Opinion
C088250
06-17-2020
THE PEOPLE, Plaintiff and Respondent, v. LISA MARIE BELYEW, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Colusa County Super. Ct. No. CR57771; Butte County Super. Ct. No. 16CF06270)
Following an argument in a Colusa County motel, defendant Lisa Marie Belyew stabbed her husband in the arm with a knife through the bathroom door; he was injured and escaped out the bathroom window. She represented herself at trial, and was convicted of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), corporal injury on a spouse (§ 273.5, subd. (a)), and vandalism (§ 594, subd. (b)(1)) with allegations of personal infliction of great bodily injury (§ 12022.7, subd. (e)) and use of a deadly weapon (§ 12022, subd. (b)(1)) also found true. She was sentenced to an aggregate term of 13 years in state prison, which included a sentence for a previous domestic violence conviction for stabbing the same victim in Butte County.
Undesignated statutory references are to the Penal Code.
Appointed counsel for defendant filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant then filed an oversized supplemental brief raising numerous issues on appeal.
Defendant contends the trial court prejudicially erred by: (1) denying her motion to dismiss for violation of her rights to a speedy trial and for delay in prosecution; (2) denying her discovery motions before her preliminary hearing as well as her motion for exculpatory blood and DNA evidence that law enforcement failed to preserve from the crime scene; (3) denying her Pitchess motion; and (4) denying her motion for a new trial based on alleged judicial and prosecutorial misconduct.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
Defendant also argues (5) insufficient evidence supports her convictions; (6) the trial court erroneously admitted evidence of the domestic violence incident with her husband in Butte County under Evidence Code section 1109 because the prosecutor failed to timely disclose the information; (7) the court misinstructed the jury by lightening the prosecutor's burden of proof, unnecessarily emphasizing certain instructions, incorrectly stating the law, and giving instructions that the evidence did not support; and (8) the court improperly denied her appointment of an expert psychologist to examine the victim for mental illness related issues to support her defense.
She further contends (9) the imposed fees, fines, and assessments must be stayed or otherwise vacated pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) and the prohibition against excessive fines; (10) her presentence custody credits were improperly calculated; (11) section 1170.1 and section 654 barred punishing her for the great bodily injury and use of a weapon enhancements; (12) the court erred in imposing the upper term on her corporal injury conviction; (13) that she was denied the effective assistance of standby counsel and denied her constitutional right to testify; and, finally, (14) that reversal is required due to the cumulative effect of the alleged errors.
Finding no merit to her contentions, we shall affirm her convictions with slight modifications as described herein. We shall impose mandatory assessments on one of the counts that the trial court failed to impose, and we shall impose the low term on the assault counts that it stayed pursuant to section 654, as the one-third-the-midterm rule does not apply to counts stayed under section 654. As so modified, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Colusa County Stabbing
On February 2, 2016, defendant and her husband were staying at the Colusa Motel. During the day they argued, and the victim left the motel to go fishing. Upon returning, defendant would not let him back into the motel room.
At some point, defendant called 911 to report that her husband would not stop knocking on the window to the room, and said that she was "about ready to stab the mother fucker for real." During the call, defendant stated that she was in room 109 at the Colusa Motel and she identified herself as "Storm."
Defendant's 911 call was played for the jury.
Defendant eventually let the victim in, and he went to the bathroom; he did not see anyone else besides defendant in the room at that time. While in the bathroom, someone began stabbing a knife through the bathroom door. The victim grabbed the door handle and tried to keep the door closed. During the struggle, the victim's arm was slashed, causing it to bleed.
The victim escaped the bathroom by jumping out the window; he injured his leg from the fall. He sought help in the motel manager's office, and the motel manager called police. The victim hid inside the motel carport until police arrived.
City of Colusa Police Officer Larry Lorman first responded to room 109 at the Colusa Motel around 6:00 p.m. after receiving a report of a woman threatening to stab her husband. Lorman spoke with defendant through the motel room window; the officer observed a hunting knife tucked into defendant's waistband. Defendant said that she and her husband had a disagreement over ownership of a pickup truck. At the time, Lorman did not notice any injuries on defendant. He did not see the victim, and left the motel.
Officer Lorman returned to the Colusa Motel approximately 40 minutes later in response to a report of a wounded man. Lorman located the victim outside the motel manager's office underneath a carport. Lorman saw that the victim's right arm was injured. When he asked the victim if someone stabbed him, the victim initially responded "yeah," and identified the person who stabbed him as "Storm." When Lorman asked him again who stabbed him, he said he did not know.
After interviewing the victim, Officer Lorman returned to room 109 and loudly knocked on the door, announcing his presence. No one answered. Lorman then obtained the manager's key to enter the room. After knocking and announcing again without any response, Lorman opened the door and saw defendant lying on one of the motel beds feigning sleep. The room had been destroyed; mirrors and lamps were broken, the bathroom door and room walls were damaged, and there was blood everywhere. Defendant had blood on her face and clothing, and there was a blood stain on the bed where she lay.
Officer Lorman asked defendant whether she was injured; she did not report any injuries. He noticed that defendant no longer had the hunting knife he had seen earlier, although she was still wearing the sheath around her waist. The knife blade was eventually located on the bathroom floor; the handle had been broken off and was found under the nightstand. The broken knife matched the sheath found on defendant.
Because Officer Lorman had already contacted the victim, who was bleeding from his injury, and defendant did not appear to be injured, Lorman did not collect any blood or DNA samples from the scene. He arrested defendant. During the arrest, defendant was very hostile and physically combative. She told Lorman that she did not do anything, and said that "[s]omebody else was involved in this shit," although she never identified the alleged third person.
The victim was admitted to the emergency room for his injuries. The emergency physician listed his "chief complaint" as "Patient stabbed by a knife his wife was using to cut him. He suffered a positive for right forearm laceration and positive for left-knee pain after jumping out a window." Nothing in the medical records indicated the physician obtained the complaint information from anyone other than the victim. The victim's arm wound took five stitches to close.
Nurse Cheryl Bird escorted the victim from the hospital upon discharge. In response to her statement that "[i]t look[ed] like [he had] had a rough night," the victim responded, "Yeah, I got stabbed by my wife, and now I'm getting kicked out of the hospital."
Procedural Background
We offer a general overview of the procedural history of this matter. Additional background information relevant to the issues on appeal is discussed more fully below.
Arrest and Initial Charges
Defendant was arrested the day of the stabbing and was released on her own recognizance three days later with a promise to appear on March 1, 2016. On February 26, defendant was charged in Colusa County case No. CR57771 (Colusa County case) with assault with a deadly weapon (§ 245, subd. (a)(1)), and vandalism (§ 594, subd. (b)(1).) She was arraigned on March 1, and the court appointed Colusa County Public Defender Albert Smith to represent her.
On March 23, 2016, the prosecutor filed a first amended complaint alleging assault with a deadly weapon (§ 245, subd. (a)(1)), corporal injury to a spouse (§ 273.5), and vandalism (§ 594, subd. (b)(1)). That same day, defendant appeared with Smith and waived a further reading and advisement of rights, entered pleas of not guilty on the amended complaint, and waived further arraignment. She did not waive time for the preliminary hearing, which was set for April 6.
Preliminary Hearing and Pretrial Motions
On the date of the preliminary hearing, Smith declared a conflict and asked to be relieved because defendant had secretly taped their confidential conversations, posted the conversations on the Internet, and provided the court with a transcribed copy of the communications as part of a Marsden motion she filed herself. After relieving Smith as counsel, the court granted defendant's request to represent herself.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
Defendant requested a continuance and personally waived time for the preliminary hearing. The court continued the preliminary hearing to May 11, 2016, with a confirmation hearing on April 20.
At the April 20, 2016, confirmation hearing, defendant stated she had not yet obtained discovery from the prosecutor after having been told she had to pay for copies. The court ordered the prosecutor to provide defendant with the discovery by the end of the day free of charge, and the prosecutor made arrangements to have the discovery provided to defendant that day.
The following day (April 21) defendant filed a motion entitled "Omnibus Motion," seeking to dismiss the action because she was not taken to a magistrate within 48 hours of her warrantless arrest, and because the prosecutor had failed to file an information within 15 days of holding her to answer (even though the preliminary hearing had not yet been held).
On May 3, 2016, defendant filed a motion to discover the personnel records (Pitchess motion) of the responding officers. She also filed a motion to obtain discovery, including police body camera video, which she argued the prosecutor had wrongly withheld. On May 11, she filed a motion for exclusionary sanctions and dismissal based on the purported discovery violations.
On May 11, 2016, the date set for the preliminary hearing, the court ruled that defendant's motions were not properly noticed or served, and it declined to consider them. Defendant agreed to waive time to continue the preliminary hearing to June 8.
On May 23, 2016, defendant renewed her Pitchess motion, her motion to obtain discovery, her Omnibus Motion, and her motion to impose dismissal sanctions for the alleged discovery violations. Both the City of Colusa Police Department and the County of Colusa opposed the Pitchess motion, arguing the motion was untimely served, overbroad, and failed to establish good cause for the discovery.
On June 8, 2016, the court considered defendant's numerous motions. The trial court found that the motions were not properly noticed and served. It also found that the district attorney had provided discovery to defendant, and that he only had to provide reasonable accommodations for defendant to view the police body camera videos but was not required to produce copies of the videos. The court denied the sanction motion related to the alleged discovery violations.
After denying defendant's motions, the court held the preliminary hearing; the victim, City of Colusa Police Officer Lorman, and Colusa County Sheriff's Sergeant Elden Tamez testified. The court held defendant to answer. Thereafter, defendant personally waived time for arraignment and trial setting.
Information
On July 5, 2016, the prosecution filed an information charging defendant with assault with a deadly weapon (§ 245, subd. (a)(1); count I), corporal injury on a spouse (§ 273.5, subd. (a); count II), and vandalism of property valued over $400 (§ 594, subd. (b)(1); count III). The information further alleged that defendant personally used a deadly weapon (§ 12022, subd. (b)(1)), and personally inflicted great bodily injury (§ 12022.7, subd. (e)) during the corporal injury offense.
On July 6, 2016, defendant received a copy of the information, and waived further arraignment and advisement of rights. She pleaded not guilty to the charges and denied the special allegations. Defendant personally entered a general time waiver of her right to be tried within 60 days of her not guilty pleas. Trial was set for November 2016.
Additional Pretrial Motions
On August 10, 2016, defendant filed her third Omnibus Motion, raising the same issues as before. She also renewed her Pitchess and discovery motions.
During this time, defendant also moved to change venue to San Francisco, and she requested funds for a defense investigator. The court granted defendant's request for an investigator, and, later, after a conflict arose with the original investigator, the court approved defendant's request for funds to retain an alternative investigator. The court denied defendant's motion to change venue after finding defendant had failed to establish a reasonable likelihood that she could not receive a fair trial in Colusa County. Defendant then filed a peremptory challenge against Judge Thompson, which was answered and ordered stricken. Defendant filed another motion to change venue to Butte County as a more convenient forum, which was denied.
On October 19, 2016, the court denied defendant's Pitchess motion, finding that she failed to establish good cause for discovering the requested police personnel records. The court also denied defendant's third discovery motion, and her Omnibus Motion on the same grounds as before.
On November 2, 2016, defendant requested a trial continuance. She confirmed her previous entry of a general time waiver, and agreed to continue waiving time. Trial was reset for February 22, 2017.
Failure to Appear
In December 2016, the prosecutor sought to revoke defendant's own recognizance release and set bail because she was in custody in Butte County case No. 16F06270 (Butte County case) for allegedly stabbing her husband with an ice pick during a dispute in which she called him a " 'snitch' " in the Colusa County case. The court found good cause to revoke defendant's own recognizance release and set bail.
Further Pretrial Proceedings
On January 27, 2017, defendant filed an omnibus motion to dismiss for police misconduct, destruction of evidence, and failure to preserve exculpatory evidence. The People opposed, and the court denied the motion.
At the hearing on the omnibus motion to dismiss, on February 1, 2017, defendant represented that law enforcement in Butte County destroyed or took her copy of the discovery in the present case when they searched her home. At the court's request, the prosecutor agreed to provide defendant with a duplicate copy of the previously disclosed discovery materials.
On February 9, 2017, the date set to confirm the trial, defendant was absent from the proceedings. The record indicates the court in Butte County declared a doubt about defendant's competency and suspended criminal proceedings under section 1368; defendant was still in custody in Butte County.
Although the Colusa County court signed a production order requesting that Butte County transport defendant to Colusa County for the February 9, 2017, trial readiness conference, Butte County did not comply with the request (possibly due to the suspension of criminal proceedings in that county). Given defendant's absence, the court vacated the trial date, set bail at $500,000, and ordered a bench warrant for defendant's arrest.
Purported Revocation of Time Waiver
On March 23, 2017, the court received a letter from defendant purportedly withdrawing her time waiver and requesting to be tried within 60 days pursuant to section 1382, subdivision (a). Defendant mailed another letter to the court on April 6, stating that she had revoked her time waiver pursuant to section 1382. As directed by the court, the clerk responded that because she failed to appear for the trial confirmation date on February 9, 2017, a bench warrant had been ordered and was active, time was not running, and no further court dates were scheduled.
On May 1, 2017, defendant lodged a motion to dismiss the action with the court, claiming her right to a speedy trial was violated under section 1382. Given the pending warrant, the court struck the motion.
Butte County Case Convictions
Sometime over the course of the following year, defendant was deemed competent to stand trial in Butte County, and on March 13, 2018, was found guilty of assault with a deadly weapon (§ 245, subd. (a)(1)); count one) and corporal injury on a spouse (§ 273.5, subd. (a); count two). Allegations of personally inflicting great bodily injury (§ 12022.7, subd. (a)), use of a deadly weapon (§ 12022, subd. (b)(1)), and committing the offenses while released on her own recognizance in the Colusa County case (§ 12022.1) were also found true. In April 2018, she was sentenced in the Butte County case to seven years in state prison. A two-year term for the enhancement for committing the crimes while released in the Colusa County case was stayed pending the outcome of the Colusa County trial.
Further Pretrial Motions
Following her conviction and sentence in Butte County, defendant was brought back before the Colusa County court on June 26, 2018, and arraigned on the warrant for failing to appear. Defendant did not agree to waive time, and the following day trial was set for August 22, 2018.
On June 28, 2018, defendant filed another motion to dismiss based on section 1382, arguing her right to a speedy trial was violated. The People opposed, arguing section 1381 rather than section 1382 governed; the prosecutor asked the court to advance the trial date to comply with the 90-day deadline in section 1381. Agreeing with the People, the court set trial for August 7, 2018.
Defendant also filed a motion to dismiss for failure to disclose or preserve exculpatory evidence, citing Brady v. Maryland (1963) 373 U.S. 83 (Brady). The People opposed, and the court denied the motion after finding no Brady violation.
On July 3, 2018, defendant filed a motion for appointment of a neuropsychologist to evaluate the victim and the effects of his alleged brain damage to support her defense that he hallucinates and misperceives his surroundings when he fails to take medication. The court denied the motion.
Also on July 3, 2018, defendant filed a motion to suppress the victim's "involuntary statements" in Butte County. Two days later, defendant filed a motion to strike enhancements. The court later denied the motions.
On July 6, 2018, the prosecutor filed an Evidence Code section 402 motion seeking to admit evidence of defendant's Butte County stabbing attack on the victim under Evidence Code section 1109, among other provisions. In opposing the motion on July 17, defendant denied stabbing the victim and argued that his statements to Butte County law enforcement implicating her were coerced.
At the trial readiness conference on July 25, 2018, the court appointed attorney David Nelson as standby counsel, explaining that he would sit in court to observe the trial, but that he would not consult or otherwise assist defendant at trial; his sole purpose was to familiarize himself with the case in the event defendant's pro. per. status was terminated.
The court denied defendant's renewed motion to dismiss for failure to disclose exculpatory evidence under Brady, which duplicated defendant's earlier motion that the court denied.
On July 25, 2018, defendant also filed a nonstatutory motion to dismiss based on the purported deprivation of a substantial right at the preliminary hearing, again claiming that the prosecutor failed to comply with Brady's discovery obligations and that the trial court erroneously denied her previous Pitchess and discovery motions. The court later denied the motion.
On July 30, 3018, defendant filed another motion to suppress the victim's statements to law enforcement and emergency personnel in Butte County, asserting law enforcement unlawfully tortured and coerced him into implicating her in the crime. The court considered the motion and denied it.
Also on July 30, 2018, defendant filed a motion to bifurcate the jury trial, arguing that her prior conviction in Butte County should not be admitted during the Colusa County trial. Because the information did not allege a prior conviction, the court found the motion moot.
On August 3, 2018, defendant filed an Evidence Code section 402 motion to suppress the victim's statements in Butte County as well as the facts underlying the Butte County conviction. That same day, defendant also filed a motion to dismiss for due process violations, arguing, among other things, that the delay in prosecution prejudiced her, and that her probable cause hearing was not held within 48 hours of her arrest. The People opposed, arguing they had met all statutory time obligations and that the trial had not been unreasonably delayed.
On August 3, 2018, defendant also filed a motion for acquittal under section 1118.1. Although trial had not yet commenced, she argued the judge must instruct the jury to acquit. The People opposed, arguing the motion was premature. Defendant later renewed her motion at the close of the People's case-in-chief. The court denied the motion.
The court did not individually address defendant's additional motions after finding that the issues they raised had previously been addressed or were without merit.
Trial
Trial began on August 7, 2018. Defendant continued to represent herself. During her opening statement, defendant asserted that the evidence would show another man, with whom she intended to have a sexual encounter that day at the motel, stabbed the victim through the bathroom door.
Defendant and the victim practiced a "swinger" lifestyle, in which they both consented to having extramarital affairs.
The Colusa Motel manager, the victim, Officer Lorman, the emergency room physician who treated the victim, as well as the nurse who wheeled him out of the hospital upon discharge testified to the above facts.
Defendant called City of Colusa Chief of Police Joshua Fitch, who testified that he had looked defendant and the victim up following a complaint the city had received from them regarding an incident at a state park. At the scene of the stabbing, body camera video showed the chief commenting that they (defendant & the victim) were a "pain in the ass . . . ." While he acknowledged that securing a crime scene and gathering evidence were police functions, he said that the decision of whether to take blood samples from a crime scene depended on the circumstances.
Defendant also called the victim as a witness for the defense. He denied ever telling the nurse that defendant had stabbed him, and he said that he never told police she had stabbed him. Defendant did not testify.
During closing, the prosecutor argued that the evidence showed defendant called 911 to report that she intended to stab the victim, that she had a knife on her when Officer Lorman first responded to the 911 call, that she was the only one in the motel room when the victim went into the bathroom, and that the knife she had on her was used to repeatedly stab through the bathroom door, slicing the victim's arm during the melee. Counsel emphasized that even though the victim did not identify his attacker to police, he reported to a doctor and a nurse that defendant had stabbed him.
In closing argument, defendant asserted that the blood in the motel room that the police failed to collect would have shown that a third person stabbed the victim through the bathroom door.
After deliberating for approximately 45 minutes, the jury found defendant guilty of all counts in the Colusa County case, and found the deadly weapon and great bodily injury allegations true. Following the jury's verdicts, defendant requested that her standby counsel, attorney David Nelson, represent her at sentencing. The court granted defendant's request and appointed Nelson as her attorney. Defendant waived time for sentencing to September 10, 2018.
Posttrial Motions
On August 27, 2018, defendant filed a Marsden motion to relieve attorney David Nelson as her counsel because he refused to file various motions that she requested, including a premature notice of appeal (since defendant had not yet been sentenced); she requested to represent herself again. On the date set for sentencing, the court granted defendant's request to represent herself, and relieved Nelson as counsel. Defendant then agreed to waive time for sentencing so she could file a motion for new trial. Sentencing was tentatively reset for October 15, 2018, and later reset for October 22, 2018.
In September 2018, defendant filed an opposition to the probation officer's presentence report, and a motion to correct the probation report. She also filed motions alleging inaccuracies in the transcripts and requesting that they not be given to the jury, to set aside the guilty verdicts and dismiss all charges against her under section 1385, and to obtain juror questionnaires.
In October 2018, defendant filed motions requesting the low term and concurrent sentences. She also filed a statement in mitigation, which included several affidavits from the victim.
The prosecution filed a "Omnibus Opposition" to defendant's numerous posttrial motions. The People argued that the motions were baseless and frivolous, and requested that the court deny the motions.
On October 17, 2018, defendant filed a motion for new trial based on alleged judicial and prosecutorial misconduct and insufficient evidence to support the verdicts. That same day, defendant filed a motion to correct the opening statement transcript, claiming the transcript was inaccurate in several respects.
Sentencing
The sentencing hearing occurred on October 22, 2018. At the hearing, the court addressed defendant's posttrial motions, denying most of them.
The trial court imposed a new aggregate sentence in both the Colusa County case and the Butte County case with count II of the Colusa County case (the corporal injury conviction) serving as the principal term. The court imposed the upper term of four years for the corporal injury offense (§ 273.5, subd. (a); count II), plus a consecutive three-year low term for the great bodily injury enhancement (§ 12022.7, subd. (e)), plus a consecutive one-year term for the personal use of a deadly weapon enhancement (§ 12022, subd. (b)(1)). The court imposed a consecutive one-third the midterm of eight months for the vandalism offense (§ 594, subd. (b)(1)), and imposed and stayed (§ 654) a one-year sentence (one-third the midterm) on the assault offense (§ 245, subd. (a)(1); count I).
Although the court orally imposed and stayed a one-third the midterm sentence for the assault offense, the abstract of judgment reflects imposition of an upper term, stayed, for that offense. This discrepancy may have occurred because while giving the parties his tentative sentence before allowing them to argue, the court stated that it intended to impose the upper term on both the assault and corporal injury counts. When actually sentencing defendant, however, the court imposed one-third the midterm on the assault offense in count one and then stayed the sentence under section 654.
In the Butte County case, the court imposed a consecutive one-year term (one-third the midterm) for the corporal injury on a spouse offense (§ 273.5), plus one year (one-third the midterm) for the great bodily injury enhancement (§ 12022.7, subd. (a)), plus four months (one-third the midterm) for using a deadly weapon (§ 12022, subd. (b)(1)), and two years for committing the offense while released on her own recognizance in the Colusa County case (§ 12022.1). The court imposed and stayed (§ 654) a one-year term (one-third the midterm) for the assault offense (§ 245, subd. (a)).
Defendant's total aggregate sentence was 13 years in state prison. For both cases, the court awarded defendant credits and imposed various fees, fines, and assessments. Defendant generally objected to the financial obligations imposed, but did not specify a basis for her objection. Defendant timely appealed.
DISCUSSION
1.0 Speedy Trial
Defendant contends her constitutional and statutory rights to a speedy trial were violated by failing to promptly take her before a magistrate and to try her within statutorily prescribed time periods. We disagree.
1.1 Right to be Taken Before a Magistrate Without Unnecessary Delay
Defendant first argues the trial court erred in denying her motions to dismiss under sections 825 and 859 for failure to take her before a magistrate for a probable cause hearing within 48 hours of her arrest.
1.1.1 Defendant's Arrest, Release, and Arraignment
Defendant was arrested by Officer Lorman on February 2, 2016, around 7:20 p.m. Immediately following her arrest, defendant was transported to the hospital to be medically cleared. Once cleared, she was booked into the Colusa County jail. That same evening, Lorman wrote his police report detailing the arrest and requesting that defendant be charged with assault with a deadly weapon (§ 245, subd. (a)(1)), corporal injury to a spouse (§ 273.5, subd. (a)), and vandalism (§ 594, subd. (b)(1)). He also executed a "Statement of Probable Cause for Arrests Made Without a Warrant and Arrestee is Booked into Jail," which describes the factual basis supporting probable cause for her arrest.
Defendant was released on her own recognizance on February 5, 2016, and promised to appear on March 1. On February 26, she was charged by complaint, and was arraigned on March 1 -- the date she promised to appear. At the arraignment, the court appointed a public defender to represent her.
After the court relieved the public defender and permitted defendant to represent herself, defendant filed several motions to dismiss the action based on the failure to take her before a magistrate for a probable cause hearing within 48 hours of her arrest under sections 825 and 849. The court denied the motions, finding that any purported failure to arraign defendant within 48 hours of her arrest when she had been released from custody was not cause for dismissal given the absence of prejudice.
1.1.2 Analysis
"[T]he Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest." (Gerstein v. Pugh (1975) 420 U.S. 103, 114 [43 L.Ed.2d 54, 65].) The standard is the same as for arrest -- probable cause to believe the suspect has committed a crime -- and can be determined reliably by a magistrate without an adversary hearing. (Id. at p. 120.) In accordance with these constitutional principles, with certain exceptions, a defendant must be taken before a magistrate within 48 hours of his or her arrest for a probable cause determination. (§§ 825, 849; County of Riverside v. McLaughlin (1991) 500 U.S. 44, 56-57 [114 L.Ed.2d 49, 63].)
As relevant here, section 825, subdivision (a)(1) provides: "Except as provided in paragraph (2), the defendant shall in all cases be taken before the magistrate without unnecessary delay, and, in any event, within 48 hours after his or her arrest, excluding Sundays and holidays." Subdivision (a)(2), in turn, states in relevant part: "When the 48 hours prescribed by paragraph (1) expire at a time when the court in which the magistrate is sitting is not in session, that time shall be extended to include the duration of the next court session on the judicial day immediately following."
Under section 849, "[w]hen an arrest is made without a warrant by a peace officer or private person, the person arrested, if not otherwise released, shall, without unnecessary delay, be taken before the nearest or most accessible magistrate in the county in which the offense is triable, and a complaint stating the charge against the arrested person shall be laid before the magistrate." (§ 849, subd. (a).)
By their plain language, neither section 825 nor section 849 authorizes dismissal for failure to comply with their "48-hour" or "unnecessary delay" provisions. (§§ 825, 849; People v. Valenzuela (1978) 86 Cal.App.3d 427, 430.) As the court in Valenzuela noted, statutes on the subject of dismissal, including sections 1381, 1381.5, 1382, and 1389, "require dismissal for certain delays after the arraignment or the commencement of the proceeding, but do not cover delay prior to arraignment or the commencement of the proceeding." (Valenzuela, at p. 430.) Thus, when a defendant's right to be taken before a magistrate within the time specified by law is violated, the law does not require a reversal of a conviction unless she shows that through such wrongful conduct she was deprived of a fair trial or otherwise suffered prejudice as a result of the delay. (Id. at p. 431; People v. Ruiz (1961) 196 Cal.App.2d 695, 703 [in the absence of a showing of a prejudicial effect arising from a delay in taking a defendant before a magistrate, the delay does not constitute a sound ground of attack upon the judgment of conviction].)
In this case, the trial court properly denied defendant's motion to dismiss because defendant failed to establish any prejudice from the delay. Defendant was arrested around 7:30 p.m. on February 2, 2016, after court business hours. While Officer Lorman prepared a statement of probable cause for the arrest that same day, nothing in the record shows defendant was taken before a magistrate for a probable cause determination within 48 hours of her arrest. Instead, she was released from custody on February 5 with a promise to appear on March 1. A complaint was filed against her on February 26 and she was arraigned four days later on March 1.
February had 29 days in 2016 because it was a leap year. (Evid. Code, §§ 452, subd. (h) [court may take judicial notice of facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy], 459, subd. (a) [reviewing court may take judicial notice of any matter specified in § 452].)
Nothing in the record suggests defendant confessed while held in jail, or that she was otherwise prejudiced from the delay in holding a probable cause hearing. Once the complaint was filed, she was promptly arraigned and advised of her rights, and was appointed counsel to protect her interests. She was held to answer after a preliminary hearing in which the magistrate found probable cause to believe she had committed the alleged crimes. Under these circumstances, we conclude that even if defendant's right to be promptly taken before a magistrate following her arrest was violated, she did not suffer any prejudice from the violation and the trial court properly denied her motion to dismiss on that basis.
1.2. Unreasonable Delay in Prosecution
Defendant contends the trial court erred in denying her motion to dismiss for failure to timely try the matter. She cites both section 1382 and 1381 to support her position.
1.2.1 Trial Proceedings
Defendant pleaded not guilty to the first amended complaint without a time waiver on March 23, 2016, and a preliminary hearing was set within 10 court days on April 6. On the date set for the preliminary hearing, defense counsel was relieved due to a conflict and defendant began representing herself. She requested a continuance and personally waived time for the preliminary hearing. At the entry of plea and arraignment on the information in July 2016, defendant personally entered a general time waiver, waiving her right to be tried within 60 days.
At a trial confirmation hearing on November 2, 2016, defendant requested a trial continuance in order to conduct further investigations. At the hearing, the trial court confirmed with defendant that she had previously entered a general time waiver and asked if she wanted to continue to waive time. Defendant responded that she did. Time continued to be waived, and trial was then reset for February 22, 2017, with a trial readiness conference on February 1.
The following month, in December 2016, defendant was arrested and charged with stabbing her husband in Butte County. Based on her Butte County arrest, in January 2017, the Colusa County court revoked her own recognizance release and set bail at $500,000.
Defendant appeared at the trial readiness conference in Colusa County on February 1, 2017, and a further trial confirmation hearing was set for February 9. She was returned to Butte County for her preliminary hearing there on February 8. Although the Colusa County court entered an order for Butte County to produce defendant for her continued trial confirmation hearing, Butte County had declared a doubt as to defendant's competency to stand trial and suspended criminal proceedings under section 1368; Butte County thus did not produce defendant back to Colusa County. The Colusa County court issued a bench warrant and vacated the February 22 trial date.
In March and April 2017, defendant mailed letters to the court purporting to withdraw her time waiver pursuant to section 1382. The court twice responded that defendant was in a failure-to-appear status and that time was not running in her case. She lodged a motion in May 2017 claiming her right to a speedy trial under section 1382 had been violated; the court struck the motion because it considered defendant in a failure-to-appear status.
After criminal proceedings were reinstated in Butte County, defendant was convicted of the Butte County charges in March 2018. The following month she was sentenced to seven years in prison, and began serving her term in April 2018.
On May 7, 2018, defendant served the Colusa County court and the prosecutor with a notice and demand for trial pursuant to section 1381. The court and the prosecutor received the notice on May 10. On May 16, the court approved the prosecutor's temporary custody request to bring defendant to Colusa County on June 26, from the prison in which she was serving her sentence for her Butte County convictions.
On June 26, 2018, defendant appeared in Colusa County and the following day trial was set for August 22, 2018. Later, in opposing defendant's motion to dismiss for delay in prosecution, the district attorney requested that the court advance the trial date to August 7 to comply with the 90-day deadline in section 1381. The court agreed and moved the trial date to August 7; trial commenced on that date.
1.2.2 Analysis
The state and federal Constitutions both guarantee criminal defendants the right to a speedy trial. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People v. Martinez (2000) 22 Cal.4th 750, 754; People v. Jacobs (1972) 27 Cal.App.3d 246, 256.) "The purpose of this guarantee is to protect an accused from having criminal charges pending against [her] for an unwarranted period of time." (Jacobs, at p. 256.) The speedy trial statutes, including sections 1382 and 1381, implement these underlying constitutional guarantees.
Section 1382 provides that a defendant must be brought to trial within 60 days of her arraignment, or of reinstatement of her criminal proceedings after competency has been restored. (§ 1382, subd. (a)(2).) A defendant may enter a general waiver of the 60-day requirement, entitling the superior court "to set or continue a trial date without the sanction of dismissal should the case fail to proceed on the date set for trial." (§ 1382, subd. (a)(2)(A).) Section 1382 provides for the withdrawal of that time waiver, in open court upon proper notice to all parties. The defendant must then be brought to trial within 60 days of the date of that withdrawal. (§ 1382, subd. (a)(2)(A).)
Section 1381 governs the rights of a California prisoner to a speedy trial on another felony charge. (In re Mugica (1968) 69 Cal.2d 516, 523; People v. Jacobs, supra, 27 Cal.App.3d at pp. 256-257.) This section provides that a person serving a term in a state prison against whom another criminal charge was either pending at the time her term began or was filed during the time she was serving it, has a right to have the new charge brought to trial in 90 days after written notice to the district attorney, and, if the action is not brought to trial within the 90-day period, the court, either on its own motion, or on the motion of the district attorney or the defendant, must dismiss the charge. (§ 1381; In re Mugica, at p. 523.)
Section 1381 provides, in pertinent part: "Whenever a defendant has been convicted, in any court of this state, of the commission of a felony . . . and has been sentenced to and has entered upon a term of imprisonment in a state prison . . . and at the time of the entry upon the term of imprisonment . . . there is pending, in any court of this state, any other indictment, information, complaint, or any criminal proceeding wherein the defendant remains to be sentenced, the district attorney of the county in which the matters are pending shall bring the defendant to trial . . . within 90 days after the person shall have delivered to said district attorney written notice of the place of . . . her imprisonment or commitment and . . . her desire to be brought to trial . . . unless a continuance beyond the 90 days is requested or consented to by the person, in open court, and the request or consent entered upon the minutes of the court in which event the 90-day period shall commence to run anew from the date to which the consent or request continued the trial . . . ." If the defendant is not tried within the 90 days, the court shall, on the motion or suggestion of the district attorney or the defendant, or on its own motion, dismiss the action. (Ibid.)
In this case, after examining the record and reviewing the relevant speedy trial provisions, we conclude that neither section 1382 nor section 1381 warranted dismissal of the action against defendant for an unreasonable delay in trial. The record shows defendant entered a general time waiver of the 60-day deadline in section 1382. While it is true that she attempted to withdraw that waiver via letter, she did not comply with the statutory mandate that such withdrawals be made "in open court." (§ 1382, subd. (a)(2)(A), italics added.) Thus, her purported time-waiver withdrawals were ineffectual, and time continued to be waived.
Given defendant's general time waiver, we need not decide whether the trial court erred in deeming defendant to be in failure to appear status based on Butte County's failure to comply with the court's transport order for the continued trial confirmation hearing on February 9, 2017.
Once defendant was sentenced to prison in the Butte County case, and began serving her sentence at a state prison, section 1381 governed her speedy trial rights. (In re Mugica, supra, 69 Cal.2d at p. 523; People v. Jacobs, supra, 27 Cal.App.3d at pp. 256-257.) Pursuant to that provision, she sent a notice and demand for trial on May 7, 2018. Trial was set and commenced within 90 days of the notice, on August 7. Thus, the court complied with section 1381's statutory mandate, and defendant's speedy trial rights were not violated.
In any event, even if we assume defendant's right to a speedy trial was violated, because she has been tried and convicted, and no charges are pending against her, it is too late to relieve her of the delay in bringing her to trial. (People v. Luu (1989) 209 Cal.App.3d 1399, 1404.) "Thus, even where a speedy trial statute specifically provides for dismissal as a remedy, its violation is not reversible error on appeal in the absence of a showing of prejudice." (Ibid.)
Here, defendant makes no attempt to establish prejudice from any purported delay. Nor could she. All of the pertinent witnesses testified at trial, including the victim, the arresting officer, the motel manager, the emergency room physician who treated the victim, and the nurse who escorted the victim from the hospital upon discharge. Pictures of the crime scene and the victim, defendant's 911 call, and police body camera evidence of the motel room were also shown to the jury. Given the above, even assuming an unreasonable delay occurred, defendant suffered no prejudice.
2.0 Alleged Discovery Violations
Defendant contends the court erred by denying her discovery motions before the preliminary hearing and denying her motions for exculpatory blood and DNA evidence that law enforcement failed to preserve from the crime scene. We disagree.
2.1 Additional Background
2.1.1 Pre-preliminary Hearing Discovery Motions
On April 20, 2016, three weeks before the scheduled May 11 preliminary hearing, defendant informed the court that she had not yet received discovery from the prosecutor because she had been told that she had to pay for copies when she went to his office to retrieve it. The prosecutor was ordered to provide the discovery by the end of the day free of charge, and he made arrangements to do so.
Defendant filed her first motion to obtain discovery on May 3, 2016. The motion listed the date of the hearing as May 11, and included a proof of service dated May 2 showing defendant personally served the documents on the prosecution via mail. The court later denied the motion for improper notice and service. The preliminary hearing was then continued to June 8.
On May 23, 2016, defendant filed a second discovery motion with a listed hearing date of June 8. The proof of service shows she personally served the prosecutor by mail on May 20.
On June 8, 2016, the date set for the preliminary hearing, the court considered defendant's second discovery motion. Defendant argued that she still lacked full discovery because she had not received colored photos, police body camera videos, in-car audio or video, and audio or video from the hospital in Colusa where the victim was treated.
After objecting to the improper notice and service of the motion, the prosecutor informed the court that defendant had been provided with discovery, and that his office continued to provide discovery as the prosecution received it. The victim's medical records, for example, had been received that day and were provided to defendant; the prosecutor also provided defendant with discovery from a warrant that had recently been executed.
With respect to the body camera videos, the prosecutor acknowledged those had not yet been provided given concerns that the investigation was ongoing and defendant had a propensity to post confidential or private material online, which could taint the limited jury pool in the small county. Given these concerns, the prosecutor requested a protective order from the court permitting defendant to view the videos at the district attorney's office. The prosecutor further argued that the police body camera videos were duplicative of the police reports, which had already been provided to defendant, and that he did not have any audios or videos from the Colusa Regional Medical Center.
In ruling on the second discovery motion, the court found that it was not properly served or noticed. In any event, the court noted that defendant acknowledged receiving discovery from the prosecutor on April 20, 2016, that she acknowledged receiving additional discovery that day (victim's medical records), and that she was merely speculating that the prosecutor had not fully disclosed discovery. As for the police body camera videos, the court directed the prosecutor to make reasonable accommodations for defendant to view the videos in the district attorney's office, but ordered that defendant was not permitted to make copies of the videos.
Defendant filed a Pitchess motion on May 3, 2016, which attached copies of the Colusa County police reports regarding her arrest. Notably, her declaration to support the Pitchess motion states: "Accompanying this motion is a copy of the police reports setting forth the circumstances of Defendant's investigation, detention, and arrest (Exhibit B). On information and belief I represent these reports to be actual police reports written in this case and subsequently disclosed to the defense by the District Attorney." The italicized language supports the reasonable inference that the prosecutor complied with the court's April 20 order to provide defendant with discovery.
Following denial of the second discovery motion, the court conducted the preliminary hearing. The victim testified that he was at the Colusa Motel with his wife when he was stabbed through the bathroom door; he did not see anyone else in the room that night, but said he did not see who stabbed him. He did not remember being asked if he wanted a protective order from her or telling a nurse that she had stabbed him.
Officer Lorman testified that he initially contacted defendant in room 109 at the Colusa Motel after responding to a 911 call from a woman in room 109 threatening to stab her husband; she had a knife in her waistband. He later returned to the motel for a call about a wounded man; he found the victim bleeding from a stab wound to the arm. He returned to room 109 and found defendant, with no apparent injuries but covered with blood, lying on the bed; the room was damaged. On cross-examination, Lorman admitted that he did not do a DNA test on the blood at the scene, said he did not see any wounds on her before placing her in handcuffs, and admitted that when he arrested her she yelled at him to stop grabbing her buttocks in an aggressive manner; he denied using excessive force. Defendant also questioned him about where the knife was found based on pictures of the crime scene.
Sergeant Tamez testified that he spoke with the victim the day of the stabbing, and the victim told him someone had stabbed him through the bathroom door. Tamez was present when Chief Fitch asked the victim whether he wanted a protective order from defendant, and the victim pointed to his arm and said, "what do you think?" The following day Tamez spoke with a nurse at the hospital who said the victim told her that defendant had stabbed him.
After considering the witnesses' testimony and the evidence presented, the court found probable cause to hold defendant to answer.
2.1.2 Post-preliminary Hearing Discovery Motions and Motions for Exculpatory Evidence
Two months after the preliminary hearing, in August 2016, defendant filed a third discovery motion, which was nearly identical to the previous motions that the court denied. The court denied the third discovery motion, finding the prosecutor had made reasonable accommodations for defendant to view the police body camera videos.
In January 2017, defendant filed an omnibus motion to dismiss for police misconduct, destruction of evidence and failure to preserve exculpatory evidence, arguing the police failed to preserve and test blood samples from the motel room, failed to preserve the damaged motel bathroom door, failed to take fingerprints, failed to document her alleged defensive wounds, and failed to provide her with video evidence of the crime scene. The People opposed the motion asserting that while under certain circumstances law enforcement has a duty to preserve physical evidence, there is no corresponding duty to gather physical evidence that might ultimately be useful to a defendant.
The court denied the motion, finding defendant had failed to show law enforcement or the prosecution had some motive to prejudice defendant in failing to collect various pieces of evidence, the exculpatory value of which was not apparent on its face. At the same hearing, the prosecutor agreed to provide defendant with a duplicate copy of previously disclosed discovery materials after she said Butte County law enforcement had destroyed or taken her copies when they searched her home in relation to the Butte County case.
In June 2018, defendant filed another motion to dismiss based on the failure to disclose or preserve exculpatory evidence under Brady. This time she argued law enforcement failed to preserve blood samples from the scene and failed to test the blood and a ski mask found in the room for DNA. The court denied the motion, finding that while there might have been a failure to preserve some evidence there was no showing that the evidence was exculpatory or that law enforcement intentionally failed to preserve the evidence to prevent defendant from defending herself. The court also noted that law enforcement was not required to collect all possible evidence during its investigation.
In July 2018, defendant filed another Brady motion to dismiss for failure to disclose or preserve exculpatory evidence. The court denied the motion on the same grounds as before.
At the same hearing, defendant said she no longer had all the discovery the prosecutor had disclosed because she "downsized [her] paperwork" when she was sent to prison. At the court's request, the prosecutor agreed to provide defendant with another set of photographs from Colusa County, and the court ordered that defendant be given access to a computer while in jail to allow her to review evidence previously disclosed on computer disks. When the court asked whether that resolved defendant's discovery issues, she responded, "I believe so."
Defendant later filed a nonstatutory motion to dismiss based in part on her claim that the prosecutor failed to comply with his Brady obligations, and that the court had erroneously denied her earlier discovery motions. The court denied the motion.
2.2 General Discovery and Preservation Obligations in a Criminal Trial
Discovery in criminal cases is governed primarily by statutory law. (Schaffer v. Superior Court (2010) 185 Cal.App.4th 1235, 1242.) Section 1054.1 provides that the prosecuting attorney "shall disclose" to the defendant certain materials and information prior to trial. (§ 1054.1.) That information includes, among other things, the names and addresses of intended trial witnesses, statements of all defendants, all relevant real evidence seized or obtained while investigating the charged offenses, any exculpatory evidence, and relevant written or recorded witness statements or reports of the statements of witnesses whom the prosecutor intends to call at trial. (§ 1054.1, subds. (a)-(f).) Section 1054.7 mandates that disclosure be made at least 30 days before trial, unless good cause is shown for denying, restricting, or deferring disclosure. (§ 1054.7.)
Apart from this statutory obligation, due process requires the prosecutor to disclose to the defense any evidence known to the prosecution that is both favorable to the accused and material on the issue of guilt or punishment. (Brady, supra, 373 U.S. 83.) Evidence is "material" under the Brady standard "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." (United States v. Bagley (1985) 473 U.S. 667, 682 [87 L.Ed.2d 481, 494].) The prosecution's disclosure duty under Brady pertains not only to exculpatory evidence but also to impeachment evidence. (Strickler v. Greene (1999) 527 U.S. 263, 280-281 [144 L.Ed.2d 286, 301-302].) The duty exists regardless of whether there has been a request for such evidence. (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 378.)
Due process under the federal and state Constitutions further requires that the prosecution "disclose, prior to the preliminary hearing, evidence in its possession that is both favorable to the defense and material to the probable cause determination to be made at the preliminary hearing." (Bridgeforth v. Superior Court (2013) 214 Cal.App.4th 1074, 1077; see People v. Hull (2019) 31 Cal.App.5th 1003, 1033-1034 [same].) For purposes of pre-preliminary hearing disclosures, "the standard of materiality is whether there is a reasonable probability that disclosure of the exculpatory or impeaching evidence would have altered the magistrate's probable cause determination with respect to any charge or allegation." (Bridgeforth, at p. 1087.) The duty extends "only to matters within the possession or control of the prosecution team before the conclusion of the preliminary hearing." (Ibid.)
In the context of criminal trials, defendants also have a due process right in the preservation of evidence under specified circumstances. (See, e.g., California v. Trombetta (1984) 467 U.S. 479, 488-489 [81 L.Ed.2d 413, 421-422]; Arizona v. Youngblood (1988) 488 U.S. 51, 58 [102 L.Ed.2d 281, 289-290]; United States v. Boyd (3rd Cir. 1992) 961 F.2d 434, 435-437 [destruction of urine sample used in probation violation].) Trombetta recognized in a criminal prosecution: "Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense. To meet this standard of constitutional materiality [citation], evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." (Trombetta, at pp. 488-489, fn. omitted.) In Youngblood, the court recognized that if evidence is merely potentially useful, bad faith destruction must also be established. (Youngblood, at p. 58.) Notably, a pending request for evidence does not eliminate the need to show bad faith destruction of only potentially useful evidence. (Illinois v. Fisher (2004) 540 U.S. 544, 547-549 [157 L.Ed.2d 1060, 1065-1067].)
2.3 Analysis
After examining the record, we conclude the trial court properly denied defendant's pre-preliminary hearing discovery motions for defective notice and service. Rule 4.111(a) of the California Rules of Court, which governs pretrial motions in criminal cases, provides: "Unless otherwise ordered or specifically provided by law, all pretrial motions, accompanied by a memorandum, must be served and filed at least 10 court days . . . before the time appointed for hearing."
Here, defendant filed her first discovery motion on May 3, 2016, for a hearing on May 11. She also personally served the motion by mail, which was improper. (Code Civ. Proc., § 1013a [service by mail must be by a nonparty to the action].) She again personally served her second discovery motion by mail on May 23 for a hearing on June 8. (Code Civ. Proc., §§ 1013a [service by nonparty required], 1005, subd. (b) [if notice is served by mail, the required time period of notice before the hearing shall be increased by five calendar days if the place of mailing and the place of address are within the State of California].) That, too, was improper.
In any event, even if we assume defendant timely filed and served the motions, she has failed to show she was denied material exculpatory evidence that would have altered the magistrate's probable cause determination for any of the charges. (Bridgeforth v. Superior Court, supra, 214 Cal.App.4th at pp. 1077, 1087; People v. Hull, supra, 31 Cal.App.5th at pp. 1033-1034.)
Although she asserts that she was given "[n]o discovery . . . for her preliminary hearing," the record belies her argument. The prosecutor disclosed discovery materials to defendant over a month before the preliminary hearing. In addition to these initial disclosures, the prosecutor continued to disclose discovery whenever he obtained it, such as the victim's medical records at the preliminary hearing and discovery from execution of a recent warrant (and even provided defendant with duplicate copies of discovery on several occasions).
While it is true that defendant was not provided with copies of the police body camera videos before the preliminary hearing given reasonable concerns of improper dissemination of the discovery during the ongoing investigation, she fails to show that the body camera video contained material exculpatory evidence. At most the video would have shown the motel room and her arrest, but she already had the police reports which documented the incident and photos of the crime scene. The video would not have shown when Officer Lorman first responded to the motel as he did not have his body camera on at that time. Defendant, moreover, was alone in the room when she was arrested, so body camera video would not have shown the existence of the alleged third party perpetrator that defendant later claimed stabbed the victim.
Not having the video at the time of the preliminary hearing did not deprive defendant of due process as it is not reasonably probable that the evidence would have persuaded the magistrate that there was not probable cause to hold defendant to answer, especially given the testimony of the witnesses at the preliminary hearing that overwhelmingly implicated defendant as the perpetrator. Any error in denying the discovery motions as not timely or properly served, or denying her the police body camera videos before the preliminary hearing, was therefore harmless.
We similarly conclude that defendant has failed to show the prosecutor did not comply with his disclosure obligations under Brady, or that law enforcement acted in bad faith by failing to preserve and test samples of the blood found at the crime scene. The trial court thus properly denied defendant's many discovery motions based on those arguments.
As Officer Lorman and Chief Fitch explained at trial, blood samples are sometimes but not always collected from crime scenes. Whether such evidence is collected depends on the circumstances. In this case, it was not collected because the victim, who was bleeding, was known, defendant appeared to be the only other person in the room with him at the time of the stabbing, defendant had earlier called police to report that she was about to stab her husband, and neither the victim nor defendant ever identified what other person was allegedly involved. Because Lorman did not see any visual injuries on her that would have caused the blood, defendant did not respond that she was injured, and the victim did have such an injury, the officer concluded that testing the blood for DNA was not necessary given the circumstances. That conclusion was reasonable, and, at the very least, does not show that the officers acted in bad faith by failing to preserve and test the blood.
We reject defendant's assertion that Chief Fitch's statements at the scene that he had done "some research" on previous calls about defendant and her husband, and acknowledged that her husband had taken a case "to the mat," somehow showed bad faith in failing to preserve or test the blood evidence given the circumstances known to the responding officers.
There was also no credible evidence that another person, besides the victim and defendant, was in the room at the time of the stabbing. Defendant did not testify, and any of her questions or statements during trial that implied a third person was present were not evidence. (People v. Arnold (1926) 199 Cal. 471, 486 [opening "statement is not evidence, and no jury would accept it as facts proved"]; CALCRIM No. 104 ["Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys will discuss the case, but their remarks are not evidence. Their questions are not evidence. . . . Do not assume that something is true just because one of the attorneys asks a question that suggests it is true."].) Given the above, it is not reasonably probable that testing the blood would have revealed the presence of a third person thereby resulting in a different outcome at trial. The evidence, then, was not "material" within the meaning of Brady. (United States v. Bagley, supra, 473 U.S. at p. 682.)
The trial court properly found no Brady violation, and no bad faith failure to preserve evidence. Defendant's discovery motions were correctly denied. 3.0 Pitchess Motion
Defendant contends the trial court prejudicially erred in denying her Pitchess motion. The motion sought to compel discovery of information from the personnel records of Colusa County Sheriff's Deputy Dean Pearson and City of Colusa Police Officer Larry Lorman, who she claimed had used excessive force and sexually assaulted her during her arrest, and had fabricated their police reports by stating that she had no injuries when "in fact there were many caused by said officers using excessive force."
Defendant argues the court abused its discretion in finding that she failed to establish good cause for in camera review of the records after concluding that she had failed to present any plausible scenario showing the officers' alleged actions bore in any way on a defense to the charges. According to defendant, good cause existed because the records were relevant to her defense that the officers violently sexually assaulted her during her arrest and fabricated their police reports by failing to document her alleged wounds. We disagree.
A criminal defendant is entitled to discovery of certain information in the personnel records of a police officer accused of misconduct upon a showing of good cause. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016 (Warrick); Pitchess, supra, 11 Cal.3d at pp. 536-538.) By requiring a showing of good cause, the Pitchess procedure balances a defendant's right to discovery of all information pertinent to her defense and a peace officer's right to privacy. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81-84.)
"Good cause for discovery exists when the defendant shows both ' "materiality" to the subject matter of the pending litigation and a "reasonable belief" that the agency has the type of information sought.' [Citation.] A showing of good cause is measured by 'relatively relaxed standards' that serve to 'insure the production' for trial court review of 'all potentially relevant documents.' " (Warrick, supra, 35 Cal.4th at p. 1016.) This two-part showing is a "relatively low threshold for discovery." (City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at p. 83.) Once the trial court determines good cause has been shown, it must conduct an in camera review of the records and disclose only those records and information that are relevant and not subject to exclusion from disclosure. (Evid. Code, § 1045, subds. (a) & (b).)
"To show good cause[,] . . . defense counsel's declaration in support of a Pitchess motion must propose a defense or defenses to the pending charges. The declaration must articulate how the discovery sought may lead to relevant evidence or may itself be admissible direct or impeachment evidence [citations] that would support those proposed defenses. These requirements ensure that only information 'potentially relevant' to the defense need be brought by the custodian of the officer's records to the court for its examination in chambers." (Warrick, supra, 35 Cal.4th at p. 1024; see People v. Salcido (2008) 44 Cal.4th 93, 146 [a "logical connection" must be established between the charges and the proposed defense to establish good cause for the granting of a Pitchess motion].) The trial court determines "whether defendant's averments, '[v]iewed in conjunction with the police reports' and any other documents, suffice to 'establish a plausible factual foundation' for the alleged officer misconduct and to 'articulate a valid theory as to how the information sought might be admissible' at trial." (Warrick, at p. 1025.) The allegations in the defense declaration must be factually specific and tailored to support the claim of officer misconduct. (Id. at p. 1027.)
The defense declaration need only describe a " 'plausible factual foundation' " for the claim of "specific police misconduct that is both internally consistent and supports the defense proposed to the charges." (Warrick, supra, 35 Cal.4th at pp. 1025-1026.) However, "Warrick did not redefine the word 'plausible' as synonymous with 'possible,' and does not require an in camera review based on a showing that is merely imaginable or conceivable and, therefore, not patently impossible. Warrick permits courts to apply common sense in determining what is plausible, and to make determinations based on a reasonable and realistic assessment of the facts and allegations." (People v. Thompson (2006) 141 Cal.App.4th 1312, 1318-1319.)
We review the trial court's denial of discovery of information from police officer personnel records for an abuse of discretion. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 992.) Under that standard, judicial discretion is abused only if the court exceeds the bounds of reason under all of the circumstances by making an arbitrary or capricious determination. (People v. Giminez (1975) 14 Cal.3d 68, 72.)
Here, the defense theory was that an unidentified man, with whom defendant contemplated having sex at the motel room while practicing her swinger lifestyle, attacked her and then stabbed the victim through the bathroom door. She sought the officers' personnel records, however, to support her claim that the officers violently sexually assaulted her while arresting her -- conduct which allegedly occurred after the knife attack on the victim. Her claim that the officers falsified their reports related not to the assault on the victim, the charges for which defendant was tried, but rather, for the alleged sexual assault by the responding officers.
Given her proposed defense to the charges, we conclude the trial court did not err in denying defendant's Pitchess motion. While defendant was not required to present a factual scenario that was reasonably likely to have occurred or was credible or even believable (Warrick, supra, 35 Cal.4th at pp. 1025-1026), she was required to give some plausible alternative factual account that, if true, showed that the police report identifying her as the perpetrator of the attack on the victim was inaccurate. She did not articulate a specific and tailored factual scenario explaining how the version of events set forth in the police report was inaccurate, however. She did not claim that the report's statement that she did not appear to be injured when they entered the motel room was inaccurate; instead, she argued that she was actually injured by the officers during the arrest and not the alleged unidentified third party perpetrator. But any injuries she suffered during the arrest did nothing to establish a plausible defense to the charges. On this record, we cannot conclude that the trial court abused its discretion in denying defendant's Pitchess motion.
4.0 New Trial Motion
Defendant contends the trial court erred in denying her motion for a new trial based on alleged judicial and prosecutorial misconduct. She claims the court committed Griffin error during closing arguments, that it prejudiced her defense by restricting her from eliciting why the police failed to collect DNA evidence from the scene, and it scuttled her attempt to impeach Officer Lorman during his testimony. Defendant further argues the prosecutor improperly argued facts not in evidence during closing, introduced a new legal theory of culpability for the first time during rebuttal, offered unsworn testimony during closing, urged jurors to convict to protect the community, and implied that she fabricated her third party defense. We conclude the trial court did not err in denying her new trial motion.
Griffin v. California (1965) 380 U.S. 609 (Griffin).
4.1 New Trial Motions Under Section 1181
Under section 1181, a criminal defendant may move for a new trial on certain grounds, including judicial errors of law or prosecutorial misconduct during trial. (§ 1181, case 5.) We independently review a trial court order denying a motion for new trial to determine whether a miscarriage of justice occurred, meaning whether any errors denied a fair trial to the party against whom the judgment was entered. (People v. Ault (2004) 33 Cal.4th 1250, 1260-1262.)
4.2 Analysis
4.2.1 Alleged Judicial Misconduct
We reject defendant's claim that the trial court committed Griffin error when it cautioned her during closing argument with the following: "You are turning your argument into testimony. You chose not to testify. Please simply say to the jury you believe that the evidence shows whatever you believe it to show."
The Supreme Court in Griffin, supra, 380 U.S. at page 615, held that the Fifth Amendment to the United States Constitution forbids "either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." (Fn. omitted.) Here, the trial court did not instruct the jury that defendant's decision not to testify evidenced her guilt. Rather, the court properly noted that closing argument was defendant's opportunity to comment on the evidence as presented and was not appropriate for presenting new testimonial evidence to the jury as defendant was attempting to do. (People v. Medina (1995) 11 Cal.4th 694, 755 [Griffin rule prohibiting comment on defendant's silence does not extend to comments on the state of the evidence].)
The court, moreover, instructed the jury based on CALCRIM No. 355 that defendant had an absolute constitutional right not to testify. It further instructed that the jury could not consider, for any reason at all, the fact that defendant did not testify, that it could not discuss the fact that defendant did not testify during deliberations, and that it could not let that fact influence the jury's decision in any way. Griffin error did not occur.
Defendant's argument that the court improperly restricted her from eliciting a motive for why the police failed to collect DNA evidence from the scene is equally unavailing. While she cites to various portions of the record where at times the court sustained objections to or otherwise corrected the form of her questions, she fails to explain in any meaningful way how the court's evidentiary rulings were improper.
In any event, the record shows defendant questioned both Officer Lorman and Chief Fitch about the reasons why blood was not collected. In fact, the court overruled the prosecutor's objection when defendant asked Officer Lorman why - if the victim did not tell him that defendant had stabbed him, and she said that someone else was involved - he did not go back and collect the blood from the scene. Officer Lorman was then permitted to explain his reasons for not collecting any of the blood. During cross-examination, Chief Fitch admitted that he said he had researched defendant and the victim, and that they were a "pain in the ass." Defendant used this testimony to imply in argument that law enforcement's dislike of defendant and the victim motivated them not to collect the blood.
We similarly reject defendant's claim that the court improperly denied her attempt to impeach Officer Lorman. The court properly sustained a relevance objection to defendant's argumentative question about whether Officer Lorman had ever had any complaints filed against him for "being a generally incompetent police officer," (People v. Chatman (2006) 38 Cal.4th 344, 384 ["[a]n argumentative question is a speech to the jury masquerading as a question. The questioner is not seeking to elicit relevant testimony."]) and whether he "often writes false reports?" (Ibid. ["An argumentative question that essentially talks past the witness, and makes an argument to the jury, is improper because it does not seek to elicit relevant, competent testimony, or often any testimony at all."])
When defendant questioned why Officer Lorman had written in some unidentified report (which she did not present) that the victim had told him defendant had stabbed him, even though Lorman testified to the contrary, Lorman testified that he had never written that in his report. From subsequent questions, it appears defendant was referring to a probable cause statement supporting an emergency protective order issued to protect the victim from defendant, and Officer Lorman testified that he did not write the probable cause statement for the protective order. Thus, defendant's attempt to impeach Officer Lorman failed not because the trial court improperly restricted her questioning, but because she was mistaken as to who wrote the protective order.
4.2.2 Alleged Prosecutorial Misconduct
" 'A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process.' " (People v. Tafoya (2007) 42 Cal.4th 147, 176 (Tafoya).) " 'Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under [California] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.' " (Ibid.)
"Generally, a claim of prosecutorial misconduct is not reviewable on appeal unless the defendant makes a timely objection and asks the trial court to admonish the jury to disregard the prosecutor's improper remarks." (Tafoya, supra, 42 Cal.4th at p. 176.) Where the defendant failed to object, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct. (Ibid.)
Defendant contends that the prosecutor committed misconduct during closing by arguing facts not in evidence and essentially offering unsworn testimony not subject to cross-examination, but she includes only a bare citation to a single page of transcript without specifying the supposedly impermissible argument. To the extent defendant complains that the prosecutor said, "He [(the victim)] was in the room. His blood is all over the room. He was out the door too. He may have been out the window at some point during the day. They were arguing for a long time," she did not object to the statements and has forfeited her challenges. (People v. Tafoya, supra, 42 Cal.4th at p. 176.)
In any event, we understand the prosecutor's statements that the victim "was in the room," that "[h]is blood was all over the room," and that he was "out the door" to be nothing more than reasonable inferences drawn from the evidence showing that the victim went into the motel room, that he was stabbed in the motel bathroom, and that he was bleeding from his wound. From such evidence, it could be inferred that at some point, the victim may have bled in the motel room or near the door even though he denied it. (Tafoya, supra, 42 Cal.4th at p. 181 [counsel is accorded great latitude at argument to urge whatever conclusions counsel believes can properly be drawn from the evidence].) Whether the inferences drawn by the prosecutor were reasonable was for the jury to decide. (Ibid.)
The urged inferences fit squarely within the confines of the prosecutor's overarching argument explaining why the victim told police he did not know who stabbed him even though the evidence and reasonable inferences from the evidence were contrary to that statement. No misconduct occurred.
We likewise reject defendant's contention that the prosecutor introduced "a theory of legal culpability for the first time in closing argument" or "sandbagged" her during rebuttal. On the record pages she cites to support her argument (without providing any reasoned analysis), it does not appear she ever objected on that basis, and has therefore forfeited the challenges. (Tafoya, supra, 42 Cal.4th at p. 176.) Regardless, the transcript reveals the prosecutor legitimately questioned differences between defendant's response when police arrived and her claim that someone else was responsible for stabbing the victim, drew reasonable inferences to show the blood on the wall may have been the victim's, and questioned how someone else's blood might have gotten in the room as defendant claimed, given that the knife used to cut the victim was found in the bathroom. None of these comments introduced a new theory of liability or sandbagged her.
At one point during the referenced pages, defendant did object to the prosecutor's argument that the destroyed motel room indicated that a rage-filled argument had occurred, claiming the argument was improper because no one had testified about rage. The court implicitly denied the objection after noting that the prosecutor's statement was a fair comment on the evidence. The trial court was correct.
Defendant further complains that the prosecutor implied she fabricated her defense. Yet, given the wide latitude prosecutors have for commenting on the evidence, implying that defendant's version of events was inaccurate or unreasonable was not misconduct. The unobjected-to comments were all based on the evidence and reasonable inferences from the evidence and came within the broad scope of permissible argument. (People v. Chatman, supra, 38 Cal.4th at p. 387 [prosecutor's comments at various times during closing that the defendant had lied constituted fair comment on the evidence].)
Defendant never objected to the prosecutor's comment that people who stab others are dangerous and should be punished even if the victim, for various reasons, does not want to cooperate with the prosecution. Any contention that the prosecutor's comment improperly urged jurors to convict her to protect the community is therefore forfeited. (Tafoya, supra, 42 Cal.4th at p. 176.)
5.0 Sufficiency of Evidence
Defendant contends insufficient evidence supports her convictions for assault with a deadly weapon and corporal injury on a spouse, and that insufficient evidence shows she used a deadly weapon or inflicted great bodily injury during the offenses. In her view, the trial court should have granted a new trial motion because the jury was mistaken about the facts. We disagree with her view of the evidence, and conclude that substantial evidence supports her convictions and the enhancements.
When determining whether there is substantial evidence to support a conviction, we view the record in the light most favorable to the People, resolving all conflicts in the evidence and drawing all reasonable inferences to support the conviction. (People v. Campbell (1994) 25 Cal.App.4th 402, 408; People v. Small (1988) 205 Cal.App.3d 319, 325 ["The substantial evidence rule is generous to the respondent on appeal . . ."].) " 'We may conclude that there is no substantial evidence in support of conviction only if it can be said that on the evidence presented no reasonable fact finder could find the defendant guilty on the theory presented.' " (Campbell, at p. 408.)
To prove defendant was guilty of assault with a deadly weapon, the prosecutor had to show beyond a reasonable doubt that defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person, that the force used was likely to produce great bodily injury, that she did the act willfully, that when she acted she was aware of facts that would lead a reasonable person to realize that her act by its nature would directly and probably result in the application of force to someone, that she had the present ability to apply force with a deadly weapon to a person, and that she did not act in self-defense or defense of another. (§ 245, subd. (a)(1); CALCRIM No. 875.) A deadly weapon other than a firearm included "any object, instrument, or weapon . . . that is inherently deadly or one . . . that is used in such a way that it is capable of causing and likely to cause death or great bodily injury." (CALCRIM No. 875.) And, great bodily injury meant a "significant or substantial physical injury"; one that was greater than minor or moderate harm. (CALCRIM No. 875.)
To prove defendant was guilty of the corporal injury offense, the prosecutor had to show beyond a reasonable doubt that defendant willfully and unlawfully inflicted a physical injury on her spouse resulting in a traumatic condition and that she did not act in lawful self-defense. (§ 273.5, subd. (a); CALCRIM No. 840.)
To prove defendant guilty of the great bodily injury enhancement, the prosecutor had to show that defendant applied substantial force to the victim that resulted in a significant or substantial physical injury and one that was greater than minor or moderate harm. (§ 12022.7; CALCRIM No. 3160.) For the personal use of a deadly weapon enhancement, the prosecutor had to prove that defendant intentionally displayed the weapon in a menacing manner or hit someone with the weapon. (§ 12022, subd. (b)(1); CALCRIM No. 3145.)
Viewing the evidence in the light most favorable to herself, and contrary to the governing standard of review, defendant argues insufficient evidence supports the jury's guilty verdicts because the victim told responding officers that he did not see who stabbed him, said he escaped through the bathroom window and did not return to the motel room, and denied that the blood in the room was his. She also notes that the victim denied telling the nurse that defendant stabbed him, that Officer Lorman said the blood in the motel room could have been someone else's, and that the motel manager testified a woman banged on her office door for help.
When viewed properly--in the light most favorable to the judgment - ample evidence and reasonable inferences from such evidence support the convictions and the enhancements. The jury heard a 911 call made by defendant in which she identifies herself as "Storm," states that she is in room 109 at the Colusa Motel, and says that she was about to stab her husband because he would not stop knocking on the window to be let into the room. When Officer Lorman responded to the call, he observed defendant in room 109 at the Colusa Motel and noticed that she had a hunting knife with a fixed blade in a sheath in her waistband. When Officer Lorman returned the second time to the Colusa Motel in response to a report of a wounded man, he located the victim who had been stabbed in the arm and was bleeding. The victim initially said that Storm had stabbed him, and he later testified that only he and defendant were in the motel room immediately preceding the stabbing.
After entering the motel room, Officer Lorman observed defendant feigning to be asleep on the bed covered in blood; the room was destroyed, and blood was everywhere. The knife he had seen her with earlier was no longer in the sheath on her belt. The knife blade was later located in the bathroom, and the handle of the knife was in the motel room; the broken knife matched defendant's knife sheath.
Both the emergency room physician who treated the victim and the nurse who escorted him from the hospital upon discharge testified that he said his wife had stabbed him.
From this evidence, the jury could reasonably conclude that defendant was known by the nickname Storm, that defendant called 911 threatening to stab her husband, that she had a hunting knife on her capable of making the type of injury the husband suffered, and that shortly after the 911 call, the husband told Officer Lorman that someone named Storm stabbed him through the bathroom door. The jury could also reasonably conclude that no one else was in the room besides defendant and the husband at the time of the stabbing, and defendant used her own knife to stab her husband through the bathroom door during the attack.
While the victim later denied knowing who stabbed him and said he did not tell the nurse that defendant had stabbed him, the jury was free to disregard his denials as not credible. (People v. Jones (1990) 51 Cal.3d 294, 314 [it is the exclusive province of the jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends].) As the jury was properly instructed, it alone judged the credibility or believability of witnesses (CALCRIM No. 226) and was tasked with resolving conflicts in the evidence by deciding which evidence to believe (CALCRIM No. 302). That the jury rejected the victim's denials and resolved the conflicting evidence against defendant does not mean insufficient evidence supports the guilty verdicts or the true findings on the enhancement allegations, or that the trial court erred in denying her new trial motion based on insufficient evidence.
6.0 Admission of Butte County Domestic Violence Evidence
Defendant contends reversal is required because the trial court erroneously admitted evidence of the Butte County incident of domestic violence where she stabbed the victim in the chest with an ice pick, which occurred while she was released on her own recognizance in the Colusa County case. She argues the trial court should have excluded the evidence under Evidence Code section 1109 because the prosecution failed to timely disclose it.
6.1 Additional Background
Over a month before trial, on July 3, 2018, defendant moved to suppress the victim's "involuntary statements" in Butte County, attaching as exhibits an excerpt from the police report of Butte County Sheriff's Deputy Evans, as well as the victim's medical records regarding his treatment in Butte County after defendant stabbed him with an ice pick.
Three days later, on July 6 (which was 31 days before trial commenced), the prosecutor filed a motion seeking to introduce evidence of the Butte County domestic violence incident under Evidence Code section 1109 to show defendant's propensity to commit the current offenses involving domestic violence. He argued that section 1054.7, which required the information be disclosed 30 days before trial, was satisfied because defendant already had the information underlying the Butte County case given that she was tried and convicted there in March 2018. In opposing the motion on July 17, defendant attached excerpts of the victim's testimony in Butte County as well as his interview with Butte County Sheriff's Sergeant Meyer after the stabbing.
While arguing at the trial readiness conference on July 25 that the court should suppress the victim's Butte County statements, defendant referred to testimony, video evidence, and transcripts from the Butte County case which she apparently had in her possession. Later in the hearing, defendant acknowledged that she had excerpts of preliminary hearing and trial transcripts from Butte County, and the prosecutor represented that defendant had been given the record of conviction from the Butte County case, and said he believed Butte County Sheriff's Deputy Evans's report had already been disclosed. Defendant did not object to those representations.
At the hearing, defendant also claimed that she did not have all of the discovery related to both cases - not because the prosecutor had failed to disclose the information, but because she got rid of her papers in order to "downsize" when she went to prison. After further discussion, the prosecutor agreed to again provide defendant with all of the photos from the Colusa County case, and to confirm that Deputy Evans's report in the Butte County case had already been provided. The court ordered that defendant be given access to a computer to review the CD's containing the body camera videos or other discovery the prosecutor had previously provided. When the court asked whether that took care of defendant's discovery issues, she responded, "I believe so."
Five days later (and a week before trial), defendant again sought to suppress the victim's statements to law enforcement and emergency personnel in Butte County, attaching excerpts of the victim's preliminary hearing and trial testimony in Butte County to her motion.
On the first day of trial, the court ruled on the prosecutor's motion to admit the Butte County domestic violence incident under Evidence section 1109. After hearing argument from both parties, the court granted the motion.
During the prosecutor's case-in-chief, the district attorney questioned the victim about the Butte County stabbing incident. The victim testified that in December 2016 he went into a room at his home in Oroville to get away from someone and something stabbed through the door. When he came out of the room, someone fired a fire extinguisher at his head. When he turned around, he was stabbed in the chest. Defendant was in the house at the time, and the victim conceded he had not seen anyone else in their home that day. He said he did not remember telling Butte County officers that defendant had stabbed him with an ice pick while calling him a snitch. He claimed that officers had tortured him. His interview with Butte County law enforcement was admitted into evidence.
6.2 Discovery Obligations for Domestic Violence Evidence
Evidence Code section 1109, subdivision (a) permits the admission of evidence of a defendant's commission of other acts of domestic violence in a criminal action in which the defendant is accused of an offense involving domestic violence. The prosecution is required to disclose evidence of other acts of domestic violence in compliance with section 1054.7. (Evid. Code, § 1109, subd. (b).)
Section 1054.7 requires that disclosures be made "at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred." Generally, when a party fails to comply with the criminal discovery statutes, the court may make any order necessary "including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order." (§ 1054.5, subd. (b).) In addition, "the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure." (Ibid.) Courts have recognized, however, that "the exclusion of testimony is not an appropriate remedy absent a showing of significant prejudice and willful conduct motivated by a desire to obtain a tactical advantage at trial." (People v. Jordan (2003) 108 Cal.App.4th 349, 358; see People v. Gonzales (1994) 22 Cal.App.4th 1744, 1758.)
We review a trial court's ruling on discovery matters for an abuse of discretion. (People v. Lamb (2006) 136 Cal.App.4th 575, 581; see People v. Ayala (2000) 23 Cal.4th 225, 299 [" '[A] trial court may, in the exercise of its discretion, "consider a wide range of sanctions" in response to [a] . . . violation of a discovery order.' "].)
Here, the prosecutor moved to introduce evidence of the Butte County domestic violence incident 30 days before trial. As the motion explained, because defendant had previously been tried and convicted in the Butte County case, she already had the relevant information related to the incident. We thus find no abuse of discretion in the trial court admitting evidence of the Butte County domestic violence incident at trial.
Contrary to defendant's assertion, the record does not show that the prosecutor belatedly disclosed information regarding the Butte County incident. Instead, the record shows that defendant herself attached copies of the victim's medical records from Butte County, excerpts from his preliminary hearing and trial testimony in that case, Butte County Sheriff's Deputy Evans's police report, and an interview with the victim and another Butte County deputy to her numerous pretrial motions, most of which were filed approximately one month before trial. From this, it is reasonable to infer that defendant had the relevant information about the Butte County domestic violence incident 30 days before trial as required by section 1054.7.
In any event, even if we assume the prosecutor belatedly disclosed the evidence, defendant has not shown that exclusion of the evidence was warranted or that she was prejudiced. It is the defendant's burden to establish that the prosecution's failure to comply with discovery requirements in a timely manner was prejudicial. (People v. McKinnon (2011) 52 Cal.4th 610, 668-669.)
Nothing in the record indicates that the prosecution was trying to gain a tactical advantage by the alleged untimely disclosure or that the untimely disclosure would cause her significant prejudice. Indeed, defendant did not specifically deny the prosecutor's claim that she had previously been provided with the record of conviction or Deputy Evans's report, and she admitted she had copies of the victim's testimony from the preliminary hearing and trial in Butte County.
Defendant's attempt to show prejudice by arguing that she would have more thoroughly pursued a defense based on a ski mask found in the Colusa Motel room that she claimed belonged to some unidentified third party who stabbed the victim is nonsensical. The fact that a ski mask was found in the room has little, if anything, to do with disclosure of evidence regarding the Butte County incident.
We likewise reject her claim that the late disclosure forced her to choose between her right to a speedy trial and getting the Butte County discovery. Her numerous pretrial filings show she already had the relevant Butte County information, and she represented at the trial readiness conference that the reason she lacked discovery related to both cases, was because she "downsized" her belongings when sent to prison and not because of anything the prosecutor failed to timely disclose.
Her claim that she was precluded from completely and thoroughly reviewing the police reports and was denied the opportunity to investigate the Butte County incident and prepare for the presentation of evidence regarding the incident is equally unavailing. Over a month before trial, defendant had excerpts of Deputy Evans's police report, which she attached to her motion to suppress the victim's Butte County statements. Three weeks before trial, defendant attached excerpts of the victim's testimony in Butte County as well as his interview with Sergeant Meyers to her opposition to the prosecutor's motion to admit the Butte County incident pursuant to Evidence Code section 1109. The record thus shows she had sufficient time to prepare for the Butte County evidence.
We find defendant's showing insufficient to establish that she was prejudiced by the allegedly untimely disclosure of evidence. The trial court properly admitted the evidence.
7.0 Alleged Instructional Errors
Defendant contends reversal is required because the trial court misinstructed the jury in several respects. She argues the court lowered the prosecution's burden of proof and gave instructions that the evidence did not support, thereby violating her Fifth Amendment right to have the prosecutor prove every element of an offense beyond a reasonable doubt and her Sixth Amendment right to a fair jury trial. We disagree.
7.1 Duty to Instruct
A trial court has a duty to instruct on the general principles of law relevant to the issues raised by the evidence in a criminal case. (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) That obligation includes instructing on all elements of a charged offense. (People v. Cummings (1993) 4 Cal.4th 1233, 1311 (Cummings).) A necessary corollary to these well-established rules is that, to avoid confusing or misleading the jury, a court must not instruct on irrelevant principles of law. (People v. Saddler (1979) 24 Cal.3d 671, 681.) It is well settled that a court errs when it gives "an instruction which, while correctly stating a principle of law, has no application to the facts of the case." (People v. Guiton (1993) 4 Cal.4th 1116, 1129.)
A particular instruction " 'may not be judged in artificial isolation . . . .' " (Estelle v. McGuire (1991) 502 U.S. 62, 72 [116 L.Ed.2d 385, 399].) Instead, "[o]n review, we examine the jury instructions as a whole, in light of the trial record, to determine whether it is reasonably likely the jury understood the challenged instruction in a way that undermined the presumption of innocence or tended to relieve the prosecution of the burden to prove defendant's guilt beyond a reasonable doubt. [Citation.]" (People v. Paysinger (2009) 174 Cal.App.4th 26, 30.) With these concepts in mind, we turn to defendant's claims on appeal.
7.2 Analysis
Defendant first argues that the court erred by instructing the jury that the People were not required to prove motive, claiming it lightened the prosecutor's burden of proof. The court instructed the jury with the CALCRIM No. 370, the pattern jury instruction on motive. That instruction provides: "The People are not required to prove that the defendant had a motive to commit (any of the crimes) charged. In reaching your verdict you may, however, consider whether the defendant had a motive. [¶] Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty."
CALCRIM No. 370 is a correct statement of the law. (People v. Hillhouse (2002) 27 Cal.4th 469, 504 [recognizing motive and intent are not synonymous, and that motive generally is not an element of a crime].) Because motive was not an element of any of the charged crimes (§§ 245, subd. (a)(1), 273.5, subd. (a), 594, subd. (b)), the trial court did not err by instructing the jury that the prosecutor was not required to prove defendant had a motive to commit any of the offenses.
Defendant next contends the court's instruction for the assault with a deadly weapon offense was erroneous. In her view, the court erred in instructing the jury that the prosecutor had to prove the elements of the offense, but also that the People were not required to prove that she actually intended to use force against someone when she acted, again claiming the instruction as given improperly lightened the People's burden of proof.
The court instructed the jury with CALCRIM No. 875, the pattern jury instruction for assault with a deadly weapon. The portion of which defendant complains - that the prosecutor need not prove defendant actually intended to use force - is a correct statement of the law and does not impermissibly lessen the burden of proof. "[B]ecause assault requires only that the perpetrator act 'willfully,' i.e., with 'a purpose or willingness to commit the act' without 'any intent to . . . injure another' (Pen. Code, § 7, subd. 1), it was appropriate to advise the jury the prosecution need not prove defendant harbored an intent to use force against another." (People v. Flores (2007) 157 Cal.App.4th 216, 220.)
CALCRIM No. 875 provides in relevant part: "To prove that the defendant is guilty of this crime, the People must prove that: [¶] (1) The defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person; [¶] (2) The force used was likely to produce great bodily injury; [¶] (3) The defendant did that act willfully; [¶] (4) When the defendant acted, she was aware of facts that would lead a reasonable person to realize that her act by its nature would directly and probably result in the application of force to someone; [¶] AND [¶] (5) When the defendant acted, she had the present ability to apply force with a deadly weapon to a person. [¶] AND [¶] (6) The defendant did not act in self-defense or in defense of someone else. . . . [¶] . . . The People are not required to prove that the defendant actually intended to use force against someone when she acted. . . ."
We reject defendant's argument, asserted without reasoned analysis, that CALCRIM No. 875 as given required the jury to presume an element of the offense. As set forth in the footnote, the text of CALCRIM No. 875 makes clear that the court did not instruct the jury to presume anything. (CALCRIM No. 875.)
We likewise reject defendant's argument that the court unnecessarily repeated the instructions regarding the meaning of "applied force," "application of force," "deadly weapon," and "great bodily injury," thereby improperly emphasizing those terms for the jury. At the outset, we note that the court instructed the jury that to the extent any instructions were repeated, the court did not intend to emphasize any particular instruction. We presume the jury followed the court's instruction. (People v. Sanchez (2001) 26 Cal.4th 834, 852 [jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions].)
The court, moreover, was required to instruct the jury that "applied force" and application of force" meant "to touch in a harmful or offensive manner" for both the assault with a deadly weapon offense and the lesser included offense of simple assault. (Breverman, supra, 19 Cal.4th at p. 154 [duty to instruct on general principles of law applicable to case includes obligation to instruct on lesser included offenses when evidence raises question of whether all elements of charged offense were present]; Cummings, supra, 4 Cal.4th at p. 1311 [court obligated to instruct on all elements of a charged offense].) Similarly, use of a "deadly weapon" was an element of both the assault with a deadly weapon offense (§ 245, subd. (a)(1)) as well as the deadly weapon enhancement (§ 12022, subd. (b)(1)), which was attached to the domestic violence offense. As for the phrase "great bodily injury," that definition applied to both the deadly weapon enhancement under section 12022, subdivision (b)(1) (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029 ["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 bodily injury' "]) as well as the great bodily injury enhancement under section 12022.7 (§ 12022.7, subd. (a) ["Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years."].)
To the extent defendant claims the court incorrectly stated the law, she fails to articulate what law the court purportedly misstated. Although she cites to a portion of the record in which the court instructed on the corpus delicti rule pursuant to CALCRIM No. 359, which she expressly requested that the court give (People v. Wader (1993) 5 Cal.4th 610, 657-658 [when defense counsel deliberately requests a particular instruction the invited error doctrine bars an argument on appeal that the instruction was erroneous]), she does not explain how she believes the court's instruction was improper. "As this contention is perfunctorily asserted without any analysis or argument in support, we reject it as not properly raised." (People v. Barnett (1998) 17 Cal.4th 1044, 1107, fn. 37; see Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384 ["We need not consider an argument for which no authority is furnished."]; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 ["When an appellant . . . asserts [a point] but fails to support it with reasoned argument and citations to authority, we treat the point as waived."].)
CALCRIM No. 359, as given by the court, instructed the jury as follows: "The instruction reads, the defendant may not be convicted of any crime based on her out-of-Court statements alone. . . . You may rely on the defendant's out-of-Court statements to convict her only if you first conclude that other evidence shows that the charged crime or any lesser included offense was, in fact, committed. [¶] The other evidence may be slight and need only be enough to support a reasonable inference that the crime was committed, in which event you may use the admission to reach your verdict. [¶] This requirement of other evidence does not apply to proving the identity of a person who committed the crime or the degree of the crime. If the other evidence shows that the charged crimes or any lesser included offenses were committed, the identity of the person who committed it and the degree of the crime may be proved by the defendant's statements alone. . . . [¶] . . . [¶] . . . You may not convict the defendant unless the People have proved a guilt beyond a reasonable doubt."
In any event, in every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself (the fact of injury, loss or harm), and the existence of a criminal agency as its cause (People v. Alvarez (2002) 27 Cal.4th 1161, 1168), and the court must so instruct the jury (id. at p. 1178 [recognizing that California decisions have required a jury instruction against exclusive reliance on a defendant's out-of-court statements to prove an offense, requiring proof of the corpus delicti]; CALCRIM No. 359). The court's instruction regarding the corpus delicti rule was thus proper.
Defendant's argument that the court should not have instructed the jury on intent because the instruction was not supported by the evidence and was irrelevant is without merit. As far as we can discern, given defendant's repeated denials of culpability, she appears to argue that no evidence showed she intended to stab her husband, and, therefore, the court should not have instructed the jury on intent because it was irrelevant. Not so.
Both assault with a deadly weapon and infliction of corporal injury on a spouse are general intent crimes. (People v. Williams (2001) 26 Cal.4th 779, 788 [reaffirming that assault is a general intent crime]; People v. Thurston (1999) 71 Cal.App.4th 1050, 1055 [corporal injury offense requires general criminal intent].) The trial court therefore properly instructed the jury with CALCRIM No. 250, which provides: "The crimes or other allegations charged in this case require proof of the union, or joint operation, of act and wrongful intent. [¶] For you to find a person guilty of the crimes in this case of Assault with a Deadly Weapon, as charged in Count I and Corporal Injury To [a] Spouse, as charged in Count II true, that person must not only commit the prohibited act or fail to do the required act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act or fails to do a required act; however, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime[]."
Finally, to the extent defendant complains that the clerk's transcript on appeal failed to include a written copy of CALCRIM No. 373 pursuant to rule 8.320(b) of the California Rules of Court, the absence of the proposed instruction in the record is not a basis for reversing her convictions. The reporter's transcript shows that defendant requested the instruction, and that the court gave it in response to her request.
Rule 8.320(b) provides in relevant part: "The clerk's transcript must contain: [¶] . . . [¶] (4) All jury instructions that any party submitted in writing and the cover page required by rule 2.1055(b)(2) indicating the party requesting each instruction, and any written jury instructions given by the court." (Cal. Rules of Court, rule 8.320(b)(4).)
Pursuant to CALCRIM No. 373, the court instructed the jury as follows: "[I]f you believe that the evidence shows that another person or persons may have been involved in the commission of the crimes charged against the defendant, there may be many reasons why someone who appears to be involved might not be a co-defendant in this particular case, and you must not speculate about whether that other person has been or will be prosecuted. Your duty is to decide whether the defendant on trial here committed the crimes charged."
Because the trial court did not misinstruct the jury, defendant's constitutional rights were not violated.
8.0 Appointment of Defense Expert
Defendant contends the court prejudicially erred in denying her request to appoint an expert in neurology and psychology to examine the victim for mental illness related issues to support her defense. We disagree.
8.1 Defendant's Request for an Expert
Prior to trial, defendant moved for appointment of an expert in psychology and neurology to examine the victim regarding the symptoms and effects of his alleged mental illness and brain damage, asserting the expert was necessary to show that when the victim failed to take his medication, he hallucinated and misperceived things. According to defendant, a doctor in a previous case had examined him about similar issues. The court denied the request, finding an expert was unnecessary because defendant could subpoena the doctor in the prior case to testify if she so chose.
Nothing in the record shows defendant subpoenaed the doctor. Instead, at trial defendant asked the victim about any mental illness and brain damage he suffered. He testified that he suffered brain damage from being hit by a car when he was a child. He had been diagnosed with brain damage and attention deficit disorder. Although he sometimes took medication for his condition, on February 2, 2016, he had not been taking his medication. Without his medication, the victim testified that he perceives things wrong and sometimes hears and sees things that are not actually happening. He also testified that doctors had advised him against drinking since alcohol made his mental illness symptoms worse. He thought he maybe had had a beer the day of the incident but was not drunk.
8.2 Analysis
In general, a represented defendant has the federal and state constitutional right to the effective assistance of counsel. (See People v. Clark (2016) 63 Cal.4th 522, 630 [federal and state constitutional right to counsel includes the right to effective counsel].) This right, in turn, includes the right to reasonably necessary defense services. (Ibid.)
A self-represented defendant is not entitled to special treatment not afforded a defendant represented by counsel. (People v. Faxel (1979) 91 Cal.App.3d 327, 330.) Thus, a defendant who represents himself must also show that any ancillary services, such as public payment for an investigator or expert, are reasonably necessary to prepare a defense. (Ibid. [trial court properly denied self-represented defendant's motion for appointment of an investigator and runner where the defendant failed to show the services were reasonably necessary for his defense].)
Evidence Code section 730 governs court-appointed experts at public expense. The statute provides in relevant part: "When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required." While section 730 provides for court-appointed experts under certain circumstances, the "statute does not grant a defendant in a criminal case an absolute right to the appointment of an expert on his behalf but is a matter discretionary with the court." (People v. Vatelli (1971) 15 Cal.App.3d 54, 61; see People v. Clark, supra, 63 Cal.4th at pp. 630-631 [in a capital case, appellate court reviews a trial court's ruling on an application for authorization to incur expenses to prepare or present a defense for abuse of discretion].)
We conclude the trial court did not abuse its discretion in denying defendant's application for funds to retain an expert in neurology and psychology to examine the victim. Defendant conceded that she was aware of a previous doctor who had examined or treated the victim for those same issues. Thus, as the court noted, defendant could subpoena that doctor to testify on her behalf, making appointment of a new expert not reasonably necessary. The fact that defendant chose not to subpoena the doctor was a strategic decision she was entitled to make while representing herself.
In any event, defendant has not shown that she was prejudiced by the lack of an expert. (People v. Daniels (1991) 52 Cal.3d 815, 850-851 [finding the defendant was not prejudiced by trial court's improper denial of his request for funds to conduct a public opinion survey about the community knowledge and attitudes about his trial to determine whether he could get a fair trial in that county for a change of venue motion].) Defendant made no showing that the victim's mental health or brain damage problems required technical expertise to understand. (Collins v. Superior Court (1977) 74 Cal.App.3d 47, 52 [bare assertion that expert was necessary to evaluate information communicated from petitioners in a dependency proceeding as to how child was injured insufficient to require appointment of expert].) Indeed, nothing in the nature of the victim's trial testimony shows it was particularly confusing or highly technical which would have required an expert explanation to enable the jury to comprehend it.
The victim testified that he suffered brain damage and mental illness, that he did not take his prescribed medication on the day of the stabbing, and that when he did not take his medication he hallucinated and perceived things that actually did not happen. Based on this testimony, defendant was able to fully present her defense to the jury that even if the victim said she stabbed him, because of his brain damage and mental illness, his perception was incorrect. 9.0 Ability to Pay Fees, Fines, and Assessments
Defendant challenges the fees, fines, and assessments imposed by the trial court at sentencing. She argues the court violated due process and the prohibition against excessive fines by imposing the fees, fines, and assessments without first determining her ability to pay.
9.1 Financial Obligations Imposed at Sentencing
In the Colusa County case, the trial court imposed various fees, fines, and assessments on the domestic violence offense (count II) and the vandalism offense (count III). The court stayed fees and fines on the assault offense (count I) since it stayed punishment for that conviction under section 654.
For count II, the court imposed a $200 domestic violence base fine (§ 273.5, subd. (a)), plus the following additional penalty assessments and surcharge: a $200 state penalty (§ 1464), a $140 county penalty (Gov. Code, § 76000), a $100 state court construction penalty (Gov. Code, § 70372), a $20 DNA penalty (Gov. Code, § 76104.6), an $80 state-only penalty (Gov. Code, § 76104.7), a $40 emergency medical services penalty (Gov. Code, § 76000.5), and a $40 state surcharge (§ 1465.7). For count III, the court imposed a $200 vandalism base fine (§ 594, subd. (b)(1)), plus the same penalty assessments and surcharge described above.
For counts II and III, the court imposed a $30 court facilities assessment (Gov. Code, § 70373) and a $40 court operations assessment (§ 1465.8). It does not appear the court imposed a court facilities or court operations assessment for count I.
The trial court was required to impose a $30 court facilities assessment and a $40 court operations assessment on count I even though it stayed punishment on that count under section 654. The relevant statutory provisions mandate imposition of the assessments for each conviction. (Gov. Code, § 70373, subd. (a)(1) ["To ensure and maintain adequate funding for court facilities, [a $30] assessment shall be imposed on every [felony] conviction for a criminal offense"]; § 1465.8, subd. (a)(1) ["To assist in funding court operations, an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal offense"].) The assessments are mandatory and may be imposed on appeal. (People v. Woods (2010) 191 Cal.App.4th 269, 272-273 [court facilities and court operations assessments mandatory].) Because neither assessment constitutes punishment (People v. Alford (2007) 42 Cal.4th 749, 757 [§ 1465.8]; People v. Fleury (2010) 182 Cal.App.4th 1486, 1492-1494 [Gov. Code, § 70373]), section 654's stay rule does not apply. (See, e.g., People v. Crittle (2007) 154 Cal.App.4th 368, 370-371 [because § 1465.8 fee was not punishment, § 654 did not apply].) Accordingly, we shall modify the judgment to impose the assessments on count I.
The court imposed a $600 restitution fine (§ 1202.4), and a $600 parole revocation restitution fine (§ 1202.45), which was stayed unless parole was revoked. It also ordered defendant to pay $2,000 in direct victim restitution to the Colusa Motel. (§ 1202.4, subd. (f).)
In the Butte County case, the court ordered defendant to pay the fines and fees previously imposed.
Defendant generally objected to the fees, fines, and assessments, although she did not specify the basis for her objection.
9.2 Analysis
9.2.1 Due Process Challenge
Relying primarily on Dueñas, supra, 30 Cal.App.5th 1157, defendant argues that the imposition of the fees, fines, and assessments without expressly considering her ability to pay violates due process, requiring a remand for the trial court to conduct an ability to pay hearing. She asserts her Dueñas challenge is not forfeited because she objected generally to the fees and fines, the court imposed an unauthorized sentence without determining her ability to pay, and that a party may raise a constitutional challenge for the first time on appeal. We are not persuaded.
We are not convinced that Dueñas was correctly decided in fashioning this obligation out of the rights under due process to access to the courts, and to be free from incarceration for an involuntary failure to pay fees or fines. (People v. Hicks (2019) 40 Cal.App.5th 320, 325 [briefly summarizing the reasoning of Dueñas], review granted Nov. 26, 2019, S258946 (Hicks).)
We may consider, as persuasive authority, the cases that have been granted review by our Supreme Court. (Cal. Rules of Court, rule 8.1115(e)(1).)
As a result, we need note only that our Supreme Court has started the process of reviewing this question, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47 (review granted Nov. 13, 2019, S257844), which agreed with Dueñas (Kopp, at pp. 95-96). In the meantime, we simply join those authorities that have rejected Dueñas (e.g., Hicks, supra, 40 Cal.App.5th 320, 329, rev.gr.) without the need to elaborate any further. Defendant is not entitled to a remand for the trial court to consider her ability to pay the challenged fines, fee, and assessments on the basis of a due process violation.
The analysis in Hicks disapproving of the reasoning in Dueñas is adopted in People v. Kingston (2019) 41 Cal.App.5th 272, 279-281 and is paralleled in People v. Aviles (2019) 39 Cal.App.5th 1055, 1068-1069, People v. Caceres (2019) 39 Cal.App.5th 917, 927, and in the opinions of individual justices in People v. Santos (2019) 38 Cal.App.5th 923, 937-938 (dis. opn. of Elia, J.), and People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1034-1040 (conc. opn. of Benke, J.) (Gutierrez).
9.2.2 Excessive Fines Challenge
In a related argument, defendant contends that imposing the restitution fine under section 1202.4 in this case without considering her ability to pay violated the excessive fines clauses of the federal and state Constitutions (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17). (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 731 [after examining the relevant considerations, a reviewing court can decide for itself whether a fine or penalty is unconstitutionally excessive].) We disagree.
"The Eighth Amendment prohibits the imposition of excessive fines. The word 'fine,' as used in that provision, has been interpreted to be ' "a payment to a sovereign as punishment for some offense." ' " (Gutierrez, supra, 35 Cal.App.5th at p. 1040 (conc. opn. of Benke, J.).) The determination of whether a fine is excessive for purposes of the Eighth Amendment is based on the factors set forth in United States v. Bajakajian (1998) 524 U.S. 321 (Bajakajian). (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at pp. 728-729 [applying Eighth Amendment analysis to both the defendant's federal and state excessive fines claims].)
"The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. [Citations.] . . . [A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." (Bajakajian, supra, 524 U.S. at p. 334.)
"The California Supreme Court has summarized the factors in Bajakajian to determine if a fine is excessive in violation of the Eighth Amendment: '(1) the defendant's culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant's ability to pay. [Citations.]' (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at p. 728; see Gutierrez, supra, 35 Cal.App.5th at p. 1040 (conc. opn. of Benke, J.).) While ability to pay may be part of the proportionality analysis, it is not the only factor. (Bajakajian, supra, 524 U.S. at pp. 337-338.)" (People v. Aviles, supra, 39 Cal.App.5th at p. 1070.) We review the excessiveness of a fine challenged under the Eighth Amendment de novo. (Aviles, at p. 1072.)
Here, we find that the $600 restitution fine imposed for stabbing her husband through a bathroom door with a hunting knife and destroying a motel room is not grossly disproportional to the level of harm and defendant's culpability in this matter. The victim's arm was sliced during the attack, and only the bathroom door appears to have kept him from greater harm. The societal harm and serious danger caused from stabbing one's spouse is readily apparent. Accordingly, the $600 restitution fine imposed in this case is not excessive under the Eighth Amendment or the California Constitution.
10.0 Credits
Defendant contends the court erred by limiting her conduct credits to 15 percent of her actual custody time under section 2933.1 in both the Butte County and Colusa County cases because she was not convicted of a violent felony as required by the statute. She is mistaken.
10.1 Additional Background on Credit Award
In the Butte County case, the trial court awarded defendant 626 days of actual credit plus an additional 85 days of conduct credit. The court calculated the credits as follows: The court subtracted the 60 days defendant was in the Napa State Hospital while undergoing competency review from the 626 actual days confined, and then applied the 15 percent conduct credit limitation under section 2933.1 to the remaining 566 actual days, which equaled 85 conduct days for a total of 711 credit days (626 actual plus 85 conduct). In the Colusa County case, the court awarded defendant four days of actual credit, the time spent in jail between her arrest and release on her own recognizance.
For the Colusa County case, the probation report included an additional 15 days of actual credit between January 31 and February 14, 2017, but because defendant conceded she was not being held in Colusa County during that time for her attack on defendant in Colusa County, the court did not award her any actual custody days for that period; defendant had already been awarded credit for that time in the Butte County case. (People v. Bruner (1995) 9 Cal.4th 1178, 1183 [presentence custody stemming from unrelated incidents may not be credited against a subsequent incarceration if the conduct was not a cause of the earlier restraint].)
10.2 Analysis
A defendant convicted of a felony is entitled to presentence credit against the term of imprisonment for the actual time spent in local custody prior to sentencing. (§ 2900.5, subd. (a).) A defendant may also earn conduct credit for good behavior during the time in local custody. (§§ 4019, 2933.1.)
Under section 2933.1, if the defendant is convicted of a "violent felony" listed in section 667.5, subdivision (c) and is sentenced to state prison, both presentence and postsentence conduct credits are limited to 15 percent. (§ 2933.1, subds. (a), (c) [15 percent limit on conduct credits where defendant convicted of a violent felony]; People v. Valenti (2016) 243 Cal.App.4th 1140, 1184.) Because, by its terms, section 2933.1 applies to the offender rather than the offense, the statute limits a violent felon's conduct credits for all counts of conviction, regardless of whether every count comes within section 667.5's purview. (People v. Palacios (1997) 56 Cal.App.4th 252, 255-256; People v. Ramos (1996) 50 Cal.App.4th 810, 817 [same].)
Section 2933.1, subdivision (a) provides: "Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933." Subdivision (c) of section 2933.1 provides: "Notwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in, or commitment to, a county jail, . . . following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a)."
Subdivision (c) of section 667.5 provides that a "violent felony" includes: "Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7 . . . ." (§ 667.5, subd. (c)(8).)
In both the Colusa County case and the Butte County case, defendant was convicted of corporal injury on a spouse while personally inflicting great bodily injury on the victim within the meaning of section 12022.7. (§§ 273.5, subd. (a), 12022.7, subd. (e).) Thus, defendant was convicted of violent felonies in both cases within the meaning of section 667.5, subdivision (c), and section 2933.1's 15 percent credit limitation applied to each case. (§ 2933.1, subds. (a), (c).)
We note that for the Butte County case, the trial court did not award defendant 15 percent conduct credit for the 60 days she spent in the Napa State Hospital while she was incompetent to stand trial. That was proper. (People v. Waterman (1986) 42 Cal.3d 565, 569, 571 [an accused awaiting trial is not statutorily entitled to conduct credits for time spent in a state hospital while subject to a finding of incompetency].) For the Colusa County case, defendant was not awarded any conduct credit because 15 percent of four actual days is less than a full day. (People v. Smith (1989) 211 Cal.App.3d 523, 527 [rounding up not permitted under statutory scheme for credits].)
11.0 Punishment for Enhancements
Defendant contends the court erred in imposing punishment for the great bodily injury and use of a deadly weapon enhancements. She argues that under sections 1170.1 and 654, punishment for the enhancements should have been stayed. We disagree.
11.1 Additional Background
The jury found defendant guilty of three felonies in the Colusa County case: assault with a deadly weapon (count I), corporal injury on a spouse (count II), and vandalism (count III); it also found two conduct enhancements attached to the corporal injury offense true: use of a deadly weapon and infliction of great bodily injury.
The court chose count II, the corporal injury offense, as the principal term. It imposed the upper term of four years on that count, plus the low term of three years for the great bodily injury enhancement (§ 12022.7, subd. (e)), plus one year for the weapon enhancement (§ 12022, subd. (b)(1)). The court imposed and stayed a sentence on the assault offense (count I) under section 654, and imposed a consecutive eight months (one-third the midterm) for the vandalism offense (count III).
11.2 Section 1170.1
"Section 1170.1, subdivision (a) governs the calculation and imposition of a determinate sentence when, as here, the defendant has been convicted of more than one felony." (People v. Beard (2012) 207 Cal.App.4th 936, 940, fn. omitted (Beard).) Under section 1170.1, when a person is convicted of two or more felonies and consecutive sentences are imposed, the total sentence consists of "the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and section 12022.1." (§ 1170.1, subd. (a).)
Section 1170.1, subdivision (a) provides in relevant part: "Except as otherwise provided by law, and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses. . . ."
"The principal term consists of the greatest term of imprisonment imposed plus any applicable specific enhancements." (Beard, supra, 207 Cal.App.4th at p. 941; § 1170.1, subd. (a).) "The 'subordinate term' for each consecutive felony conviction consists of one-third of the middle term of imprisonment prescribed for the subordinate offense plus one-third of the term imposed for any applicable specific enhancements." (Beard, at p. 941; § 1170.1, subd. (a).)
" 'Sentence enhancements are generally of two types: those which go to the nature or status of the offender, and those which go to the nature or circumstances of the offense. [Citation.] An enhancement which is based on the defendant's conduct in committing the charged offense, such as the personal use of a weapon or the infliction of great bodily harm, is imposed on the count to which it applies. [Citation.]' " (Beard, supra, 207 Cal.App.4th at p. 942.) "By contrast, the enhancements based on prior convictions are status enhancements because 'they are related to the status of the offender, rather than the manner of commission of a crime . . . [Citations].' " (Ibid.)
Relying on cases that address an earlier version of section 1170.1 no longer in effect, defendant claims that under section 1170.1, subdivision (a), a court may only impose enhancements on offenses listed in section 667.5, subdivision (c). According to her, because neither section 273.5 for inflicting a corporal injury on a spouse nor section 245 for assaulting someone with a deadly weapon are listed in section 667.5, the court could not impose the great bodily injury and weapon use enhancements found true by the jury for count two.
The plain language of section 1170.1, subdivision (a) now in effect, however, contains no such limitation. (§ 1170.1, subd. (a).) We decline defendant's implicit invitation to insert such a restriction into the statutory language. (People v. Guzman (2005) 35 Cal.4th 577, 587 [inserting additional language into a statute violates the cardinal rule of statutory construction that courts must not add provisions to statutes].)
We similarly reject defendant's contention that because she was convicted of assault with a deadly weapon or by means of force likely to produce great bodily injury, the court could not impose the great bodily injury enhancement attached to the corporal injury offense. Under section 1170.1, subdivision (a), a conduct enhancement based on infliction of great bodily injury is imposed on the count to which it applies. (Beard, supra, 207 Cal.App.4th at p. 942.) Here, that count was the corporal injury offense and not the assault offense.
Defendant's reliance on subdivision (g) of section 12022.7, which prohibits applying a great bodily injury enhancement found true under section 12022.7, subdivision (a) to any crime where inflicting great bodily injury is an element of the offense, does not apply. Inflicting great bodily injury is not an element of the offense of inflicting a corporal injury on a spouse resulting in a traumatic condition under section 273.5. While " 'great bodily injury' " requires "a significant or substantial physical injury" (§ 12022.7, subd. (f)), a " 'traumatic condition' " under section 273.5 can be minor in nature. (§ 273.5, subd. (d) [for purposes of section 273.5, a traumatic condition means "a condition of the body, such as a wound, or external or internal injury, including, but not limited to, injury as a result of strangulation or suffocation, whether of a minor or serious nature, caused by a physical force"]; People v. Sloan (2007) 42 Cal.4th 110, 117 [traumatic condition for corporal injury offense can be minor or serious wound].)
Section 12022.7, subdivision (g) provides: "This section shall not apply to murder or manslaughter or a violation of Section 451 or 452. Subdivisions (a), (b), (c), and (d) shall not apply if infliction of great bodily injury is an element of the offense."
11.3 Application of Section 654 to Enhancements
Section 654, subdivision (a) 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." (§ 654, subd. (a).) The statute does not prohibit multiple convictions for the same conduct, only multiple punishment. (People v. Monarrez (1998) 66 Cal.App.4th 710, 713.) "In such a case, the proper procedure is to stay execution of sentence on one of the offenses." (Ibid.)
Defendant argues that section 654 precluded the trial court from punishing her for the deadly weapon and great bodily injury enhancements because both enhancements were based on the same act and objective - stabbing the victim. Not so.
In People v. Ahmed (2011) 53 Cal.4th 156, 159-160 (Ahmed), our Supreme Court held that a defendant who shot his girlfriend in the stomach could properly be punished for assault with a deadly weapon as well as for two attached sentence enhancements for personal use of a firearm and personal infliction of great bodily injury. In doing so, the court looked to the specific provisions of section 1170.1, subdivisions (f) and (g) rather than the general provisions of section 654 to determine whether the defendant could be punished for both enhancements. (Ahmed, at pp. 164-165.)
Section 1170.1, subdivision (f), provides: "When two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for the infliction of great bodily injury." Section 1170.1 subdivision (g), provides: "When two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for being armed with or using a dangerous or deadly weapon or a firearm."
The court in Ahmed found that subdivisions (f) and (g) "mirror each other." (Ahmed, supra, 53 Cal.4th at p. 165.) Together, the court explained, they permit imposition of both enhancements for using a deadly weapon and inflicting great bodily injury for a single offense. (Ibid.) After determining that imposition of both enhancements was proper under section 1170.1, subdivisions (f) and (g), the court declined to consider section 654. (Ahmed, at p. 168.)
The same analysis applies here. Under the express terms of section 1170.1, subdivisions (f) and (g), the trial court properly punished defendant for using a deadly weapon, the knife, and for inflicting great bodily injury on the victim during the corporal injury offense. (Ahmed, supra, 53 Cal.4th at p. 168.) And, under section 654, the trial court properly stayed the sentence on the assault with a deadly weapon offense, which was based on the same act as the corporal injury offense for which she was punished. Thus, the trial court complied with both section 1170.1 and section 654 in imposing sentence.
12.0 Imposition of Upper Term
Defendant contends the trial court erred by imposing the upper term on her domestic violence conviction. She argues the court improperly: (1) considered the Butte County convictions for stabbing the victim since that stabbing actually occurred after the Colusa County stabbing; (2) relied on "personal feelings"; (3) considered the victim's " 'vulnerability' " as an aggravating factor; (4) inferred she stabbed the victim in Butte County for being a "snitch" in Colusa County; and (5) relied on facts outside the evidence from an inaccurate probation report, which the court refused to correct. None of her arguments have merit.
12.1 Additional Background
The probation report listed several aggravating factors, including: that the crime involved acts disclosing a high degree of cruelty, viciousness, or callousness; that the victim was particularly vulnerable since he was barricaded in the small bathroom when stabbed; that defendant illegally interfered with judicial process and threatened the victim by stabbing him in the chest in Butte County while calling him a snitch in an apparent attempt to dissuade him from testifying; that defendant had engaged in violent conduct which indicated a serious danger to society; and that her convictions as an adult were numerous or increasing in seriousness. (Cal. Rules of Court, rule 4.421(a)(1), (3), (6) & (b)(1) & (2).) The report found no mitigating factors related to the crime, but noted that defendant's prior performance on probation was satisfactory. (Cal. Rules of Court, rule 4.423(a) & (b)(6).)
Based on the aggravating and mitigating factors, the probation report recommended that the court impose an upper term on the domestic violence offense as well as on the attached great bodily injury enhancement.
Defendant filed an opposition to the probation report, denying she stabbed the victim or that she was violent or a danger to society. She also moved to correct the probation report, challenging, among other things, using various prior convictions to enhance her sentence and the amount of direct victim restitution to the motel owner. Defendant also filed a motion to impose the low term at sentencing and a motion to impose a concurrent sentence. In a statement in mitigation, defendant disputed the facts as found by the jury. She attached several affidavits of the victim in which he denied telling hospital personnel that defendant had stabbed him, asserted Colusa officers sexually assaulted defendant when she was arrested, and claimed he was tortured into telling Butte County officers that defendant had stabbed him with an ice pick.
At the sentencing hearing, the court stated (in response to defendant's various objections) that it would not consider any prior convictions that had since been dismissed under section 1203.4, or that occurred more than 15 years ago, and that it would consider her arguments dealing with mitigating and aggravating circumstances for purposes of sentencing.
After considering the facts underlying the offenses, the detailed probation report that identified aggravating and mitigating factors, defendant's statement in mitigation, her requests for low and concurrent terms, and the parties' arguments during the sentencing hearing, the court found the factors in aggravation outweighed any mitigation factors and imposed the upper term of four years for the corporal injury offense, the low term of three years for the great bodily injury enhancement (contrary to probation's upper term recommendation), and one year for the weapon enhancement. It stayed the sentence on the assault offense under section 654, and imposed a consecutive one-third the midterm of eight months for the vandalism offense.
12.2 Analysis
A trial court generally has broad discretion to tailor a sentence to the particular case. (People v. Scott (1994) 9 Cal.4th 331, 349.) The court has discretion to impose the lower or upper term instead of the middle term, and to impose consecutive rather than concurrent sentences. (Ibid.; see § 1170, subd. (b) ["When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court"].) "If an enhancement is punishable by one of three terms, the court must, in its discretion, impose the term that best serves the interest of justice and state the reasons for its sentence choice on the record at the time of sentencing." (Cal. Rules of Court, rule 4.428(a).) When a trial court is required to select a term from a sentencing triad (Cal. Rules of Court, rule 4.420(a)), "[o]nly a single aggravating factor is required to impose the upper term." (People v. Osband (1996) 13 Cal.4th 622, 728.)
Here, there were more aggravating factors than needed to support an upper term on the corporal injury offense, including the vulnerability of the victim while he was trapped in the bathroom trying to avoid being stabbed by defendant through the bathroom door. The court also found that the victim was mentally vulnerable given his brain damage and mental health issues and appeared susceptible to manipulation by defendant. That circumstance is a factor reasonably related to the sentencing choice and properly considered under rules 4.408 and 4.420(b) of the California Rules of Court.
Rule 4.408(a) provides: "The listing of factors in these rules for making discretionary sentencing decisions is not exhaustive and does not prohibit a trial judge from using additional criteria reasonably related to the decision being made. Any such additional criteria must be stated on the record by the sentencing judge." (Cal. Rules of Court, rule 4.408(a), italics added.) Rule 4.420(b) provides: "In exercising his or her discretion in selecting one of the three authorized terms of imprisonment referred to in section 1170(b), the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. The relevant circumstances may be obtained from the case record, the probation officer's report, other reports and statements properly received, statements in aggravation or mitigation, and any evidence introduced at the sentencing hearing." (Cal. Rules of Court, rule 4.420(b), italics added.)
The violent nature of defendant's crimes was also increasing in seriousness as evidenced by the nature of the wounds inflicted in both Colusa and Butte counties. The victim's arm wound in Colusa County required five stitches to close whereas in Butte County the victim suffered a punctured lung after defendant stabbed him in the chest with an ice pick. While defendant denied being violent or a danger to society, based on the evidence presented at trial, the court could reasonably disagree with that assessment.
Defendant's argument that the court was precluded from considering the after-occurring Butte County incident is meritless. Evidence of that attack was properly admitted at the Colusa County trial under Evidence Code section 1109, and the court could consider such evidence in determining the appropriate sentence. (Cal. Rules of Court, rule 4.420(b) [in making discretionary sentencing choices, sentencing court may consider relevant circumstances obtained from the case record].)
Defendant's claim that the court could impose only the upper term on the domestic violence offense if it struck the great bodily injury enhancement is without merit. The court did not use the true finding on the great bodily injury enhancement to justify imposing the upper term on the offense and the court imposed the lower term on the enhancement given the nature of defendant's arm wound.
Nothing in the record, moreover, supports defendant's assertion that the trial judge relied on his "personal feelings" when selecting the upper term. Rather, the court's comments at sentencing merely explained reasonable inferences that could be drawn from the evidence presented at trial.
To the extent defendant claims the probation report contained inaccuracies in violation of her due process rights, we are not persuaded. Defendant appears to dispute the facts as summarized by the probation officer based on the police reports, the 911 call, follow-up reports from the district attorney's office, a search warrant statement of probable cause, and the victim's medical records. But the probation report's factual summary of the underlying offenses was consistent with evidence presented at trial. Thus, unlike in People v. Eckley (2004) 123 Cal.App.4th 1072, 1078-1079, which defendant cites to support her due process argument, the trial court here did not rely on a probation report containing statements contrary to the trial evidence. Although defendant disagrees with the jury's interpretation of the evidence against her, the fact that she continues to deny stabbing her husband in both Colusa and Butte counties does not mean the probation report was inaccurate.
Furthermore, based on her objections, the trial court did not consider prior convictions more than 15 years old or those that had been dismissed under section 1203.4. Given the above, the trial court did not violate defendant's due process rights by relying on the probation report as presented.
The court properly imposed the upper term on the corporal injury offense. We reject defendant's claims to the contrary.
13.0 Ineffective Assistance of Standby Counsel/Constitutional Right to Testify
Defendant contends her standby counsel was constitutionally ineffective, and that she was denied her constitutional right to testify because the trial court failed to advise her of that right. Neither contention has merit.
Defendant chose to represent herself as was her right. When the court appointed standby counsel prior to trial, it specifically explained to defendant that standby counsel would not be advising her at trial. His sole role was to take over in the event defendant could no longer represent herself. Given his limited role, which was not to advise defendant, her claim that he provided inadequate advice during trial is specious. And to the extent defendant cites alleged statements by standby counsel to establish his purported ineffectiveness, nothing in the record supports her claims. (Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 590, fn. 8 [courts will decline to consider any factual assertion unsupported by record citation at the point where it is asserted].)
To the extent defendant cites standby counsel's comments after the court granted defendant's request that he represent her at sentencing of " 'want[ing] to be prepared to do a good job' " and " 'fe[e]l[ing] trapped' " by defendant's initial refusal to waive time to allow him to adequately prepare for sentencing, those comments indicate that counsel believed the complexity of the case and the sentencing issues presented warranted additional preparation time. Counsel's comments, contrary to defendant's contention, show the effective assistance of counsel.
Defendant's claim that the trial court had a duty to advise her of her right to testify is contrary to law. (People v. Barnum (2003) 29 Cal.4th 1210, 1223.) "The general rule is that a trial court ordinarily is not required to give any advisement to a self-represented defendant who chooses to represent himself or herself after knowingly, intelligently, and voluntarily forgoing the assistance of counsel." (Id. at p. 1214.) This includes advising a self-represented defendant of the right to testify. (Id. at p. 1223; People v. Jones (1992) 2 Cal.App.4th 867, 873.)
14.0 Cumulative Error
Defendant finally argues that reversal is required due to the cumulative effect of the alleged errors. Because we have rejected all of defendant's claims of error on the merits, or have found that any alleged errors, either individually or cumulatively, were not prejudicial, we reject her contention that the cumulative effect of the alleged errors requires reversal. (People v. Cook (2006) 39 Cal.4th 566, 608.)
15.0 Correction of Stayed Sentences
In examining the record, we have discovered an error in the sentence imposed, which we shall correct on appeal. (People v. Alford (2010) 180 Cal.App.4th 1463, 1473 [appellate court has authority to correct unauthorized sentence on appeal to conserve judicial resources].) The trial court orally imposed a one-third the midterm sentence of one year for the assault with a deadly weapon offense (count I) in the Colusa County case, and a one-third the midterm sentence of one year for the assault with a deadly weapon offense (count one) in the Butte County case, and stayed both sentences under section 654. That was incorrect.
"The one-third-the-midterm rule of section 1170.1, subdivision (a), only applies to a consecutive sentence, not a sentence stayed under section 654." (People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164.) When a sentence is required to be stayed under section 654, the trial court should impose a full-term sentence to ensure the "defendant's punishment is commensurate with [her] criminal liability" in the event that the stay is lifted. (Ibid.) Accordingly, we shall modify the judgment to impose the low term of two years on each assault count (§ 245, subd. (a)(1)), and shall stay each term under section 654.)
DISPOSITION
The judgment is modified to impose the low term of two years for the assault with a deadly weapon convictions in both the Colusa County case and the Butte County case, and those terms are each stayed pursuant to section 654. The judgment is further modified to impose a $30 court facilities assessment under Government Code section 70373 and a $40 court operations assessment under section 1465.8 on defendant's assault with a deadly weapon conviction (count I) in the Colusa County case. As so modified, the judgment is affirmed. The clerk is directed to prepare an amended abstract of judgment, and to forward a copy to the Department of Corrections and Rehabilitation.
/s/_________
BUTZ, Acting P. J. We concur: /s/_________
DUARTE, J. /s/_________
HOCH, J.