Opinion
C086875
12-06-2019
THE PEOPLE, Plaintiff and Respondent, v. LUTHER D. FOSTER, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17FE000529)
Defendant Luther D. Foster appeals from his convictions for four counts of robbery, attempted murder of a peace officer, shooting a police dog, being a felon in possession of a firearm, and multiple enhancements. On appeal, defendant contends: (1) several convictions must be reversed because his trial counsel conceded guilt as to those counts in closing argument; (2) the court erred in admitting his inculpatory statements to police; (3) insufficient evidence supported the court's finding that his prior out-of-state conviction constituted a strike; (4) his five-year enhancement for a prior conviction for a serious crime must be reversed, and (5) the trial court must correct clerical errors in the abstract of judgment.
We observe that the trial court erroneously imposed and stayed a determinate sentence of one-third the midterm rather than a full term related to one of the counts, and we modify the judgment accordingly. We affirm the judgment as modified and remand the matter to the trial court to allow the court to exercise its discretion to strike the five-year enhancement and amend and correct the abstract of judgment.
FACTS AND PROCEDURAL BACKGROUND
On December 20, 2016, defendant entered a Subway sandwich shop armed with a handgun and demanded that the employee give him the money in the cash register; he left the store with approximately $300 to $400 in cash. Three days later, defendant entered a Jamba Juice armed with a handgun and demanded money from a store employee; defendant removed cash from the register and left.
Approximately two weeks later, defendant and juvenile Clifton Doe entered a different Jamba Juice with handguns and demanded money from the two employees. They removed cash from the register before leaving the store. Police Officer Jason Miller responded to the Jamba Juice after the armed robbery was reported. Miller approached the scene in a marked patrol car wearing a full police uniform; a police dog accompanied him. As Miller neared the Jamba Juice he observed defendant, holding a handgun, and Doe; the two matched the description of the robbers. Miller got out of the car, turned on his overhead lights, and ordered defendant to drop the gun. Defendant and Doe looked back at Miller, but they ignored his command and continued to walk away from him. Miller warned defendant and Doe that he would release the dog if they did not stop. Defendant and Doe ran, and Miller released the dog. As the dog approached defendant, he shot the dog twice in the leg. Defendant then fired two shots at Miller but missed. Miller returned fire. Defendant and Doe fled, but defendant was arrested after jumping in a drainage ditch and throwing his gun into weeds nearby; he had been shot twice.
In a statement to police, defendant admitted committing the second robbery at Jamba Juice and shooting at the police dog. But defendant said he only shot at the police dog after Miller shot him, because the dog was going to bite him. Defendant denied shooting at Miller.
A jury found defendant guilty of four counts of robbery (Pen. Code, § 211; counts one, two, six, and seven), attempted murder of a peace officer who was engaged in the performance of his duties (§§ 187, subd. (a), 664, subd. (e); count three), shooting a dog under the supervision of a peace officer in the discharge of his or her assigned duties and inflicting serious injury on the dog (§ 600, subds. (a), (c); count four), and possession of a firearm by a person who has been convicted of a felony (§ 29800, subd. (a)(1); count five). The jury also found defendant personally used a firearm (§ 12022.53, subd. (b)) in connection with counts one, two, three, six, and seven, and personally and intentionally discharged a firearm (§ 12022.53, subd. (c)) in connection with counts one, two, and three.
Further undesignated statutory references are to the Penal Code.
In bifurcated proceedings, the trial court found true that defendant had previously been convicted of robbery, a violent felony (§§ 211, 667.5, subd. (c)(9)), and aggravated assault with use of a firearm, a serious felony (Ariz. Rev. Stat. § 13-1204; § 1192.7, subd. (c)(31)), within the meaning of the three strikes law and the prior serious felony law (§§ 667, subds. (a), (b)-(i), 1170.12).
The trial court sentenced defendant to an aggregate prison term of 261 years to life. The sentence included consecutive indeterminate terms of 25 years to life on each of counts one, two, three, six, and seven (§ 667, subd. (e)(2)(A)), plus consecutive determinate terms of 20 years on each of counts one, two, and three for the firearm discharge enhancement (§ 12022.53, subd. (c)), 10 years on each of counts six and seven for the firearm use enhancement (§ 12022.53, subd. (b)), and 10 years on each of counts one, two, three, six, and seven due to defendant's prior serious felony convictions (§ 667, subd. (a)). The court also sentenced defendant to a consecutive term of three years on count four, doubled to six years. The court sentenced defendant to eight months on count five, stayed pursuant to section 654.
Additional facts will be set out in the Discussion as necessary.
DISCUSSION
I
Defense Counsel's Concession of Defendant's Guilt as to Counts One, Two, and Five
During closing argument, defendant's trial counsel conceded that defendant was guilty of counts one and two (the second robbery of the two Jamba Juice employees) and count five (possession of a firearm by a person previously convicted of a felony). Defendant contends that his trial counsel's concession of guilt as to those counts requires reversal because he did not waive his constitutional right to a trial. We disagree.
Before accepting a guilty plea, the trial court must advise a defendant of, and obtain a knowing, intelligent, and voluntary waiver of, the defendant's privilege against self-incrimination, the right to a trial by jury, and the right to confront the defendant's accusers. (Boykin v. Alabama (1969) 395 U.S. 238, 243; In re Tahl (1969) 1 Cal.3d 122, 132.) Defendant contends that his counsel's concession of guilt in closing argument is "tantamount to a guilty plea," requiring the advisement and waiver of his rights. In support, defendant relies upon People v. Farwell (2018) 5 Cal.5th 295. Our Supreme Court in Farwell observed, "A stipulation that admits all of the elements of a charged crime necessary for a conviction is tantamount to a guilty plea. [Citations.] Accordingly, the record must demonstrate that the defendant voluntarily and intelligently waived his constitutional trial rights. [Citations.]" (Id. at pp. 299-300.) The constitutional rights at issue "include the privilege against self-incrimination, the right to trial by jury, and the right to confrontation. [Citation.]" (Id. at p. 299.)
But Farwell is inapposite to the situation here. We agree that a stipulation of guilt relieves the prosecution of its burden to present evidence to prove defendant's guilt beyond a reasonable doubt and relieves the jury of its duty to determine defendant's culpability with respect to the charged offenses. But here, the parties did not stipulate as to defendant's guilt on any count. Counsel's argument was not evidence, as the trial court instructed the jury. And despite counsel's statements during argument, the court instructed the jury that the prosecution had the burden of proving defendant's guilt as to each charge beyond a reasonable doubt. "Thus, the prosecution was still required to present 'competent, admissible evidence establishing the essential elements' of each charge. [Citation.]" (People v. Lopez (2019) 31 Cal.App.5th 55, 64.) Therefore, we disagree that defense counsel's statements during closing argument were "tantamount to a guilty plea," requiring reversal.
Defendant raises the similar but distinct argument that his counsel's decision to admit his guilt as to counts one, two, and five violated his Sixth Amendment rights. Defendant failed to properly head this distinct argument in his brief, and therefore he has forfeited the argument. (See Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179; Cal. Rules of Court, rule 8.204, subd. (a)(1)(B).) But we exercise our discretion to consider and reject defendant's argument on the merits. (See People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.)
The Sixth Amendment guarantees criminal defendants the right to assistance of counsel in his or her defense. (McCoy v. Louisiana (2018) 584 U.S. ___ [138 S.Ct. 1500, 1507].) But while "[t]rial management is the lawyer's province," "[s]ome decisions . . . are reserved for the client—notably, whether to plead guilty, waive the right to a jury trial, testify in one's own behalf, and forgo an appeal." (Id. at p. ___ .) Thus, "[w]hen a client expressly asserts that the objective of 'his defen[s]e' is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt." (Id. at p. ___ .) But where the defendant has not objected to defense counsel's strategy of conceding guilt in a capital case, the high court has held that no blanket rule demands defendant's explicit consent to a guilt-concession strategy. (Florida v. Nixon (2004) 543 U.S. 175, 181-182, 192 [upholding guilt-concession strategy in a capital case where defendant neither consented nor objected to the strategy].)
We recently discussed whether a defense counsel's concession of guilt during closing argument violated a defendant's Sixth Amendment right recognized in McCoy in People v. Eddy (2019) 33 Cal.App.5th 472 at pages 482-483. In Eddy, a posttrial Marsden hearing revealed that defendant disagreed with his counsel's strategy of conceding manslaughter in closing argument. (Id. at pp. 481-482.) We observed that a defendant establishes a violation of his Sixth Amendment right recognized in McCoy where, "the record . . . show[s] (1) that defendant's plain objective is to maintain his innocence and pursue an acquittal, and (2) that trial counsel disregards that objective and overrides his client by conceding guilt. [Citation.]" (Id. at p. 482.)
People v. Marsden (1970) 2 Cal.3d 118.
Here, unlike Eddy, the record does not show defendant's "plain objective is to maintain his innocence and pursue an acquittal." Rather, the record is silent as to defendant's position on his counsel's closing argument. Because there is no evidence that defendant's plain objective was to maintain his innocence and pursue acquittal or that defendant's trial counsel disregarded that plain objective, we conclude defendant's counsel's remarks in closing argument did not violate his Sixth Amendment rights. Therefore, we reject defendant's claim.
Recent decisions by this court and other appellate courts also support our conclusion on this issue. (See, inter alia, People v. Marsh (2019) 37 Cal.App.5th 474; People v. Franks (2019) 35 Cal.App.5th 883.) These cases reject the arguments that (1) that reversal is required where counsel concedes guilt during argument unless defendant makes clear his intent to maintain his innocence, and (2) counsel's concession of guilt during argument is tantamount to a guilty plea. (Compare People v. Flores (2019) 34 Cal.App.5th 270, 280-283 [reversal based on McCoy where the defendant repeatedly told the court that he wanted to maintain his innocence but trial counsel nonetheless conceded the actus reus of gun possession during closing argument].)
II
Admission of Inculpatory Statements
Defendant argues the trial court prejudicially violated his federal constitutional rights by admitting into evidence statements he made to a detective because the detective failed to scrupulously honor his invocation of his right to remain silent and failed to adequately advise him of his constitutional rights. We disagree.
A. Additional Background
1. The Interrogation
At approximately 9:45 p.m., Officer Bogdan Kostyuk was dispatched to the hospital to supervise defendant as he was being treated for gunshot wounds. Kostyuk advised defendant of his Miranda rights. When Kostyuk asked defendant if he understood the advisements, defendant "moved his head up and down, indicating yes" he understood. Kostyuk then asked defendant if he wanted to provide a statement, and defendant "shook his head left to right, saying -- advising no." Defendant at no time responded verbally to Kostyuk, and Kostyuk did not continue to question him.
Miranda v. Arizona (1966) 384 U.S. 436.
Early the following morning, defendant was released from the hospital and transported to the police station. At approximately 4:00 a.m., Detective Casey Robinson and another officer reinitiated the interview with defendant.
Defendant initially complained he had not been provided food or water since his arrest. Robinson and defendant then engaged in the following colloquy:
[Robinson]: "Yes, sir. Um, you, you've been around the block a time or two, okay? I'm sure this isn't the first time you sat in an interview room talk to police, right? Not, not a trick question, but, uh, uh, so before we do anything with you we're going to read you your rights, okay? You heard your rights before? You know what your rights are?
[Defendant]: "He went and told me in the hospital.
[Robinson]: "In the hospital? Okay. Um, did, did he get through the whole rights with you?
[Defendant]: "Mm-hm.
[Robinson]: "Okay. So do I need to re-read 'em to you or are you aware still of (unintelligible) rights?
[Defendant]: "I'm aware of my rights.
[Robinson]: "Okay. Um, do - are you interested in talking to us about what happened?"
Robinson later reminded defendant: "And, and, and that's, that's your right obviously. You could tell me . . . [¶] . . . to go fly a kite, that you got nothin' to say . . . ."
Defendant then answered Robinson's questions, admitting to participating in the Jamba Juice robbery immediately preceding his arrest, shooting at the police dog, and evading Miller.
Near the end of the interrogation, defendant refused to answer a question, stating, "Because that's what - that's my right. I have a right to remain silent."
2. Procedural Background
Before trial, the prosecution requested permission to impeach defendant with his statements to Robinson if he testified on his own behalf. The prosecution confirmed that it did not intend to introduce defendant's statements in its case in chief. Defense counsel indicated that she believed defendant's statements were inadmissible because defendant was not properly advised of his Miranda warnings. But the parties did not litigate the issue due to the prosecution's representation that it would reserve the statements for impeachment purposes only.
During trial, the prosecution moved to admit portions of defendant's statements to Robinson in its case in chief. Defendant opposed the motion and argued through counsel that the prosecution previously stated it would not use defendant's statements during its case in chief, and therefore the prosecution's motion violated defendant's due process rights. He also argued that allowing the prosecution to present portions of defendant's statements would violate the rule of completeness. (Evid. Code, § 356.) Defendant did not argue in his written opposition that his statements were inadmissible for failure to adequately provide Miranda warnings or to scrupulously honor his invocation of the right to remain silent.
The court held a hearing, and both Kostyuk and Robinson testified. Defendant objected to the admission of his statements "for lack of Miranda advisements" because there was insufficient evidence that he was not either under the influence of mind-altering medications or in intolerable pain at the time Kostyuk administered the Miranda warnings. The trial court ruled that the statements were admissible, and the court admitted a redacted version of the interrogation.
B. Forfeiture and Ineffective Assistance of Counsel
Defendant acknowledges that he failed to object to the admission of his statements to Robinson on the theory he now advances on appeal. Therefore, defendant has forfeited the claim. (See People v. Huggins (2006) 38 Cal.4th 175, 198.)
Anticipating this conclusion, defendant claims in the alternative that his trial counsel's failure to object on these grounds constituted ineffective assistance of counsel. To succeed on an ineffective assistance claim, defendant must show counsel's conduct was both deficient and resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 686-694.) Where "there was no sound legal basis for objection, counsel's failure to object to the admission of the evidence cannot establish ineffective assistance." (People v. Cudjo (1993) 6 Cal.4th 585, 616.) Here, we conclude there was no sound legal basis for objection.
C. Governing Law
" 'Under California law, issues relating to the suppression of statements made during a custodial interrogation must be reviewed under federal constitutional standards.' [Citation.]" (People v. Villasenor (2015) 242 Cal.App.4th 42, 59.) " 'The basic rule of [Miranda], and its progeny, is familiar: Under the Fifth Amendment to the federal Constitution, as applied to the states through the Fourteenth Amendment, "[n]o person . . . shall be compelled in any criminal case to be a witness against himself [or herself] . . . ." [Citation.] "In order to combat [the] pressures [of custodial interrogation] and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his [or her] rights" to remain silent and to have the assistance of counsel. [Citation.] "[I]f the accused indicates in any manner that he [or she] wishes to remain silent or to consult an attorney, interrogation must cease, and any statement obtained from him [or her] during interrogation thereafter may not be admitted against him [or her] at his [or her] trial" [citation], at least during the prosecution's case-in-chief [citations].' [Citation.] It is the prosecution's burden to prove, by a preponderance of the evidence, the accused's rights under Miranda were not violated. [Citations.]" (Ibid.)
A defendant may waive the rights conveyed in the Miranda warnings " ' "provided the waiver is made voluntarily, knowingly and intelligently." [Citation.] The inquiry has two distinct dimensions. [Citations.] First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. [Citations.]' [Citations.]" (People v. Smith (2007) 40 Cal.4th 483, 501-502.)
After invocation of the right to remain silent, law enforcement must " 'scrupulously honor[ ]' " the invocation and cease questioning. (Michigan v. Mosley (1975) 423 U.S. 96, 103-104.) "This does not mean, however, the police can never renew their questioning of the suspect." (People v. Riva (2003) 112 Cal.App.4th 981, 993 (Riva).) "Ideally, the Miranda warnings should be repeated before reinitiating the interrogation of a suspect who has invoked the right to remain silent, but the failure to do so is not fatal if the 'totality of the circumstances' shows the suspect's waiver remains voluntary, knowing and intelligent.." (Ibid.)
D. Analysis
Defendant contends that Robinson did not scrupulously honor his invocation of his right to remain silent because Robinson knew or should have known he invoked his right to remain silent several hours earlier, Robinson failed to re-advise him of his Miranda rights, and Robinson interrogated him about the same crimes Kostyuk had interrogated him about at the hospital. We are not persuaded.
In People v. Warner (1988) 203 Cal.App.3d 1122, the appellate court concluded there was no Miranda violation where officers questioned the defendant the morning after he invoked his right to remain silent. The defendant invoked his right to remain silent after a proper Miranda advisement, and the officer ceased questioning. (Id. at pp. 1129-1130.) The next morning a different officer, unaware of defendant's earlier invocation of his right to remain silent, gave new, full Miranda warnings, and defendant waived his rights and agreed to talk to the officer. (Id. at p. 1130.) The court held that the defendant's first invocation of his right to remain silent had been "scrupulously honored" when the first officer ceased questioning. (Id. at p. 1129.) The court also held that the overnight interval was a sufficient period between questioning, and, absent police misconduct, the second interrogation was proper. (Id. at p. 1131.)
Similarly, here, Kostyuk "scrupulously honored" defendant's invocation of his right to remain silent by ceasing the interrogation at the hospital immediately upon defendant's invocation. Defendant attempts to distinguish Warner from the facts here by contending that Robinson knew or should have known defendant had previously invoked his right to remain silent, but the evidence does not support that assertion. While Robinson's colloquy with defendant demonstrates that he was aware Kostyuk had advised defendant of his rights, there was no testimony about whether Robinson knew defendant had invoked his right to remain silent. We cannot make inferences that lack support in the record.
We also disagree with defendant that Robinson re-approached defendant too soon after defendant's invocation of his right to remain silent or that Robinson was required to re-advise defendant of his Miranda rights. "Our Supreme Court has identified factors the trial court should consider in determining whether readvisement [of Miranda warnings] is necessary. These include 'the amount of time that has passed since the waiver, any change in the identity of the interrogator or the location of the interview, any official reminder of the prior advisement, the suspect's sophistication or past experience with law enforcement, and any indicia that he subjectively understands and waives his rights.' Any misconduct by the police in reinstituting the interrogation of course must also be taken into consideration." (Riva, supra, 112 Cal.App.4th at pp. 993-994, fns. omitted.)
In Riva, officers re-approached the defendant an hour after the defendant stated, "I don't want to say anything else right now." (Riva, supra, 112 Cal.App.4th at p. 994.) The same officer conducted the interrogations, and there was no evidence that the officer attempted to intimidate the defendant. (Ibid.) The appellate court presumed the defendant, as a college student, was at least as sophisticated as the ordinary citizen. Further, he had previous experience with law enforcement having been arrested as a juvenile. (Ibid.) The court determined that the officer was not required to "re-Mirandize" the defendant and obtain a specific waiver of his rights because the totality of the circumstances showed that the defendant's statements "were voluntary and were made after a knowing and intelligent waiver of the right to an attorney and to remain silent." (Ibid.)
Here, the time between defendant's invocation of his right to remain silent and the second interrogation--approximately six hours--was not so short that it suggests Robinson badgered or harassed defendant. While the location of the interview and identity of the interviewer changed after defendant invoked his right to remain silent, Robinson expressly reminded defendant of his Miranda rights and specifically asked defendant if he needed his rights re-read to him. Nor was the time between the interrogations so long that defendant would have forgotten his rights as advised by Kostyuk; indeed, at the beginning of his conversation with Robinson, defendant affirmatively stated that he remembered being advised of his rights in the hospital and he knew his rights. He also affirmed that he knew his rights near the end of the interview. We discern no misconduct by Robinson or other officers, and defendant alleges nothing beyond what we have already discussed.
While certainly we agree that the best practice is to re-advise defendant of his Miranda warnings upon initiating an interview, here the record shows the detective did not fail to scrupulously honor defendant's invocation of his right to remain silent and did adequately advise him of his constitutional rights. Thus any objection to admission of defendant's statements to Robinson on these bases would not have been well taken. Accordingly, defense counsel's performance was not deficient in regard to her failure to challenge admission of defendants' statements on the bases articulated on appeal, and defendant's claim of ineffective assistance of counsel fails.
III
Substantial Evidence of Prior Conviction
In 2006 defendant was convicted of aggravated assault in Arizona. The trial court found that the 2006 conviction constituted a prior strike for purposes of California's three strikes law because the elements of the Arizona conviction are equivalent to a conviction for assault with a deadly weapon under California Penal Code section 245, subdivision (a)(2), a serious felony and a strike under California law. (§§ 1192.7, subdivision (c)(31), 1170.12, subd. (b)(1), 667, subd. (d).) Defendant claims the trial court's finding was based on insufficient evidence because the Arizona conviction could have been predicated on reckless conduct, which he contends is insufficient to support a conviction for an assault with a deadly weapon in California. We disagree.
For an out-of-state conviction to support a serious-felony sentence enhancement, the "crime (1) must be such that, 'if committed in California, [it would be] punishable by imprisonment in the state prison' (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2)), and (2) must 'include[ ] all of the elements of the particular felony as defined in' section 1192.7(c) (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2)." (People v. Warner (2006) 39 Cal.4th 548, 552-553.)
The indictment related to defendant's 2006 conviction read, in part, that defendant "using a gun, a deadly weapon or dangerous instrument, intentionally, knowingly or recklessly caused a physical injury to [the victim]." The indictment also alleged, "the offense charged in this count is a dangerous felony because the offense involved the discharge, use, or threatening exhibition of a gun, a deadly weapon or dangerous instrument, and\or the intentional or knowing infliction of serious physical injury upon [the victim]." The transcript of the plea colloquy shows that defendant pleaded guilty to aggravated assault, and he admitted the following as the factual basis: "On June 30, 2006, . . . , Mr. Foster had a firearm, and that he did fire that firearm and he recklessly caused, . . . , he intentionally, knowingly, or recklessly caused a physical injury to [the victim]."
In Arizona, "[A] person commits assault by . . . [i]ntentionally, knowingly or recklessly causing any physical injury to another person." (Ariz. Rev. Stat., § 13-1203, subd. (A)(1).) As relevant here, a person commits an aggravated assault if he or she commits an assault as defined by Arizona Revised Statute section 13-1203 and either "causes serious physical injury to another" or "uses a deadly weapon or dangerous instrument." (Ariz. Rev. Stat., § 13-1204, subds. (A)(1) & (2).)
The trial court found that the Arizona conviction was equivalent to a conviction for assault with a deadly weapon under section 245, subdivision (a)(2), which provides: "Any person who commits an assault upon the person of another with a firearm shall be punished . . . ." As relevant here, the elements of assault with a deadly weapon under section 245, subdivision (a)(2) are: (1) 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; (2) Defendant did that act willfully; (3) When defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and (4) When defendant acted, he had the present ability to apply force . . . with a deadly weapon. (See CALCRIM No. 875; People v. Golde (2008) 163 Cal.App.4th 101, 121.)
Defendant contends that defendant's Arizona conviction was only necessarily a plea to "recklessly discharging a firearm causing physical injury," which he argues does not encompass conduct that was intentional and knowing. In support, defendant relies upon People v. Williams (2001) 26 Cal.4th 779 (Williams), in which our Supreme Court stated that "mere recklessness or criminal negligence is still not enough" to convict a defendant of assault "because a jury cannot find a defendant guilty of assault based on facts he should have known but did not know [citation]." (Id. at p. 788.) But the court in Williams also observed that the term "recklessness" in that context was used "in its historical sense as a synonym for criminal negligence, rather than its more modern conception as a subjective appreciation of the risk of harm to another. [Citation.]" (Id. at p. 788, fn. 4.)
In describing the intent required to support an assault conviction, the court observed that assault with a deadly weapon is a general intent crime. (Williams, supra, 26 Cal.4th at p. 788.) In other words, the requisite intent is the intent to engage in a purposeful action that is objectively likely to result in the application of physical force to another person. (Id. at p. 790.) The issue before us, then, is whether "recklessly" as defined in Arizona encompasses the intent required to support an assault conviction in California.
Under Arizona law, " 'Recklessly' means, with respect to a result or to a circumstance described by a statute defining an offense, that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but who is unaware of such risk solely by reason of voluntary intoxication also acts recklessly with respect to such risk." (Arizona Rev. Stat., § 13-105, subd. (10)(c).) Therefore, under Arizona's definition of "recklessly," a person "recklessly causes" a physical injury to another where the person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur. (Ibid.)
We conclude that the term "recklessly" as used in the Arizona aggravated assault statute satisfies the intent requirement for assault with a deadly weapon as defined by section 245, subdivision (a)(2). As stated in Williams, the intent required to support an assault conviction is the intent to engage in a purposeful action that is objectively likely to result in the application of physical force to another person. (Williams, supra, 26 Cal.4th at p. 790.) To have acted recklessly in Arizona, defendant must have been aware of a substantial and unjustifiable risk that physical force will be applied to the victim, and defendant must have consciously disregarded that risk in causing physical injury to another person. (See Arizona Rev. Stat., § 13-105, subd. (10)(c).) In other words, by recklessly causing physical injury under Arizona law, defendant was aware of and acted in conscious disregard of a substantial and unjustifiable risk. That intent satisfies the intent required to support assault with a deadly weapon in California.
Because defendant's 2006 Arizona conviction for aggravated in assault would have been punishable by imprisonment had defendant committed the crime in California, and the Arizona crime of aggravated assault includes each element of the crime of assault with a deadly weapon under California law, the trial court properly determined that defendant's 2006 Arizona aggravated assault conviction constituted a serious felony conviction for purposes of the relevant California sentencing provisions.
IV
Senate Bill No. 1393
Defendant contends Senate Bill No. 1393 (2017-2018 Reg. Sess.) applies retroactively to his case. The People properly concede the matter.
On September 30, 2018, the Governor signed Senate Bill No. 1393, which, effective January 1, 2019, amends sections 667, subdivision (a) and 1385, subdivision (b) to allow a trial court to exercise its discretion to strike or dismiss a prior serious felony allegation for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.) Under the pre-2019 versions of these statutes, the court was required to impose a five-year consecutive term for "any person convicted of a serious felony who previously has been convicted of a serious felony" (former § 667, subd. (a)), and the court had no discretion "to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667" (former § 1385, subd. (b)).
The statutory changes of Senate Bill No. 1393 apply retroactively to any case that is not final on January 1, 2019, under the rule of In re Estrada (1965) 63 Cal.2d 740. "The Estrada rule rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not." (People v. Conley (2016) 63 Cal.4th 646, 657.)
The same inference of retroactivity applies when an amendment ameliorates the possible punishment. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308.) When a statutory amendment " 'vests in the trial court discretion to impose either the same penalty as under the former law or a lesser penalty,' " there is "an inference that the Legislature intended retroactive application 'because the Legislature has determined that the former penalty provisions may have been too severe in some cases and that the sentencing judge should be given wider latitude in tailoring the sentence to fit the particular circumstances.' " (Ibid., quoting People v. Francis (1969) 71 Cal.2d 66, 76.)
Under the Estrada rule, as applied in Francis and Lara, we infer as a matter of statutory construction that the Legislature intended Senate Bill No. 1393 to apply to all cases not yet final on January 1, 2019. (People v. Garcia (2018) 28 Cal.App.5th 961, 973.) Accordingly, we remand the matter to the trial court for the limited purpose of the exercise of its discretion as to whether to strike the five-year enhancement.
V
Abstract of Judgment
At sentencing, the trial court imposed determinate sentences of 10 and 20 years for the firearm use and firearm discharge enhancements. (§ 12022.53, subds. (b) & (c).) But the abstract of judgment incorrectly reflects that the court imposed sentences of "10 yrs to life" and "20 yrs to life" for those enhancements. We have the inherent power to grant requests to correct errors in the abstract of judgment. (People v. Hong (1998) 64 Cal.App.4th 1071, 1075-1076.) We direct the trial court to correct these errors on the new abstract of judgment.
VI
Count Five Unauthorized Sentence
The trial court erroneously imposed a consecutive sentence of eight months on count five, stayed pursuant to section 654.
In the interests of judicial economy, we have proceeded in the absence of supplemental briefing. Any aggrieved party may invoke the remedy provided by Government Code section 68081.
Section 1170.1, subdivision (a) applies to sentencing of offenders convicted of multiple felonies and requires the court to impose a principal term, based on the offense with the longest term, and then impose subordinate terms for each consecutive offense "consist[ing] of one-third of the middle term." But "[t]he one-third-the-midterm rule of section 1170.1, subdivision (a), only applies to a consecutive sentence, not to 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 his criminal liability" in the event that the stay is lifted. (Ibid.) We have inherent authority to correct an unauthorized sentence by modifying the judgment. (People v. Relkin (2016) 6 Cal.App.5th 1188, 1197-1198 [correcting a judgment on the appellate court's own initiative to impose a full midterm sentence, rather than a one-third of the midterm sentence, on a count stayed under § 654].)
Here, the trial court was required to impose a full-term sentence of two years, doubled to four years, before staying the sentence under section 654. (§§ 29800, 1170, subd. (h)(1).) Therefore, we modify the judgment to impose a sentence of four years for count five, stayed pursuant to section 654.
DISPOSITION
The judgment is modified to impose a sentence of four years on count five, stayed pursuant to section 654. As modified, the judgment is affirmed. The matter is remanded to allow the trial court to exercise its sentencing discretion under sections 1385 and 667, subdivision (a) to strike or dismiss the prior serious felony enhancement and amend and correct the abstract of judgment. The trial court is directed to prepare a new abstract of judgment at the conclusion of proceedings on remand and to forward a certified copy to the Department of Corrections and Rehabilitation.
/s/_________
Duarte, J. We concur: /s/_________
Raye, P. J. /s/_________
Hull, J.