Opinion
B205668
8-31-2009
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY TYRONE JONES, Defendant and Appellant.
Rita L. Swenor, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
A jury convicted Jeffrey Tyrone Jones of corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a); (count 1)); assault by means likely to produce great bodily injury (GBI) (§ 245, subd. (a)(1); (count 2)); and making criminal threats (§ 422; (count 3)). The jury also found he personally inflicted GBI within the meaning of section 12022.7, subdivision (e).
All further section references are to the Penal Code.
Appellant contends: (1) denial of his request for self-representation violated his right to represent himself (Faretta v. California (1975) 422 U.S. 806 (Faretta); and (2) the trial courts refusal to allow his expert to testify denied him his constitutional right to present a defense. We affirm the judgment but remand the matter for resentencing.
FACTUAL AND PROCEDRUAL BACKGROUND
Prosecution Evidence
Events prior to the charged offenses
In January or February 2007, Lorraine W. and appellant began dating. On one occasion, after she refused appellants request to borrow her truck, he threw the keys in her face, pulled her out of the truck, and threw her on the ground. She sustained a scar on her left check where the keys struck her. In March 2007, Lorraine was driving appellant back to Los Angeles from her home in Downey when he became angry. After she pulled over at his request, appellant threw her on the ground and called her a "f—king bitch." Appellant then drove them to Los Angeles, after which he apologized and said that he was working on his anger. Lorraine agreed to his request to stay with her for a week or two. Appellant moved into her Downey home in March or April 2007. On Mothers Day in May 2007, appellant became angry when Lorraine refused to meet with some of his friends. He struck her in the face with his closed fist hard enough to leave a bruise.
In June 2007, only weeks after Lorraine had hernia repair surgery, appellant and his brother helped her to move into an apartment in Long Beach. About this time or a week later, Lorraine asked appellant to drive her somewhere. He became angry and shoved her with both hands against the wall. Lorraine told appellant "to move out every week."
The charged offenses
On July 29, 2007, appellant became angry with Lorraine because she said that she would never be in a long-term relationship. Appellant left to drop off his four children in Los Angeles. Upon his return, he told Lorraine she disappointed him. He then told her, "you f—king bitches are all alike," and began hitting her in the head, face, and nose, hard enough to cause her to see stars and bleed profusely from her nose. While Lorraine was putting cold water on her face in the bathroom, appellant entered, told Lorraine she had broken her nose, and that he would take her to the hospital. When Lorraine responded that appellant could not take her to the hospital because he would go to jail, he kicked her left side with such force that it "took [her] breath away," and she fell into the bathtub. After yanking her out, appellant said he was "going to f—king kill" her. Lorraine believed him and was terrified. Appellant was excited by the violence and wanted to have sex. After she complied with his demand for sex, appellant told Lorraine twice, "Ha, Im thinking about just killing you."
Norma M., Lorraines sister, testified that on July 30, 2007, she went to visit Lorraine. When Lorraine opened her door, Norma observed that "[h]er nose was shattered and bent in, and she had black eyes." She had never observed such bruising on Lorraine before. Norma had just seen her sister a day or two days earlier and she had no injuries. Appellant stood facing Lorraine while she was at the door. Appellant was usually not around when the two sisters interacted. Norma did not believe her sister when she explained she had tripped and struck her face on a dresser.
Between July 29 and August 7, 2007, appellant had Lorraines truck, which prevented her from leaving her apartment. On August 7, Lorraine found an opportunity to leave. Appellant called her repeatedly, and demanded that she come home. Lorraine asked if appellant was going to hit her. Appellant responded that he would not do anything in front of his children, but he could not guarantee what would happen when the children were not around.
In the early morning hours of August 7, 2007, Lorraine contacted the police and met Long Beach police officers at a 7-Eleven store. Long Beach Police Officer Thomas Vriens spoke with Lorraine and observed, "[s]he appeared to have two black eyes, a . . . dark bruise on her right biceps as well as her nose appeared to be disheveled, kind of an awkward look to it like shed been hit in the nose." He noted, "[s]he also complained of a broken nose and a fractured rib." Photographs were taken; one reflected Lorraines swollen eyes and a bruise under her right eye. At trial, Lorraine pointed out that a scar over her nose bridge was not shown in the photograph due to its poor quality. A second photograph depicted the mark on her nose and also the bruising around her right eye. The remaining photograph depicted a bruise on her right forearm from where appellant had grabbed her to remove her from the bathtub. Vriens testified that the second photograph appeared "pretty much about the same" as what he recalled seeing, but the "[i]njuries probably looked a little bit worse in person."
At an emergency room of the Lakewood Regional Medical Center the next day, Leticia Carranza, a domestic violence detective, took additional photographs of Lorraines injuries. One photograph revealed that Lorraines left eye was swollen and bruised, while another depicted a bruise on her right forearm. The last depicted Lorraines rib area where she complained appellant had kicked her. Lorraine told Carranza that "it was too painful to sit;" "her ribs were painful to the touch;" and "it was difficult for her to breathe and to manipulate her body[.]" Carranza noted it appeared "very difficult" for Lorraine to move and breathe.
William W. Worth, a nurse practitioner in the medical centers emergency department, testified that when he examined Lorraine on August 7, 2007, he observed "a woman who had multiple contusions with some resolving ecchymosis [or] black and blue to the facial area and swelling to the nasal bridge," and it appeared that the injury occurred about a week earlier. X-rays of her ribs did not depict any fractures but the x-ray of her nasal area revealed "a fracture in the bridge of the nose." On cross-examination, Worth testified that he could not tell based on observation whether Lorraines fractures were exactly one day, one week, or two weeks old.
Defense Evidence
The defense called Odell Jones, appellants brother, and Clifton Sanders, appellants friend, to show that around the time of the July 29 reported incident and days afterward, appellant and Lorraine acted normally and seemed peaceful and happy. Both men testified that Lorraine did not appear to be injured.
Meaning no disrespect, but for ease of reference, we will refer to appellants brother as "Odell."
Rebuttal
Lorraine wore theatrical makeup to disguise her bruises; she also wore an abdominal binder, which helped her move despite her injuries.
Court trial and sentencing
Appellant waived his right to a jury trial on the prior convictions and the trial court found true two prior convictions for corporal injury to a cohabitant (§ 273.5, subds (a), (e)(1)), and a strike under the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
Appellant was sentenced to prison for an aggregate term of 14 years and four months, comprised of: the middle term of four years on count 1, doubled, plus a consecutive three-year term pursuant to section 12022.7, subdivision (e); one-third the middle term of one year on count 2, doubled and ordered consecutive; a consecutive term one-third the middle base term of eight years, doubled and also ordered to run consecutive on count 3. Amongst other fees, appellant was ordered to pay one $20 court security fee (§ 1465.8, subd. (a)(1).)
This timely appeal followed.
DISCUSSION
I. The Trial Court Did Not Abuse its Discretion in Denying Appellants Untimely Request for Self-representation
Appellant contends the trial court erred in denying his request to represent himself "on the sole basis that he wanted a short, two-week continuance to prepare for trial." The court did not abuse its discretion in refusing appellants tardy request for self-representation.
A. Background
On January 8, 2008, the matter was called for jury trial. A panel of 35 prospective jurors was ordered for that afternoon. The People announced ready. After a brief colloquy between defense counsel, appellant, and the court, about appellants prior strikes and a Romero motion, appellant announced that he wanted to "exercise [his] Faretta rights and go pro per and represent [him]self co-counsel [sic]." When the court stated that trial would start that day, appellant replied that he was not ready. The court advised appellant that the trial would not be continued; trial would start that day; and the decision was appellants alone as to whether he wanted to represent himself. Appellant responded that he had been incarcerated since August 7, 2007, and very important witnesses were required for trial. The court admonished that he had known "about this" since August 7, and he could not seek a continuance "on the day of trial."
Appellant complained his attorney also had known since August 7 but he had "not retained the important witnesses." Deeming his comment to be a Marsden motion, the court held a hearing and denied the motion. (People v. Marsden (1970) 2 Cal.3d 118.)
The trial court next advised appellant there would be no continuance to allow him additional time to prepare for trial; if he wanted to represent himself, he could do so that afternoon when the jury would be selected; and the decision was "totally up to [him]." The court noted: "This matter was last on calendar December 17th. We had extensive discussions in regards to resolving the matter on both sides. Both sides participated in that, both sides made offers and counter offers [sic]. And there was no resolution of the matter. So all offers were withdrawn, and we set a date certain for trial. [¶] This matters been pending since the summer of 2007, and the arraignment [was in] in superior court in September of 2007. So theres been a lot of time in regards to additional discovery, additional investigation, and plea negotiations. Theres not going to be anything further. Were going to go to trial on this matter as we indicated in December."
When asked what he wanted to do, Appellant responded he would "like to read a law book. Can I borrow your law book? Id like to read something out of it." The trial court denied his request, reminding him the court would not give him any additional time, and asked whether appellant wanted to represent himself or proceed with his attorney. Appellant responded he wanted to represent himself and requested "two weeks to prepare [him]self." The court ruled: "Im not going to give you a continuance, sir. If thats the only condition that you want to represent yourself, then that request is denied."
B. Discussion
"[I]n order to invoke the constitutionally mandated unconditional right of self-representation a defendant in a criminal trial should make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial." (People v. Windham (1977) 19 Cal.3d 121, 127-128, fn. omitted (Windham).) "Where a request is untimely without good reason, a trial court is not required to grant it against its own better judgment." (People v. Hill (1983) 148 Cal.App.3d 744, 759.) A motion for self-representation, made on the day a case is set for trial, is addressed to the sound discretion of the trial court. (People v. Burton (1989) 48 Cal.3d 843, 853 (Burton).)
A motion on the eve of trial is untimely. "[A] defendant should not be permitted to wait until the day preceding trial before he moves to represent himself and request a continuance in order to prepare for trial without some showing of reasonable cause for the lateness of the request. In such a case the motion for self-representation is addressed to the sound discretion of the trial court which should consider relevant factors such as whether or not defense counsel has himself indicated that he is not ready for trial and needs further time for preparation." (Windham, supra, 19 Cal.3d at p. 128, fn. 5.)
Factors to be evaluated in ruling on an untimely motion include: "the quality of counsels representation of the defendant, the defendants prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion." (Windham, supra, at p. 128.) Nonetheless, "ultimately the trial courts discretion is to be exercised on the totality of the circumstances, not strictly on the listed factors." (People v. Lawrence (2009) 46 Cal.4th 186, 192.) It is not the case that "the trial court must review on the record each factor . . . or that any one factor is necessarily determinative. The standard is whether the courts decision was an abuse of its discretion under the totality of the circumstances [citation], not whether the court correctly listed factors or whether any one factor should have been weighed more heavily in the balance." (Id. at p. 196.)
In view of the totality of these circumstances, the trial court acted well within its discretion in denying appellants self-representation request contingent on a two-week continuance. Defense counsel did not seek additional time to prepare and in fact indicated his readiness to proceed to trial. Appellants sole reason for representing himself was his disagreement with defense counsel about which witnesses to call. He does not claim these witnesses were newly discovered or that he only recently learned that defense counsel did not intend to call these witnesses. Moreover, the trial court inquired of defense counsel regarding appellants claim that he refused to call appellants desired witnesses and was satisfied with counsels explanations. Appellant does not assign as error the courts denial of his Marsden motion, and a defendants frustration with counsels refusal to conduct the defense as desired is not in itself a compelling reason to allow for self-representation. (See People v. Williams (1970) 2 Cal.3d 894, 905 [disagreement between defendant and attorney on tactical choices which are within province of attorney—such as whether to call witnesses—is not a basis for substitution of counsel].)
Appellant also offers no reason why he could not have made his Faretta motion earlier rather than on the very day of trial. (See, e.g., People v. Clark (1992) 3 Cal.4th 41, 99-100 [court had discretion to deny Faretta motion made on the eve of trial; trial was continued on day-to-day basis in expectation that jury selection could begin at any time]; Burton, supra, 48 Cal.3d at pp. 852-854 [court had discretion to deny Faretta motion made the day the matter was sent to trial department for pretrial motions and jury trial, both counsel answered ready, and voir dire began the next day]; People v. Hall (1978) 87 Cal.App.3d 125, 130-131 [court had discretion to deny Faretta motion made after the case was sent out for trial, the parties announced ready, and just before jury selection].) The trial court did not abuse its discretion in denying appellants untimely Faretta motion.
II. Reversal for Preclusion of Expert Testimony is Not Warranted
Appellant next contends the trial court erred by excluding the testimony of a forensic pathologist who would have testified about the age of Lorraines injuries. Appellant acknowledges he failed timely to disclose the witness as statutorily required. However, he argues that in the absence of a finding that such failure was willful, exclusion of the witness was inappropriate. We conclude that even if the trial court erred in excluding the testimony, any error was harmless.
A. Background
On January 10, 2008, at a side bar conference during the Peoples case in chief, defense counsel stated: "I intend to call among my witnesses, as I told [the prosecutor] before the trial, a forensic pathologist that the court appointed. And I submitted a copy of the report, and it goes basically . . . in line with the testimony by [Lorraine] and what I anticipate will be the testimony by the medical personnel here about the extended nature of [her] injuries." He offered: "This forensic pathologist is going to testify about the age of injuries based on his observations, the medical report comments that were made, omissions that were not — were a part of the report and inconsistencies."
The medical report was not entered into evidence.
In response to the courts inquiry, defense counsel admitted he did not give the report to the prosecutor 30 days in advance. The prosecutor added he had not heard "boo of this." Although defense counsel previously indicated that he was checking into a pathologist, the prosecutor "[n]ever heard a name or whether or not hes going to call [one], [and he] never discovered [a name] on a witness list or potential." The prosecutor reported that the defense disclosed the expert and provided his curriculum vitae for the first time that morning. He protested that he had had no time to prepare for the expert, and asked the court to preclude the expert from testifying.
When admonished by the court that he could not give the prosecutor "a CV five minutes before you call this witness[,]" defense counsel indicated the witness "would testify this afternoon." The court asked defense counsel to consider if it were "the other way around. What if the People told you five minutes ago that this afternoon theyre going to call a pathologist and testify to this. What would you be saying to me right now?" Defense counsel admitted he "would do what [the prosecutor] is doing." The court agreed and announced: "I`m going to grant his motion . . . if he didnt have any more notice than that of CV or otherwise or intended testimony I would grant your motion if you made it against him."
As defense counsel began to "make a record," the trial court interrupted and asked if the defense ever mentioned the experts "name in front of the jury the other day[.]" Defense counsel conceded he did not and explained: "The problem was that I didnt know if this pathologist was going to even be available." The court stated: "I know. But you got to let the other side know and prepare in case they are." After further explaining the expert was on vacation and he himself had been ill, defense counsel acknowledged: "But, nevertheless, I understand the courts position."
B. Discussion
"[S]ection 1054.3, subdivision (a), requires in part that the defendant (and his or her attorney) disclose to the prosecution the `names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons . . . . The requirement that the defense timely disclose persons whom it `intends to call as witnesses at trial applies to `"all witnesses it reasonably anticipates it is likely to call." [Citation.] In addition, section 1054.7 provides in relevant part that the disclosure of witness names and addresses must `be made at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred . . . . [S]ection 1054.5, subdivision (b), provides in part that `Upon a showing that a party [here, the defense] has not complied with Section . . . 1054.3 and upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary to enforce the provisions of this chapter, 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. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure." (People v. Riggs (2008) 44 Cal.4th 248, 305-306.)
Appellant focuses on section 1054.5, subdivision (c), which provides that "[t]he court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted." In People v. Edwards (1993) 17 Cal.App.4th 1248, the court considered the availability of preclusion sanctions in light of two United States Supreme Court cases, Taylor v. Illinois (1988) 484 U.S. 400 (Taylor), and Michigan v. Lucas (1991) 500 U.S. 145 (Michigan). The Edwards court "interpret[ed] these authorities to instruct that preclusion sanctions may be imposed against a criminal defendant only for the most egregious discovery abuse. Specifically, such sanctions should be reserved to those cases in which the record demonstrates a willful and deliberate violation which was motivated by a desire to obtain a tactical advantage at trial such as the plan to present fabricated testimony in Taylor." (Id. at p. 1263.) Appellant asserts that the trial court erred by failing to find that the discovery violation was willful, and further that the trial court could not exclude the pathologists testimony without considering a lesser sanction.
In Taylor, the Court concluded a preclusion sanction was justified, because the defendant deliberately violated the discovery order to gain a tactical advantage and it was probable the proffered evidence had been fabricated. (Taylor, supra, 484 U.S. at p. 417.) In Michigan, the Court explained: "We did not hold in Taylor that preclusion is permissible every time a discovery rule is violated. Rather, we acknowledged that alternative sanctions would be `adequate and appropriate in most cases. [Citation.] We stated explicitly, however that there could be circumstances in which preclusion was justified because a less severe penalty `would perpetuate rather than limit the prejudice to the State and the harm to the adversary process. [Citation.] Taylor, we concluded, was such a case. The trial court found Taylors discovery violation amounted to `willful misconduct and was designed to obtain `a tactical advantage. [Citation.] Based on these findings, we determined that, `[r]egardless of whether prejudice to the prosecution could have been avoided by a lesser penalty, `the severest sanction [wa]s appropriate. [Citation.]" (Michigan, supra, 500 U.S. at p. 152.)
We do not agree with the People that appellant forfeited these arguments by failing to object below. Appellant was attempting to affirmatively introduce evidence, which the trial court excluded. Further, when defense counsel began to "make a record" of his objection, the trial court interrupted. Under these circumstances, we cannot construe defense counsels statement that he understood the trial courts ruling as acquiescing or agreeing with the ruling excluding the expert testimony.
Respondent acknowledges that Edwards and other intermediate appellate case authority, namely, People v. Gonzales (1994) 22 Cal.App.4th 1744; People v. Hammond (1994) 22 Cal.App.4th 1611; and People v. Jackson (1993) 15 Cal.App.4th 1197, require a finding that nondisclosure was willful in hope of gaining a tactical advantage in order for exclusion to be considered the appropriate sanction. However, Respondent contends the reasoning of these cases is flawed because they rely on Taylor and Michigan, which "do not mandate that a willfulness finding is required if witness-preclusion is a sanction imposed."
We need not resolve this issue. Absence of the proffered expert testimony to refute the evidence that appellant had assaulted and seriously injured Lorraine on July 29, 2007, was both nonprejudicial (People v. Watson (1956) 46 Cal.2d 818, 836) and in fact harmless (Chapman v. California (1967) 386 U.S. 18, 24). (See People v. Riggs, supra, 44 Cal.4th at p. 311.)
Defense counsel stated that the expert forensic pathologist was expected to testify "in line with" Lorraines testimony about the "extended nature" of her injures, and about the age of the injuries. This testimony would presumably have been offered to bolster appellants defense that Lorraines injuries did not occur on July 29, 2007. However the jury was allowed to find that the incident occurred on or around July 29. In fact the trial court instructed the jury with CALCRIM No. 207, which informed the jurors that the People were required to prove only that the crime happened reasonably close to July 29, 2007. (People v. Jennings (1991) 53 Cal.3d 334, 358-359; People v. Starkey (1965) 234 Cal.App.2d 822, 827.) Thus, expert testimony "in line with" Lorraines testimony, and suggesting that the injuries may not have been sustained on July 29, 2007, would have been of little help in the face of the overwhelming evidence that Lorraine sustained her injuries reasonably close to July 29. There was no evidence suggesting that appellant had an alibi on July 29, 2007, and could not have inflicted injuries upon Lorraine on that date. Further, there was no indication that the pathologist would have opined that Lorraines injuries were self-inflicted, as appellant implied.
Appellant was also able to present this defense through other means. He presented eyewitness evidence tending to show that about and shortly after July 29, appellant and Lorraine appeared friendly; Lorraine did not appear to be bruised or swollen; and she did not complain of any pain. For example, Odell testified that about July 29, 2007, he rode with appellant and Lorraine to a dance. The two did not appear angry toward one another, and Lorraine did not act fearful of appellant. They were talking normally and laughed together. At the dance, Odell did not observe any injuries to Lorraines body, specifically to her eye, nose, or arms. She did not complain of any bodily injuries or of trouble sitting. Odell saw Lorraine move her feet, hips, arms, and upper body, including her neck and head, as she danced to fast music.
Odell also testified that on or around August 3, 2007, he again rode with appellant and Lorraine to a dance and observed her to be uninjured. Lorraine danced and interacted normally with appellant. That night, Odell took a photograph of Lorraine at the dance with a cell phone camera. From the photograph, it did not appear that her eyes had any black or blue marks or that her eyes or nose were swollen. Odell further testified that he saw Lorraine again on August 5, 2007. According to Odell, Lorraine did not appear injured, she did not seem afraid of appellant, and the two interacted peacefully and appeared happy.
Similarly, Sanders testified that Lorraine, appellant, and appellants children were his guests at an August 5, 2007 celebration. They acted as if they were family, and everyone laughed and enjoyed themselves. He did not remember seeing any injuries to Lorraines eyes or nose, and she did not complain of any bodily pain or difficulty in sitting during the two hour event. Afterward, Lorraine, appellant, and the children all left together. Defense counsel also elicited testimony from nurse practitioner Worth that he could not identify exactly when Lorraine sustained the injuries he observed. Thus, appellant was able to present his defense that the injuries might not have happened on July 29, 2007. The jury choose not to believe this defense; further evidence would not have changed this result.
This is especially true given there was overwhelming evidence of appellants guilt. There was uncontroverted evidence that prior to the July 29, 2007 incident, appellant violently struck or shoved (or both) Lorraine on four separate occasions. Additionally, the testimony of Vriens, Carranza, Worth, and Norma constituted very strong evidence corroborating Lorraines account of appellants violent attack on her person and the resulting serious bodily injury she sustained on or around July 29, 2007. Even if the trial court erred in excluding the pathologists testimony, we conclude that the error was nonprejudicial and harmless.
III. Reversal of Sentence and Resentencing is Mandated
We conclude that reversal of appellants sentence and remand for resentencing is mandated to correct certain errors: First, as to count 1, the evidence does not support the trial courts section 273.5, subdivision (e)(1) finding. Second, it appears there was a mix-up about imposition of sentence on the GBI enhancement. The court imposed a three-year sentence enhancement for GBI on count 1, though no GBI finding (§ 12022.7(e)) was returned by the jury on it. On count 2, the jury did return a true finding on the GBI enhancement, but the trial court did not impose the three-year enhancement on it. Finally, it appears the trial court failed to impose a $20 court security fee for each of appellants three convictions.
Pursuant to Government Code section 68061, we invited the parties to submit supplemental briefing on each of these issues.
A. The Section 273.5(e)(1) Finding was Unsupported by Evidence
The information alleged in count 1 that "on or about July 29, 2007," appellant committed the crime of corporal injury resulting in a traumatic condition on his cohabitant, Lorraine, in violation of section 273.5, subdivision (a). It further alleged that pursuant to section 273.5, subdivision (e)(1), appellant had, "within the past 7 years, suffered" two convictions for violating section 273.5, subdivision (a), one in September 1996 and another in August 1997. The jury found appellant guilty as charged of committing corporal injury to cohabitant (§ 273.5(a)) "on or about July 29, 2007." The trial court found true both priors alleged under section 273.5, subdivision (e)(1). Unfortunately, this finding is not supported by the evidence. Neither the September 1996 nor the August 1997 conviction occurred within seven years of the current corporal injury that occurred on or about July 29, 2007. Accordingly, the true finding on section 273.5, subdivision (e)(1) is vacated.
Section 273.5 prescribes a triad of two, three of four years. If the special allegation in subdivision (e)(1) is found true, the triad increases to two, four or five years. On count 1, the court imposed a four-year middle term. A middle term of four years is inapplicable in the absence of a finding under section 273.5, subdivision (e)(1) that the current corporal acts occurred within seven years of a qualifying prior conviction. The case thus is remanded to the trial court for imposition of sentence on the conviction for section 273.5, subdivision (a) in count 1, without consideration of the section 273.5, subdivision (e)(1) finding.
B. The GBI Enhancement Must Be Imposed on Count 2, Not Count 1
The information alleged as to counts 1 and 2 that appellant personally inflicted GBI on Lorraine "under circumstances involving domestic violence" within the meaning of section 12022.7(e). The jury found true this GBI allegation only as to count 2. The trial court therefore should have imposed the GBI enhancement on count 2 instead of count 1. Respondent concedes this error and the case is remanded to effectuate this change.
C. Single $20 Court Security Fee for Three Convictions Error
Appellant suffered three convictions but the trial court only imposed a single $20 court security fee. As the parties acknowledge, a $20 court security fee must be imposed for each conviction. (§ 1465.8, subd. (a)(1); People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) Respondent concedes this error as well.
D. Remand for Resentencing Necessary
In view of the above, the matter must be remanded for resentencing. (People v. Scott (1994) 9 Cal.4th 331, 354.) On remand, the trial court is directed to vacate its true finding on the section 273.5, subdivision (e)(1) allegation and the GBI enhancement on count 1. In resentencing appellant on count 1, the court is directed to select a term pursuant to section 273.5, subdivision (a). On count 2, the court is directed to impose a GBI enhancement based on a term set forth in section 12022.7, subdivision (e), and vacate the imposition of the GBI enhancement on count 1. Upon resentencing, the trial court must select count 2 as the base term. (Penal Code, § 654, subd. (a).) The court also is directed to substitute $60 in place of $20 as the amount of the court security fee.
DISPOSITION
Appellants sentence is reversed, and the matter is remanded for resentencing in accordance with the views expressed in this opinion. In all other respects, the judgment is affirmed.
We concur:
RUBIN, Acting P. J.
FLIER, J.