumped over the

fence between the two properties and rushed at the victim with a sharp object that the

victim and his mother identified as a knife. Defendant told the victim that he was going

to kill him, and then stabbed the victim in the head causing a puncture wound.

Defendant claims in his opening brief on appeal that (1) insufficient evidence was

presented to support his conviction of assault with a deadly weapon other than a firearm

as there was no substantial evidence that he had a knife; (2) his criminal threat conviction

must be reversed because there was no substantial evidence the alleged threat caused the

victim to fear for his safety; (3) counsel was ineffective for failing to introduce the

victim’s testimony from the preliminary hearing to impeach the victim’s trial testimony;

and (4) the trial court erred by imposing consecutive sentences for both his assault and

criminal threat convictions as they must be stayed pursuant to section 654. In a

supplemental brief, defendant contends that Senate Bill No. 567 (Stats. 2021, ch. 731, §

1.3 [SB 567], eff. Jan. 1, 2022) restricts the trial court’s discretion to impose an upper

term sentence, requiring the matter be remanded for resentencing. We agree that remand

is necessary for resentencing but otherwise affirm.

2
 FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

Defendant was convicted at a court trial1 of one count of assault with a deadly

weapon other than a firearm, a knife (Pen. Code, § 245, (a)(1); count 1)2; and one count

of making criminal threats (§ 422; count 2). Defendant admitted he had suffered one

prior serious and violent felony prior conviction within the meaning of sections 667,

subdivisions (a)(1), (c) through (e)(1), and 1170.12, subdivision (c)(1). Defendant was

sentenced to a state prison term of nine years four months, which consisted of the upper

term of four years, doubled for the strike, for a total term of eight years on count 1, and a

consecutive sentence of one year four months on count 2.

B. FACTUAL HISTORY

1. PEOPLE’S CASE-IN-CHIEF

On December 29, 2019, at around 4:00 or 5:00 p.m., the victim’s mother was at

her brother’s house located on 29th Street in Jurupa Valley. Also home were her

husband, her brother, her sister-in-law (hereafter, aunt), and some children. The victim

was her son and he had just arrived at the house with his girlfriend to visit.

The victim’s mother heard something outside. She went outside and saw that the

victim was surrounded by four or five Black men. They were loudly cussing at him and

appeared to want to fight him. The victim’s mother saw a heavyset man, identified as

1 Defendant waived his right to a jury trial.

2 All further statutory references are to the Penal Code unless otherwise indicated.

3
Anthony Barrow, push the victim into a nearby SUV. Barrow pushed the victim’s head

into the windshield of the SUV. The victim’s head went backward and shattered the

glass. Aunt was able to separate the victim and Barrow.

The victim’s mother observed a skinny man wearing a brown hoodie, who she

identified in court as defendant, jump over the fence from the house next door and

approach the victim. She saw defendant pull something out of his waistband, which she

thought was a knife. She said the knife was at least eight inches long. Defendant went

toward the victim’s head stabbing him with the knife. The victim had a gash on his head

as a result and was bleeding. Defendant only stabbed the victim one time. The victim

was able to push defendant out the gate of the property.

The victim and his mother headed back to the house. Barrow threw a brick at her.

The victim was able to deflect it so it did not hit her in the head. Barrow said that he did

not give a “fuck” that she was female. Later in her testimony, the victim’s mother stated

that defendant had thrown the brick and Barrow had thrown a helmet.

The victim testified he went to his aunt’s and uncle’s house in Jurupa Valley that

day. He and his girlfriend pulled up to the house. He saw a group of Black men outside

the house next door. One of the men was Barrow, who the victim described as being six

feet, two inches tall, and weighing 400 pounds. Barrow asked to speak with the victim.

As the victim approached Barrow, Barrow punched him in the face. Barrow mentioned

that the victim “had to pay [his] respects” but never explained what that meant.

The victim told his girlfriend to go inside. The victim briefly went inside and then

went back outside to the car to get items out of the car he was concerned they would take.

4
Barrow approached him by the SUV. The victim noticed that a window had been broken

on his girlfriend’s car.

The victim saw defendant jump over the fence from next door and he had

something shiny in his pants. Barrow pushed the victim into the SUV. He pushed with

enough force to break the window. At that point, defendant pulled out his knife—which

the victim described as having a fixed blade and was eight inches—and stabbed the

victim in the head. The victim was certain defendant was holding the knife. Defendant

swung with a lot of force. The victim felt the pain of the knife going into his head.

Defendant swung the knife at him several more times but the victim was able to move out

of the way. Defendant told the victim, while holding the knife, just prior to stabbing him,

that he was going to kill him.

Aunt and the victim were able to get Barrow off the victim and the victim was able

to push defendant out of the gate. Defendant grabbed a brick. He and the others threw

bricks at the victim and his family.

The victim explained he and Barrow had previously been involved in an incident

during which Barrow took what he thought were drugs from the victim but they turned

out not to be drugs. The victim denied he sold drugs to Barrow.

The victim did not want medical attention after the incident. He never saw the

knife after the incident. He did not require stitches. He went to the doctor the next night

and was told he had a minor concussion.

Aunt called the police. The victim was near aunt when she made the call. Aunt

told the dispatcher that the people next door broke the window to her car and “stabbed

5
my nephew.” She was asked who stabbed her nephew. It was clear she was speaking to

someone else and then said, “Uhh, a, a big, which one stabbed [the victim]? Which one?

A little one. The one that jumped the fence?” A male was heard speaking in the

background, and then she reported, “Yes, so he jumped our fence. He’s, he’s wearing all

gray with black pants.” The man who stabbed the victim was short and very skinny and

they only knew him as “Ant.” Aunt reported that the victim was bleeding. Aunt stated

that they did not know the size of the knife; they only saw “something shiny.”

Riverside County Sheriff’s Deputy Cosper was on duty on December 29, 2019, at

approximately 5:18 p.m. When he arrived at the scene, he found several adult females

who were “chaotic” and the victim was bleeding. He took pictures of the victim’s

wounds. The victim also had injuries to his arm and abdomen. Cosper found bricks and

a helmet on the ground. He was told that the bricks had been thrown at the victim.

The victim was able to identify Barrow as the person who pushed him into the

SUV. The victim gave a description of defendant and said he was named Ant or

Anthony. The victim did not know his last name. Deputy Cosper observed the broken

windshield on the SUV.

Deputy Cosper spoke with the victim’s mother. She told him that she was unsure

how the victim was injured. Cosper did not recall her mentioning a knife. The victim

told him that he saw a knife. He described it as being steel. The knife was not found. He

described the victim’s wound as being a puncture wound. The victim told him that he

had been stabbed two times but Cosper only observed one puncture wound. The victim

also told Cosper that defendant threatened him that he was going to die. Barrow threw a

6
brick at him; the victim did not state that defendant threw a brick at him. Cosper never

asked the victim’s mother if she had seen a knife.

The victim’s mother explained that she was scared when she spoke with Deputy

Cosper. She did not recall what she told him. She denied that the victim ever swung at

Barrow. The victim’s mother admitted that she never told Cosper that night that she saw

a knife. She did not recall telling him that Barrow had thrown the brick.

The victim acknowledged that he did not want to testify. He was in custody when

he was brought to court for the preliminary hearing. He was scared during the

preliminary hearing because he had received threats that some people were going to try to

beat him up in custody if he testified against defendant. He identified defendant at the

hearing. He was scared at trial to testify because of his own pending case for which he

might go back into custody. He had one interaction with defendant after the incident and

it had been peaceful.

The victim did not recall telling Deputy Cosper he had been stabbed more than

once. He denied ever taking a swing at Barrow or defendant. He had told Cosper that he

saw defendant with a shiny object but was sure at trial that it was a knife. It looked like a

fixed-blade kitchen knife. Defendant had the knife tucked in his waistband when he

jumped the fence. The victim insisted he told Cosper that both Barrow and defendant

were throwing bricks at them. Defendant ran up the street before Cosper arrived.

Riverside County Sheriff’s Deputy Valenciano was assigned to the gang task force

at the sheriff’s department. She followed up on the incident because the Westside PJ

gang had been mentioned during the investigation. Deputy Valenciano discovered that

7
defendant might look like the person who the victim described as stabbing him. The

victim identified defendant on June 23, 2020.3

Deputy Valenciano then spoke with defendant on that day or the next day.

Defendant admitted to her that he was a member of Westside PJ and that they called him

Ant or Pharaoh. Defendant initially told her that on the day of the incident he believed he

was in Palm Springs. Defendant had been arrested on June 24, 2020, for being under the

influence. Valenciano admitted he may have been still intoxicated when she spoke with

him the first time.

On June 30, 2020, Deputy Valenciano interviewed defendant a second time. He

told her he was mistaken about being in Palm Springs and that he was present during the

altercation with the victim. Defendant told her that Barrow punched the victim in the

face and pushed him into the SUV. He denied that he was involved in the altercation.

Defendant insisted that the victim was cut when the window broke not because he

stabbed him.

2. DEFENSE

Hudson Bales was a private investigator and testified as an expert. Bales had been

a deputy sheriff at the Riverside County Sheriff’s Department for 17 years. He also had

served in the Marine Corps. He was a close combat instructor for the Marine Corps and a

use of force expert for the Riverside County Sheriff’s Department. He had been trained

3 The victim testified he was afraid to be seen talking with Deputy Valenciano
because “snitches get stitches.” He denied he ever told Valenciano that he had been
stabbed in the head twice.

8
in the use of knives. He had seen persons injured by a bladed instrument on five prior

occasions.

Bales suspected that if a person was stabbed in the head, there would be a graphic

puncture wound. He also would expect it to be a lethal blow. It was possible to puncture

the skull and cause fractures. He looked at photographs taken of the victim’s injuries.

His injuries were not consistent with being twice stabbed in the head. There were

abrasions; not stab wounds. He would expect to see blood splatter on the SUV.

Bales concluded that the victim’s injuries were not consistent with being stabbed

in the head with a fixed blade. His injuries were consistent with being slammed against a

car window that shattered. He admitted no glass had to be removed from the victim’s

head. Bales had not been involved in a prior case involving a single puncture wound

from glass. He denied that even if the victim was moving, that such an injury came from

a knife blade.

Defendant testified on his own behalf. He had a previous conviction for domestic

violence. On December 29, 2019, defendant was at Barrow’s house. He saw the victim

next door and Barrow said he needed to talk to him. Barrow went next door to talk to the

victim. Defendant jumped over the fence to get next door. Defendant wanted to talk to

the victim because he heard he was selling marijuana laced with bath salts and a girl had

been hospitalized. Defendant wanted to confront the victim. After he jumped the fence,

he stood beside Barrow who was talking to the victim. The victim grabbed defendant and

threw him.

9
 Barrow confronted the victim as to why he had thrown defendant. The victim hit

Barrow in the side of the head. Barrow responded by pushing him into a nearby SUV

and the window broke. Barrow hit the victim. Defendant thought everything was over

and started to run. He saw one of the victim’s family members run up with a knife in his

hand. The victim was already in the house and defendant stood outside in the street. The

victim’s family members called his group the “N” word and cussed at him. Defendant

grabbed a golf club and hit one of their cars. He insisted he was in Barrow’s yard when

the police arrived; he did not leave. He never talked to the police because they never

asked to speak with him.

When he first spoke with Deputy Valenciano she asked him if he was present at a

stabbing. He did not know what she was talking about because he claimed no one was

stabbed during the incident with the victim. He was in Palm Springs sometime around

the time of the incident. Defendant denied he had a knife during the incident. He did not

say anything to the victim that day; he never threatened to kill him or told him he was

going to die. Defendant insisted it was only a fight between the victim and Barrow, and

no one was stabbed.

DISCUSSION

A. INSUFFICIENT EVIDENCE

Defendant contends the evidence was insufficient to support his conviction of

(1) assault with a deadly weapon not a firearm, and (2) making criminal threats.

10
 1. STANDARD OF REVIEW

The California Supreme Court has stated that in assessing a sufficiency of the

evidence claim, “the court must review the whole record in the light most favorable to the

judgment below to determine whether it discloses substantial evidence—that is, evidence

which is reasonable, credible, and of solid value—such that a reasonable trier of fact

could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980)

26 Cal.3d 557, 578.) “ ‘“ ‘Once such evidence is found, the substantial evidence test is

satisfied. [Citation.] Even when there is a significant amount of countervailing evidence,

the testimony of a single witness that satisfies the standard is sufficient to uphold the

finding.’ ” (People v. Fuiava (2012) 53 Cal.4th 622, 711.) The testimony of “a single

witness is sufficient to uphold a judgment even if it is contradicted by other evidence,

inconsistent or false as to other portions.” (People v. Leigh (1985) 168 Cal.App.3d 217,

221; see also People v. Wetle (2019) 43 Cal.App.5th 375, 388.)

2. ASSAULT WITH A DEADLY WEAPON

Defendant argues there was no substantial, credible evidence presented that he was

in possession of a knife and stabbed the victim, to support that he committed assault with

a deadly weapon.

“The crime of assault with a deadly weapon has two components: ‘(1) the assault,

and (2) the means by which the assault is committed.’ ” (In re Raymundo M. (2020) 52

Cal.App.5th 78, 85 (Raymundo).) “For purposes of assault with a deadly weapon under

section 245(a)(1), ‘a “deadly weapon” is “any object, instrument, or weapon which is

used in such a manner as to be capable of producing and likely to produce, death or great

11
bodily injury.” [Citation.] Some few objects, such as dirks and blackjacks, have been

held to be deadly weapons as a matter of law; the ordinary use for which they are

designed establishes their character as such. [Citation.] Other objects, while not deadly

per se, may be used, under certain circumstances, in a manner likely to produce death or

great bodily injury.’ [Citation.] ‘Because a knife can be, and usually is, used for

innocent purposes, it is not among the few objects that are inherently deadly weapons.’

[Citation.] ‘In determining whether an object not inherently deadly or dangerous is used

as such, the trier of fact may consider the nature of the object, the manner in which it is

used, and all other facts relevant to the issue.’ ” (Id., at pp. 85-86.)

Here, aunt called 911 immediately following the incident. She told the 911

operator that the people next door had “stabbed my nephew.” She also stated that the

“little one” who had jumped the fence had stabbed the victim. She could not describe the

size of the knife but only stated that it was shiny. At trial, the victim testified that

defendant pulled a knife out of his waistband and swung at him. He felt the pain of the

knife going into his head. The victim was certain at trial that defendant was holding a

knife and described it as a fixed-blade knife with an eight-inch blade. The victim’s

mother testified at trial that she observed defendant jump over the fence between the two

properties and pull a knife out of his waistband. She described the knife as being eight

inches long. Defendant stabbed the victim in the head with the knife. The victim had a

gash on his head as a result. The trial court was shown photographs of the injury.

In finding the evidence supported that defendant committed assault with a deadly

weapon, the trial court did not think that the victim and his mother had a motive to lie.

12
He recognized that the victim’s mother may be biased, but she clearly identified

defendant as being present at the scene. Further, the victim and his mother corroborated

each other on the details of the incident. The trial court believed that the victim and his

mother saw a knife and had no motive to lie. It was consistent that defendant would

threaten to kill the victim while holding a knife. The trial court also found that defendant

was not credible based on him changing his story about the incident several times.

Finally, the trial court did not believe that the victim would have received a wound on the

back of his head from being slammed into the car window.

The evidence supports the trial court’s conclusion that defendant had the knife and

committed assault on the victim. The victim stated when Deputy Cosper arrived that

defendant had a knife and had stabbed him. The victim had blood on his head and a

puncture wound. Aunt also stated on the 911 call that the victim had been stabbed.

Based on this testimony, the trial court could conclude that defendant had stabbed the

victim and caused the injury to the victim’s head, supporting defendant’s conviction of

assault with a deadly weapon.

Defendant relies on the inconsistencies in the testimony given by the victim and

his mother. However, “ ‘Conflicts and even testimony which 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.’ ” (People v. Lee

(2011) 51 Cal.4th 620, 632.)

13
 Defendant refers to the 911 call and insists that the victim could not describe the

knife to aunt on the day of the incident. However, the person speaking with aunt was

never identified on the 911 call. Such speculation that it was the victim and he could not

identify the knife is not supported by the record. Further, defendant complains about the

victim’s statement to Deputy Cosper that the victim could only identify the knife as shiny

and steel. He also points to the victim being asked about the preliminary hearing

testimony in which he only described the knife as being shiny.4 Defendant contends that

if the victim truly saw a knife, he would have been able to describe it. The victim was

adamant at trial that he saw a knife and was able to describe it. The trial court reasonably

could believe that the victim saw something in defendant’s waistband, and that it was in

fact a knife based on the puncture wound to the victim’s head. We will not reassess the

victim’s credibility on appeal as it was the trial court’s duty to assess his credibility.

(People v. Lee, supra, 51 Cal.4th at p. 632.)

Further, defendant claims that, based on his expert Bales’s testimony, the stabbing

was a “physical impossibility.” Bales testified he would have expected that a blow to the

head with the knife described by the victim would be a lethal blow and that his injury was

not consistent with a knife wound. At one point, however, Bales described the wound as

a “small cut” and also as a “puncture wound.” Bales also admitted that knives can cause

puncture wounds and that no glass was removed from the victim’s head; but that his prior

4 Defendant refers to all of the testimony at defendant’s preliminary hearing but it
was not all admitted at trial. Only portions of the preliminary hearing testimony were
discussed at trial.

14
experience with glass wounds resulted in “flayed open” wounds and not puncture

wounds.

Bales never testified it was a “physical impossibility” that the victim was stabbed.

Rather, he testified that he would have expected a different type of wound and that the

blow would have been lethal. However, the trial court relied upon the photograph of the

wound, witness testimony, and that the wound could not have been caused by the glass

breaking. Such conclusion is supported by the evidence.

Based on the evidence before the trial court, it could reasonably conclude that

defendant had stabbed the victim in the head to support his conviction of assault with a

deadly weapon.

3. CRIMINAL THREATS

Defendant insists his criminal threats conviction in count 2 was not supported by

substantial evidence as the threat did not cause the victim to be in sustained fear based on

defendant’s threats.

The elements of a criminal threat under section 422 are as follows: “The

prosecution must prove ‘(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 electric 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

15
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.’ ” (In re George T. (2004) 33 Cal.4th 620, 630;

People v. Toledo (2001) 26 Cal.4th 221, 227-228; see also § 422.)

“A threat is sufficiently specific where it threatens death or great bodily injury. A

threat is not insufficient simply because it does ‘not communicate a time or precise

manner of execution, section 422 does not require those details to be expressed.’ ”

(People v. Butler (2000) 85 Cal.App.4th 745, 752.) “[I]t is the circumstances under

which the threat is made that give meaning to the actual words used. Even an ambiguous

statement may be a basis for a violation of section 422.” (Id. at pp. 753-754.)

“ ‘Sustained fear’ refers to a state a mind.” (People v. Fierro (2010) 180

Cal.App.4th 1342, 1349 (Fierro).) “[A] victim can experience sustained fear even if the

fear exists only during the incident itself, as long as the fear during the incident is more

than ‘momentary, fleeting, or transitory.’ ” (People v. Brugman (2021) 62 Cal.App.5th

608, 634.)

In Fierro, the court concluded there was substantial evidence the victims felt

“sustained fear” when a father and son got into an argument with defendant at a gas

station and heard the defendant say, “ ‘I will kill you . . . right now,’ ” and lifted up his

shirt to reveal a weapon. Both victims were afraid that the defendant was going to shoot

them. (Fierro, supra, 180 Cal.App.4th at pp. 1345-1346, 1349.) The Fierro court found

that even a single minute of fear, during which the victim heard the threat and saw the

16
weapon, qualified as “sustained” under the statute. (Id. at p. 1349.) “When one believes

he is about to die, a minute is longer than ‘momentary, fleeting, or transitory.’ ” (Ibid.)

Based on the statements made by defendant and the surrounding circumstances,

there was sufficient evidence of a violation of section 422. Defendant pulled a knife from

his waistband. The victim had just been pushed into the SUV by Barrow. At that point,

defendant said he was going to kill the victim and the victim was going to die. The

victim specifically testified that he was in fear when defendant made those statements.

As in Fierro, the threat, along with seeing the knife in defendant’s hand, was sufficient to

support that the victim was in sustained fear of his life. Defendant then rushed toward

the victim and stabbed him in the head. This was more than sufficient evidence to

support that the victim’s fear was more than momentary or fleeting.

Defendant claims that his words were not the cause of fear for the victim because

at the time he said the words, Barrow had already pushed him into the SUV and

defendant was supposedly coming at him with a knife. However, the testimony from the

victim was clear that when defendant was holding the knife and told him that he was

going to kill him, he was scared. Defendant tries to distinguish the victims’ fears in

Fierro, supra, 180 Cal.App.4th 1342 by claiming there was no direct testimony from the

victim that he was afraid of defendant’s words. However, we see no difference in this

case from Fierro. The showing of the weapon in each case occurred simultaneously with

the threat to kill. The victim specifically stated he was in fear when defendant had the

knife in his hand and threatened to kill him.

17
 Substantial evidence supports that the victim’s fear of defendant when he held a

knife to him and threatened to kill him was more than “ ‘momentary, fleeting, or

transitory’ ” (Fierro, supra, 180 Cal.App.4th at p. 1349.) The evidence supports

defendant’s conviction of making criminal threats.

B. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant contends his counsel should have presented the victim’s inconsistent

preliminary hearing testimony on the question of whether he lost consciousness and

therefore did not see defendant stab him, and that he had previously testified that he could

not recall if Barrow or defendant had the knife. These inconsistent statements were

admissible pursuant to Evidence Code section 1235. The People insist the issue is better

raised in a habeas corpus petition based on there being no explanation from counsel as to

why the statements were not admitted, and the prior inconsistent statements are not

readily available in the record. We disagree with the People as to the unavailability of

the prior testimony, as the preliminary hearing testimony is part of the record. However,

since there is no explanation from counsel for the reasons the statements were not

admitted, we agree this claim is better raised in a habeas corpus petition.

1. ADDITIONAL FACTUAL HISTORY

The prosecutor had to obtain an order compelling the victim’s appearance at the

preliminary hearing. The victim testified about the events of December 29, 2019. He

identified defendant and said that defendant was a member of Westside PJ. He stated that

two of the men pushed him against a car. He testified, “I get hit in the head. I kind of

black out a little bit. When I come to, I got blood, like, coming all up from my head and

18
all over my face.” He was asked further about being pushed into the car. The victim

responded, “Like I said, I blacked out. You know what I mean? When I came to, I had

blood all over me already.” The victim was asked, “Do you remember telling Deputy

Cosper that one of the men was holding a knife in their right hand?” He responded,

“Yeah.” The victim also stated that “I remember seeing the knife, but I mean, they

were—it was, like, in the middle of both of them, and they were both coming at me, and I

had no time to, like—you know what I mean?” The victim was asked if he remembered

getting stabbed anywhere on his body, and he responded, “Like I said, it happened really

fast, you know. And I’m sure, like, when it happened, that’s what made me black out,

close my eyes, or maybe adrenaline. Close my eyes. Whatever it was.”

The victim later said he remembered being hit and that it felt like a “penetrative,

contactive blow.” He felt the knife penetrating his head. He lifted his hand to feel the

wound. The victim also identified defendant as being the one who stabbed him with the

knife. The victim stated he had threats on his life about testifying at the preliminary

hearing. He was scared for his own safety. He clarified that he went unconscious or

closed his eyes after he was stabbed in the head.

During the victim’s trial testimony, the following exchange occurred:

“[Defense Attorney:] As you sit here today, you’re telling me that you don’t recall

how many times you were stabbed in the head?

“[The Victim:] I know the first time I got stabbed in the head it was a surreal

feeling, so I was trying to get out of there. I wasn’t trying to get hurt any more.

19
 “[Defense Attorney:] And isn’t it true that when you were at the preliminary

hearing, you testified you said that, in fact, Mr. Barrow hit you so hard against the glass

of that vehicle that you momentarily blacked out? Do you remember saying that?”

“[The Victim:] I remember saying something of the sort where I needed to—I

needed to—I needed to sum up the answer. I needed to explain what that was. And that

was a surreal moment. It wasn’t a blackout. It wasn’t a lose consciousness. It was a

moment of understanding that things were going—were real—getting real at the moment

as far as I got stabbed in the head and my aunt was on top of me pushing this guy off of

me.

“[Defense Attorney:] Let me stop you there. Now, when you testified at the

preliminary hearing, you said you didn’t remember who had the knife. Do you remember

saying that?

“[The Victim:] I did not say I remember who had the knife. I remember saying he

had something shiny in his waistband and that whether or not he had pulled it out and

used it.”

The victim was later asked, “All right, but you said earlier though when you got

hit, you sort of blacked out or you had a kind of out-of-body experience?” The victim

responded, “I didn’t say black. I said like surreal moment.” He was asked, “Surreal

moment. Where you kind of weren’t registering what was going on. Is that safe to say?”

The victim stated, “I was fully registering everything that was going on. I was

understanding that I had just got struck in the head with a knife.”

20
 2 ANALYSIS

“The standard for showing ineffective assistance of counsel is well settled. ‘In

assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s

representation fell below an objective standard of reasonableness under prevailing

professional norms and whether the defendant suffered prejudice to a reasonable

probability, that is, a probability sufficient to undermine confidence in the outcome.

[Citations.] A reviewing court will indulge in a presumption that counsel’s performance

fell within the wide range of professional competence and that counsel’s actions and

inactions can be explained as a matter of sound trial strategy. Defendant thus bears the

burden of establishing constitutionally inadequate assistance of counsel.’ ” (People v.

Gray (2005) 37 Cal.4th 168, 206-207 (Gray); see also Strickland v. Washington (1984)

466 U.S. 668, 687.)

“If the record on appeal sheds no light on why counsel acted or failed to act in the

manner challenged, an appellate claim of ineffective assistance of counsel must be

rejected unless counsel was asked for an explanation and failed to provide one, or there

simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more

appropriately raised in a petition for writ of habeas corpus.” (Gray, supra, 37 Cal.4th at

p. 207.)

The record does not illuminate the reasons why counsel chose not to introduce the

preliminary hearing testimony at trial. Defendant does not argue that there was no

satisfactory explanation for counsel’s failure to seek the actual testimony from the

preliminary hearing be admitted. In fact, defendant acknowledges that counsel did cross-

21
examine the victim by asking about his preliminary hearing testimony but complains that

trial counsel did not seek to admit the victim’s statements from the preliminary hearing.

The record does not shed light on why counsel failed to seek to admit the exact

statements the victim made at the preliminary hearing. While we may surmise that since

the victim later clarified his statements at the preliminary hearing, counsel may have felt

their admission was not helpful to defendant. However, we will not speculate, and as

such, defendant has not met his burden of establishing ineffective assistance of counsel

on appeal. The claim is better addressed in a habeas corpus petition. (Gray, supra, 37

Cal.4th at p. 207.)

C. SECTION 654

Defendant insists his assault with a deadly weapon and criminal threats

convictions in counts 1 and 2 occurred in a single transaction. The trial court erred by

refusing to stay his 16-month sentence on count 2.

1. ADDITIONAL FACTUAL BACKGROUND

Defendant submitted a sentencing memorandum. Defendant argued that section

654 applied to the convictions based on the charges arising out of the same act and they

occurred contemporaneously. The court should stay the penalty for the criminal threats

conviction.

At the sentencing hearing on March 15, 2021, the trial court considered the

probation report and defendant’s sentencing memorandum. The trial court asked the

prosecutor to address whether count 2 should be stayed. The prosecutor argued that

count 2 was a separate act. The trial court found, “As for the sentence itself, I disagree

22
with [defense counsel] as to staying Count 2. I don’t think it qualifies under 654. I think,

again, telling someone that you’re going to kill them is not part and parcel of a 245 with a

knife. That type of language certainly again increases the amount of harm and makes the

situation even worse. To say those sorts of words can and did I know frighten the victim

even more as he’s being assaulted in his own home no less, his driveway, where he lives.

It’s supposed to be a place of safety. So there’s no basis at least in my opinion that Count

2 should be stayed.”

Defendant was then sentenced to the upper term of eight years on the assault with

a deadly weapon conviction in count 1. The trial court then sentenced defendant to one

year four months on the criminal threats conviction in count 2, and it was ordered to run

consecutive to the charge in count 1.

2. ANALYSIS

Section 654 provides, in relevant part, “An act or omission that is punishable in

different ways by different provisions of law shall be punished under the provision that

provides for the longest potential term of imprisonment, but in no case shall the act or

omission be punished under more than one provision.” (Former § 654, subd. (a).)5 The

statute “expressly prohibits separate punishment for two crimes based on the same act,

but has been interpreted to also preclude multiple punishment for two or more crimes

5 Section 654 had been modified since sentencing in this case, effective January 1,
2022, to read “An act or omission that is punishable in different ways by different
provisions of law may be punished under either of such provisions, but in no case shall
the act or omission be punished under more than one provision.” (Stats. 2021, c 441
(A.B. 518), § 1, eff. Jan. 1, 2022, italics added.) The change does not impact the issue
raised on appeal.

23
occurring within the same course of conduct pursuant to a single intent.” (People v.

Vargas (2014) 59 Cal.4th 635, 642.)

“Whether a defendant may be subjected to multiple punishment under section 654

requires a two-step inquiry, because the statutory reference to an ‘act or omission’ may

include not only a discrete physical act but also a course of conduct encompassing several

acts pursued with a single objective. [Citations.] We first consider if the different crimes

were completed by a ‘single physical act.’ [Citation.] If so, the defendant may not be

punished more than once for that act. Only if we conclude that the case involves more

than a single act—i.e., a course of conduct—do we then consider whether that course of

conduct reflects a single ‘ “intent and objective” ’ or multiple intents and objectives.”

(People v. Corpening (2016) 2 Cal.5th 307, 311.)

“The question 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. Its findings on this question must be upheld on appeal if there is any

substantial evidence to support them.” (People v. Hutchins (2001) 90 Cal.App.4th 1308,

1312.)

Defendant was holding the knife when he threatened the victim that he was going

to kill him. We have already concluded that this caused the victim to be in fear of his

life. Defendant then stabbed the victim. These two acts were separate. Moreover, the

evidence supports that defendant harbored separate objectives.

In Raymundo, supra, 52 Cal.App.5th 78, the defendant and several other young

men approached another young man on the street. The defendant was holding a knife and

24
chased after the young man. He yelled to the young man when he got close to him that

he was “ ‘ going to die today.’ ” (Id. at p. 83.) The trial court sentenced the defendant on

the criminal threats in addition to the assault conviction. On appeal, the defendant argued

that the trial court should have stayed the criminal threats sentence because it was

duplicative of the assault conviction. (Id. at p. 83, 94.)

The appellate court held that the trial court “could reasonably have found that [the

defendant] committed the assault with the objective of inflicting physical harm on [the

victim], whereas [the defendant] criminally threatened [the victim] with the separate

objective of inflicting mental or emotional harm.” (Raymundo M., supra, 52 Cal.App.5th

at p. 95.) Citing to several other cases that held the same, the court observed, “[c]ourts

routinely recognize similar distinctions.” (Ibid.)

This case is similar to Raymundo. While holding the knife, defendant told the

victim that the victim was going to die and that the defendant was going to kill him. He

then stabbed the victim in the head. The trial court reasonably concluded the threat,

“increase[d] the amount of harm” and “frighten[ed] the victim even more as he’s being

assaulted in his own home no less, his driveway, where he lives.” The trial court’s

reasons are similar to the conclusion in Raymundo, that the threat had a separate objective

of causing mental or emotional harm. The trial court properly imposed consecutive

sentences on counts 1 and 2.

D. SB 567

Defendant contends that SB 567’s amendment to section 1170, subdivision (b),

requires remand for resentencing in order for the trial court to reconsider his sentence

25
under the new law. The People contend remand is unnecessary as any conceivable error

the trial court made in imposing the upper term was harmless beyond a reasonable doubt.

1. ADDITIONAL FACTUAL HISTORY

In his sentencing memorandum, defendant argued there were several mitigating

factors, including the factors relating to the crime. He argued he was not the primary

aggressor and the injuries sustained by the victim were not severe. Further, defendant

argued factors relating to defendant in mitigation included that he had an insignificant

criminal record for which he had never served more than two years in prison. Further, a

lengthy prison sentence would not serve the ends of justice.

Defendant was sentenced on March 15, 2021. The trial court had read the

probation report and letters submitted by defendant. The probation report listed the

following aggravating factors: (1) the crime involved great violence, great bodily harm

or other acts disclosing a high degree of cruelty, viciousness, or callousness; (2) he was

armed with a weapon at the time of the crime; (3) he had engaged in violent conduct that

indicated a serious danger to society; (4) his prior convictions as an adult were numerous

or of increasing seriousness; (5) he had served a prior prison or county jail term; (6) he

was on probation or parole at the time the crimes was committed; and (7) his prior

performance on probation or parole was unsatisfactory. There were no factors in

mitigation. The probation report also listed defendant’s prior convictions beginning in

2006. Defendant was convicted of the prior serious and violent felony conviction he

admitted in this case in 2017, and was released on parole on June 17, 2018.

26
 Defendant’s sister, his aunt and his mother all provided letters that stated he had a

substance abuse problem and would benefit from treatment. They also asked the trial

court to have mercy on defendant. Defendant’s counsel was requesting a sentence of four

years. The prosecution requested that the trial court impose the upper term on count 1,

doubled for the strike, for a total of eight years; and that count 2, which should be one

year four months, run consecutive to count 1. The prosecutor recommended that the

sentence on the five-year prior conviction—found true pursuant to section 667,

subdivision (a)(1)—be stayed. The trial court noted that the probation department had

recommended a sentence of 14 years 4 months, which would require imposition of the

sentence on the serious prior conviction.

The trial court told defendant, “I don’t intend to max you out, sir. [¶]

[Defendant], I don’t doubt everything that people have said about you. I don’t doubt that

at all. I think all of those letters are sincere. I think your letter to me was sincere. I agree

with all of those things. To some degree though, my hands are a little tied at this point.

And I hope you recognize that.” The trial court further stated, “Once I actually hear the

facts of the case and we get—and there’s a conviction, then we get this far, then, you

know, then my hands become tied to some degree.” Defendant was ineligible for

probation because of his criminal record. Further, he had failed several times in

rehabilitation programs. The trial court felt that stabbing “someone in the head with a

knife is a serious and violent felony.” Based on defendant’s record, the trial court noted

that it would not strike the prior.

27
 The trial court again stated that it did not agree with the probation report that

defendant should be maxed out on his sentence. The trial court praised defendant for

having shown remorse and insight into his behavior. “I’m not looking to put you in

prison for as long as possible. That is not my goal here.” The trial court agreed the five-

year prior should be stayed.

In imposing the upper term on count 1, the trial court noted, “Your record doesn’t

warrant low term. The mitigating circumstances are next to none other than you’ve

shown semi-remorse, which I appreciated, which is getting your nickel prior stayed.

Other than that—and not being the primary aggressor in the beginning, although what

you end up doing is a lot more serious than what the other person did. I’ll say that.” It

found the aggravating circumstances outweighed the mitigating circumstances.

In imposing sentence, the trial court relied on defendant’s criminal record, which

dated back to 2006. The trial court had reviewed his history in the probation report.

Defendant had a prior serious or violent felony conviction, which he admitted and was

recent. The trial court considered the current assault conviction to be a serious and

violent felony conviction. The trial court concluded that the aggravating factors

outweighed the mitigating factors and imposed the upper term on count 1.

2. APPLICATION OF SB 567

SB 567 amended section 1170, effective January 1, 2022. It allows the trial court

to impose an upper term sentence under only certain circumstances. Effective January 1,

2022, section 1170, subdivision (b)(1) provides “When a judgment of imprisonment is to

be imposed and the statute specifies three possible terms, the court shall, in its sound

28
discretion, order imposition of a sentence not to exceed the middle term, except as

otherwise provided in paragraph (2).” (Fn. omitted.) Subdivision (b)(2) provides, “The

court may impose a sentence exceeding the middle term only when there are

circumstances in aggravation of the crime that justify the imposition of a term of

imprisonment exceeding the middle term, and the facts underlying those circumstances

have been stipulated to by the defendant, or have been found true beyond a reasonable

doubt at trial by the jury or by the judge in a court trial. Except where evidence

supporting an aggravating circumstance is admissible to prove or defend against the

charged offense or enhancement at trial, or it is otherwise authorized by law, upon

request of a defendant, trial on the circumstances in aggravation alleged in the indictment

or information shall be bifurcated from the trial of charges and enhancements. The jury

shall not be informed of the bifurcated allegations until there has been a conviction of a

felony offense.”

At the time of defendant’s sentencing in March 2021, section 1170, subdivision

(b), gave the trial court discretion in selecting a lower, middle, or upper term after

considering the record, the probation officer’s report, and other evidence. (Former

§ 1170, subd. (b) [“The court shall select the term which, in the court’s discretion, best

serves the interests of justice”].) However, under the newly amended law, the trial court

may only impose an upper term sentence where the facts underlying all of the

aggravating circumstances have been stipulated by the defendant or found true beyond a

reasonable doubt by a jury or court trial. (§ 1170, subd. (b)(2).)

29
 There is an exception to the requirement of the jury or court finding the

aggravating circumstances true beyond a reasonable doubt. Under section 1170,

subdivision (b)(3), the trial court, “may consider the defendant’s prior convictions in

determining sentencing based on a certified record of conviction without submitting the

prior convictions to a jury.” (§ 1170, subd. (b)(3).) However, section 1170, subdivision

(b)(5), provides in pertinent part, “The court may not impose an upper term by using the

fact of any enhancement upon which sentence is imposed under any provision of law.”

(§ 1170, subd. (b)(5).)

Initially, the People agree that the provision applies retroactively. SB 567’s

amendments to section 1170, subdivision (b), lessens punishment, and there is no

indication that the Legislature intended it to apply prospectively only. As such, the new

law must be retroactively applied. (See In re Estrada (1965) 63 Cal.2d 740, 744-745;

People v. Flores (2022) 73 Cal.App.5th 1032, 1039.)

Here, the trial court did find that defendant committed the crime of assault with a

deadly weapon with a knife. However, the trial court did not separately determine the

truth of the aggravating factors beyond a reasonable doubt as required by the amendment

to section 1170. The People contend that such failure to consider the truth of the

aggravating factors was harmless beyond a reasonable doubt. The People insist that the

certified records, if obtained, would support the trial court’s reasons for imposing the

upper term. We choose to remand for resentencing rather than address the People’s

argument for the reasons stated post.

30
 Neither of the parties have addressed that the trial court stayed the sentence on the

section 667, subdivision (a)(1), serious felony enhancement. Prior to January 1, 2019,

trial courts were required to impose a properly pleaded and proven enhancement under

section 667, subdivision (a)(1). (People v. Jordan (2006) 141 Cal.App.4th 309, 319.)

However, the law was changed to provide trial courts with discretion to dismiss such

enhancements, or to strike the punishment therefor, “in the furtherance of justice.”

(Former, § 1385, subd. (b).) The current version of section 1385, effective January 1,

2022, does not authorize the stay of a sentencing enhancement but allows the trial court

to dismiss the punishment for the enhancement under section 1385, subdivision (b)(1).

(Stats. 2021, c 721 (S.B. 81), § 1, eff. Jan. 1, 2022.) As such, since defendant’s case is

still pending on appeal, defendant’s sentence is unauthorized. Additionally, it is not clear

whether the trial court would choose to impose or strike the enhancement, or strike the

punishment, even though it mentioned it did not want to max out defendant’s sentence, as

it also refused to strike the prior conviction.6

Based on the changes made by SB 567 to section 1170, and that the record does

not shed light on whether the trial court would have struck or imposed the five-year prior

if had known it could not stay the enhancement, remand to the trial court for resentencing

is the appropriate remedy.

6 We also note that there are several factors in section 1385 that prohibit
imposition of an enhancement, which may be applicable to defendant’s section 667,
subdivision (a)(1) prior. (See § 1385, subdivision (c)(1).)

31
 DISPOSITION

Defendant’s sentence is vacated and remand for resentencing is ordered in

accordance with this opinion. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER
J.

We concur:

McKINSTER
Acting P. J.

CODRINGTON
J.

32