Opinion
F070173
03-15-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBERT B. KLOPPENBURG, Defendant and Appellant.
William C. Whaley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCR012041)
OPINION
APPEAL from a judgment of the Superior Court of Madera County. Charles A. Wieland, Judge. William C. Whaley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Following an incident in which he stabbed two men and then rammed his truck into a car, defendant Robert Brandon Kloppenburg was charged with one count of willful, deliberate and premediated attempted murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a)) (count 1); two counts of assault with a deadly weapon (§ 245, subd. (a)(1)) (counts 2 and 3); and one count of felony vandalism (§ 594, subd. (a)) (count 6). In addition, as to count 1, the information alleged an enhancement for the use of a deadly or dangerous weapon (§ 12022, subd. (b)(1)), and the information alleged that defendant suffered two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(e)) and served two prior prison terms (§ 667.5, subd. (b)). Defendant pled not guilty and not guilty by reason of insanity.
Further statutory references are to the Penal Code unless otherwise noted.
Count 1 was the attempted murder of victim Michael Babcock, count 2 was assault on victim Matthew Nicholson with a knife and count 3 was assault on victim Babcock with a motor vehicle.
Defendant was originally charged with five counts; two were dismissed during trial and the information was amended.
In the guilt phase, the jury deadlocked on the attempted murder count, convicted defendant of the assault and vandalism counts, and found true a weapon enhancement to the assault counts. The prosecutor subsequently dismissed the attempted murder count.
The discrepancy between the weapon enhancement to count 1 as alleged in the information and the jury's verdicts on the enhancement on counts 2 and 3 is addressed in part III.
In the sanity phase, the jury deadlocked nine-to-three in favor of finding defendant not guilty by reason of insanity and the trial court declared a mistrial. The sanity phase was subsequently retried in a court trial and defendant was found sane when he committed the crimes.
On the assault counts, the trial court sentenced defendant to two consecutive indeterminate terms of 25 years to life in state prison, for a total indeterminate term of 50 years to life. On the vandalism count, the court sentenced defendant to the upper term of three years in state prison, doubled for the strike, plus one year for the prior prison term, for a total determinate term of seven years to be served prior to the indeterminate terms.
On appeal, defendant raises several issues. He argues that the trial court erred in failing to instruct the jury sua sponte on the defense of unconsciousness and, alternatively, that trial counsel rendered ineffective assistance of counsel when he failed to request a jury instruction on unconsciousness and to admit into evidence testimony by Dr. Michael Zimmerman. Defendant also argues the court erred in declaring a mistrial in the sanity phase and he calls upon us to reject the cases holding that unanimity is required in the sanity phase. Finally, defendant contends the court erred in imposing the weapon enhancement on counts 2 and 3 because the enhancement does not apply to assault with a deadly weapon, erred in failing to stay his sentence for vandalism pursuant to section 654, and erred in denying his request to dismiss one of his two prior strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), where both convictions arose from the same incident.
We reject defendant's claim that the trial court erred and counsel was ineffective as related to instructing the jury on the defense of unconsciousness and reject his claim that the trial court erred when it declared a mistrial following the jury's deadlock in the sanity phase. However, we agree that the weapon enhancement does not apply to the assault convictions and section 654 required the trial court to stay the vandalism sentence. We also remand this matter to the trial court so defendant may renew his request for the dismissal of one of his two strikes in light of the California Supreme Court's subsequently issued decision in People v. Vargas (2014) 59 Cal.4th 635, 649 (Vargas), which held that the trial court was required to dismiss one of the defendant's strikes where her multiple strikes "were based on the same act, committed at the same time, against the same victim." (Id. at p. 638.)
FACTUAL SUMMARY
Defendant and a friend were on Highway 41 in Oakhurst around 7:30 p.m. on September 8, 2011, when his truck started having mechanical problems. He pulled into the library parking lot to work on the truck's engine. Two people started fighting near his parked truck and he broke up the fight. He then completed the repair work and as he was getting ready to leave, he realized his keys were missing. Although he only had an ignition key for the truck, he locked the doors to protect his property and headed into the adjacent park to look for his keys.
Michael Babcock, who did not know defendant, and Matthew Nicholson, who did, were in the park drinking and hanging out with friends. Babcock had the truck keys and defendant's friend retrieved them. As defendant and his friend left the park, a woman who had "just slammed a bunch of methamphetamines" started pestering defendant for a ride, yelling and grabbing at him. He grabbed her bicep, pointed at her and told her to leave him alone. A student who was between classes at the nearby community college saw defendant grab the woman and he called 911.
Babcock yelled at defendant that he was not a man for raising his hand to a woman. This agitated defendant and he crossed the parking lot toward Babcock.
Around this time, Nicole Naumcheff arrived to pick up a few of her friends, including Babcock and Nicholson. As she parked and got out of her car, Babcock was being pushed toward the car by Nicholson and another man. Babcock and defendant were yelling at each other over who was a man and defendant said, "I'll show you a man." Naumcheff tried to calm defendant down "but he looked scary" so she tried to get everyone to get in the car. "[H]ands [then] started flying" and she realized Nicholson had been stabbed in the bicep. She saw defendant holding a knife. Seconds later, defendant stabbed Babcock in the head and Babcock slid down the side of Naumcheff's car. Defendant kept saying he was not going to jail over it and he went back to his truck. A friend who had ridden to the park with Naumcheff called 911.
When defendant reached his truck, he broke the driver's side window with the knife, unlocked the door, got in and started it up. He then put the truck in reverse and hit the gas, aiming for the front of Naumcheff's car. The driver's side door of her car was open and Babcock was leaning against the car. Naumcheff and another friend pulled Babcock away from the car and all three rolled under the open door as defendant rammed the front of her car with the rear of his truck, riding up on it and knocking it back about six feet. The impact pushed the three of them, causing them to "tumble[]." Defendant then put the truck in forward gear, drove off of Naumcheff's car and parked some distance away.
Naumcheff dragged Babcock toward the community college, where there were other people around who aided him. Naumcheff went back to her car to check on Nicholson and defendant came running up. He grabbed and held Nicholson's arm, stating, "'If I go to jail for the rest of my life, at least I'm going [to try] to save your life.'" A police officer arrived then and defendant was identified as the one who stabbed Babcock and Nicholson.
Babcock testified at trial, as did Nicholson. Both were intoxicated and Nicholson said he did not remember the incident.
Officers recovered a folding knife from the scene. Subsequent DNA testing confirmed the blood visible on the knife was a match for both Babcock and Nicholson.
Defendant testified at trial that he remembered going toward Babcock in the parking lot after he fended off the woman who wanted a ride and Babcock yelled at him for not being a man. He also remembered breaking the window to his truck with his knife and getting in a "car accident." After he pulled his truck forward and parked, he saw "a big commotion behind [him]" and he then rendered aid to Nicholson, who was bleeding. Defendant testified he did not remember stabbing anyone or intentionally ramming Naumcheff's car.
Defendant related there had been other times in his life he did not remember doing things. He testified he had been "5150ed" four times and admitted to the hospital due to mental illness, and he had taken medication his entire life. He explained he usually handled agitation "pretty well," but sometimes even one word would "throw [him] into a frenzy" and he would not really comprehend what was going on, although the episodes would end quickly.
DISCUSSION
I. Unconsciousness Defense
At trial, defendant argued a mental impairment defense (§ 28) to attempted murder, but did not argue a defense of unconsciousness (§ 26). He now asserts that the trial court had a duty to instruct the jury sua sponte on unconsciousness. If we find the trial court did not err, he contends that his trial counsel's failure to request the instruction and to have Dr. Zimmerman testify during the guilt phase constituted ineffective assistance of counsel.
Section 28, subdivision (a) provides, "Evidence of mental disease, mental defect, or mental disorder shall not be admitted to show or negate the capacity to form any mental state, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act. Evidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged."
Section 26 provides, "All persons are capable of committing crimes except ... [p]ersons who committed the act charged without being conscious thereof."
The People respond that because the defense was not supported by substantial evidence, the trial court did not have a duty to instruct on it. They also contend that counsel did not render ineffective assistance of counsel, as he acted reasonably both in not requesting the instruction given the defense's theory of mental impairment and in deciding not to call Dr. Zimmerman to testify given it would have opened the door to evidence in aggravation.
A. Duty to Instruct Sua Sponte
Allegations of instructional error are reviewed de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733; People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) "In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case." (People v. Martinez (2010) 47 Cal.4th 911, 953.)
"Unconsciousness, when not voluntarily induced, is a complete defense to a charged crime." (People v. Rogers (2006) 39 Cal.4th 826, 887 (Rogers); § 26.) "To constitute a defense, unconsciousness need not rise to the level of coma or inability to walk or perform manual movements; it can exist 'where the subject physically acts but is not, at the time, conscious of acting.'" (People v. Halvorsen (2007) 42 Cal.4th 379, 417.) "A trial court must instruct on unconsciousness on its own motion if it appears the defendant is relying on the defense, or if there is substantial evidence supporting the defense and the defense is not inconsistent with the defendant's theory of the case." (Rogers, supra, at p. 887.)
We find the California Supreme Court's decision in Rogers instructive here. As in Rogers, and contrary to his assertion on appeal that unconsciousness was his "key defense," there is no indication in the record that defendant relied on a theory of unconsciousness; trial counsel did not argue unconsciousness or request the jury be instructed on unconsciousness. Nor did either side call any psychiatric or other experts to testify during the guilt phase regarding defendant's mental or medical health. As a result, there was no expert testimony that defendant was unconscious during the attacks and any evidence of unconsciousness must be found in defendant's testimony.
Defendant did not testify he was unconscious. He described having been "5150ed" on four separate occasions and he denied intending to hurt anyone. He explained that at times, something, even "a slight word," would throw him "into a frenzy" and he would not "comprehend" what was happening. He also agreed with the characterization of such episodes as an overreaction and while he testified that he did not remember stabbing Nicholson or Babcock, or backing into Naumcheff's car, he remembered going toward Babcock after Babcock said he was not a man, breaking the window of his truck and being in an "accident."
A "[d]efendant's professed inability to recall the event, without more, [is] insufficient to warrant an unconsciousness instruction." (Rogers, supra, 39 Cal.4th at p. 888; People v. Gana (2015) 236 Cal.App.4th 598, 609.) Here, defendant's testimony that he did not remember stabbing Babcock and Nicholson or ramming his truck into Naumcheff's car amounted to nothing more than a stated inability to recall those details of his crimes. In the absence of substantial evidence of unconsciousness, the trial court's duty to instruct the jury on the defense sua sponte was not triggered. We find no error and reject defendant's claim to the contrary.
Our conclusion renders moot defendant's companion argument that the trial court's failure to instruct the jury on unconsciousness precluded him from presenting a complete defense, in violation of his federal constitutional right to due process. (People v. Ayala (2000) 23 Cal.4th 225, 283 ["[W]e know of no authority creating a constitutional right to have the jury instructed on theories unsupported by evidence."].)
B. Ineffective Assistance of Counsel
Defendant bears the burden of proving ineffective assistance of counsel. (People v. Mattson (1990) 50 Cal.3d 826, 876-877.) "To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel's performance fell below an objective standard of reasonableness, i.e., that counsel's performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings." (People v. Cunningham (2001) 25 Cal.4th 926, 1003; see generally Strickland v. Washington (1984) 466 U.S. 668, 687-694.) "[I]n assessing a Sixth Amendment attack on trial counsel's adequacy mounted on direct appeal, competency is presumed unless the record affirmatively excludes a rational basis for the trial attorney's choice." (People v. Musselwhite (1998) 17 Cal.4th 1216, 1260; accord, People v. Stewart (2004) 33 Cal.4th 425, 459.)
The absence of substantial evidence supporting a defense of unconsciousness clearly provides a rational basis for counsel's decision not to seek a jury instruction on it. As for counsel's decision not to call Dr. Zimmerman, we do not agree with defendant's argument that this demonstrates deficient performance.
There is no evidence in the record that counsel and defendant disagreed over trial strategy, including whether Zimmerman should testify in the guilt phase; therefore, defendant's citation to People v. Frierson (1985) 39 Cal.3d 803, 814, 817-818 lends no support to his argument. We "give great deference to counsel's tactical decisions" (People v. Johnson (2015) 60 Cal.4th 966, 980), and the record demonstrates that counsel considered calling Dr. Zimmerman to testify. Counsel was disinclined to do so, however, and Zimmerman ultimately testified only during the sanity phase.
In People v. Frierson, supra, 39 Cal.3d at pages 806-807, a capital case, the defendant very strongly wanted his trial counsel to present evidence of diminished capacity during the guilt/special circumstances phase of trial. He was overruled by counsel and the trial court, and the California Supreme Court found it improper for counsel to "refuse to honor defendant's clearly expressed desire to present a defense at that stage." (Id. at p. 815, fn. omitted.)
With the exception of his acts of stabbing the victims and ramming Naumcheff's car, defendant was able to recall specific events, including heading toward Babcock in the parking lot after being taunted over his manhood, breaking his truck window and driving forward off of Naumcheff's car. In addition, defendant testified that Babcock had his keys, witnesses testified defendant appeared angry, and although Deputy Gonzalez did not testify on the issue at trial, defendant may have been under the influence of alcohol. Calling Zimmerman to testify would not only have opened the door to inquiry into the bases for Zimmerman's and Dr. Robert Taylor's diagnoses of defendant's mental health issues, but could have led to further exploration into other areas potentially unfavorable to defendant, such as any ill will toward Babcock over the keys, defendant's anger and possible alcohol consumption. Given all these considerations, we have no trouble concluding that counsel's decision not to call Zimmerman to testify "can be explained as a matter of sound trial strategy." (People v. Carter (2003) 30 Cal.4th 1166, 1211; accord, People v. Jones, supra, 29 Cal.4th at pp. 1254-1255; People v. Orloff (2016) 2 Cal.App.5th 947, 955.) Accordingly, we reject defendant's claim that counsel's performance was deficient.
During the sanity phase, Dr. Zimmerman did not testify that defendant was unconscious at the time he committed the offenses, but he testified it was his opinion that defendant was in a disassociated state as a result of intermittent explosive disorder. Dr. Taylor, who testified for the prosecution, disagreed with Zimmerman's diagnosis. Had Zimmerman testified during the guilt phase, jurors would have heard evidence from both expert witnesses regarding defendant's episodes of uncontrolled rage. Avoiding an open door to those details alone provided a rational basis for the decision not to call Zimmerman as a witness during the guilt phase.
Additionally, defendant apparently had a likeability about him. During sentencing, the trial judge commented, "You, to some extent, did take responsibility at the scene of the incident by staying there. And even attempting to, in your own way, help one of the victims, if not two of them. And in speaking with law enforcement officers and, as I think I mentioned to you, when I denied your Romero request, I actually like you as a person. I don't know that I've ever said that to anybody in your circumstances, you know. But you're more than just an interesting person. You are a likeable person." (Italics added.) Given the decision to have defendant testify, counsel could reasonably have decided that it was in his client's best interest to keep the focus on his "likeable" client's general mental impairment while keeping from the jury the disturbing, more specific details foundational to Zimmerman's and Taylor's expert opinions. (See People v. Jones (2003) 29 Cal.4th 1229, 1254-1255.) We reiterate that defendant relied on a defense of mental impairment to negate the specific intent to commit attempted murder, and the jury in fact failed to reach a verdict on that count.
II. Declaration of Mistrial Following Sanity Phase Deadlock
During deliberations following the sanity phase, jurors reached an impasse, deadlocking nine-to-three in favor of finding defendant not guilty by reason of insanity. The trial court declared a mistrial and it subsequently found defendant sane. Defendant argues that the court violated his federal constitutional right to due process by imposing a unanimity requirement and we should reject the cases holding that unanimity is required on the issue of sanity.
The parties disagree over whether defendant forfeited this claim on appeal through his counsel's failure to object in the trial court. Defendant argues the facts are not in dispute and the issue on appeal is purely a question of law. He also argues any objection would have been futile in light of controlling precedent. Because this claim lacks merit in any event, we do not decide the forfeiture issue. (§ 1259; People v. Johnson (2004) 119 Cal.App.4th 976, 984-985.)
As defendant points out, federal due process does not require a unanimous jury verdict. (Johnson v. Louisiana (1972) 406 U.S. 356, 359; People v. Whitham (1995) 38 Cal.App.4th 1282, 1297-1298.) However, the California Supreme Court has stated that as to both guilt and sanity, "[e]ach issue must still be tried by a jury of twelve impartial persons, and the verdict must be unanimous." (People v. Troche (1928) 206 Cal. 35, 44 (Troche), disapproved on other grounds in People v. Wells (1949) 33 Cal.2d 330, 355.) The issue was subsequently considered by Courts of Appeal in People v. Bales (1974) 38 Cal.App.3d 354, 357 (Bales) and People v. Bradshaw (1935) 5 Cal.App.2d 528, 531 (Bradshaw), both of which held that unanimity is required.
Defendant does not dispute this, but nevertheless argues the language in Troche regarding unanimity was dictum and both Bales and Bradshaw were decided before the California Supreme Court clarified that "'[d]ictum, of course, is not controlling authority even when it emanates from the Supreme Court. [Citations.] Nonetheless it "carries persuasive weight and should be followed where it demonstrates a thorough analysis of the issue or reflects compelling logic."'" (Manufacturers Life Ins. Co. v. Superior Court (1995) 10 Cal.4th 257, 287 (conc. opn. of Mosk, J.).) The Court of Appeal in Bales recognized a possible argument that the unanimity language in Troche might be dictum and defendant contends that had the court been aware at the time of what the California Supreme Court subsequently clarified, it might not have concluded as it did. We are not persuaded on this point.
As an initial matter, the portion of the opinion relied on by defendant was not a holding of the majority, but a statement by Justice Mosk in his concurring opinion (Manufacturers Life Ins. Co. v. Superior Court, supra, 10 Cal.4th at p. 287), although we recognize that the general principle has been articulated by Courts of Appeal, including this one (e.g., People v. Lucatero (2008) 166 Cal.App.4th 1110, 1116; Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1169). Nor did the statement break any new ground, despite defendant's contrary argument. (See e.g., Humphrey's Executor v. United States (1935) 295 U.S. 602, 627-628 [dicta not controlling but may be followed if persuasive]; California Oregon Power Co. v. Superior Court of Siskiyou County (1955) 45 Cal.2d 858, 870 [same].) Moreover, while dictum is not binding, neither should it be blithely cast aside. (Howard Jarvis Taxpayers Assn. v. City of Fresno (2005) 127 Cal.App.4th 914, 925 ["Even if the court's conclusions technically constitute dicta, we will not reject dicta of the Supreme Court without a compelling reason, not present here."]; County of Fresno v. Superior Court (1978) 82 Cal.App.3d 191, 194 ["Dicta are not to be ignored. Dicta may be highly persuasive, particularly where made by the Supreme Court after that court has considered the issue and deliberately made pronouncements thereon intended for the guidance of the lower court upon further proceedings."]; Farmer v. Union Oil Co. (1977) 75 Cal.App.3d 42, 48 ["While dicta of our high court is not binding as judicial precedent, it is indicative of the court's persuasion on the matter asserted in the absence of a direct holding to the contrary."]; Kirby v. County of Fresno (2015) 242 Cal.App.4th 940, 959; People v. Miller (1999) 69 Cal.App.4th 190, 201-202; People v. Wade (1996) 48 Cal.App.4th 460, 467.)
We find defendant's argument that "when the court decided Bales, the binding nature of dictum in Supreme Court decisions had not yet been decided" an overstatement. For this proposition, defendant cites to Grange Debris Box & Wrecking Co. v. Superior Court (1993) 16 Cal.App.4th 1349, 1358. What the court recognized in that case, however, was as follows: "Although Hickman v. Mulder [(1976) 58 Cal.App.3d 900,] 902 does suggest Courts of Appeal may be bound by California Supreme Court dicta, the overwhelming weight of authority is contrary." (Ibid.) We do not interpret this statement as an observation that the nature of dicta was undecided.
In Bales, the Court of Appeal opined, "Weighing these considerations with the suggestion that the pertinent language of [Troche] is dictum, we nevertheless conclude that we as an intermediate appellate court should follow that decision. [Citations.] The Supreme Court's rule announced in Troche has generally been followed for 45 years. Any change should be made by that court or by the Legislature." (Bales, supra, 38 Cal.App.3d at p. 357.) We agree and further observe that in 2000, the California Supreme Court, citing to Troche, again stated, "As in the determination of guilt, the [sanity] verdict of the jury must be unanimous." (People v. Hernandez (2000) 22 Cal.4th 512, 521; see People v. Dobson (2008) 161 Cal.App.4th 1422, 1436.) We therefore reject defendant's claim that the trial court erred in requiring the jury to reach a unanimous verdict in the sanity phase of his trial.
III. Sentencing Enhancement for Use of Deadly or Dangerous Weapon
The jury convicted defendant of two counts of assault with a deadly weapon and, on both counts, it found the enhancement for use of a deadly or dangerous weapon true. (§§ 245, subd. (a)(1), 12202, subd. (b)(1).) The parties agree that because use of a deadly or dangerous weapon is an element of the underlying assault offense, the enhancement was improperly imposed. We concur.
Section 12022, subdivision (b)(1), provides: "A person who personally uses a deadly or dangerous weapon 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 one year, unless use of a deadly or dangerous weapon is an element of that offense." Based on stabbing Nicholson and endangering Babcock by ramming the car he was leaning against, defendant was convicted of violating section 245, subdivision (a)(1), which provides, "Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment." As use of a deadly or dangerous weapon is an element of the offense, the enhancement for the same does not apply and shall be stricken. (§§ 245, subd. (a)(1), 12022, subd. (b)(1); People v. McGee (1993) 15 Cal.App.4th 107, 110.)
The jury was instructed to determine whether the weapon enhancement was true as to counts 2 and 3. As the parties recognize, it appears from the record that the enhancement was not attached to those counts in the information and it was instead attached only to count 1, on which the jury deadlocked. To the extent the failure to allege the enhancements in an information created a potential issue, any issue is rendered moot given our determination that the enhancement cannot be applied to the assault offenses. (See People v. Houston (2012) 54 Cal.4th 1186, 1227 ["A defendant has a due process right to fair notice of the allegations that will be invoked to increase the punishment for his or her crimes."].)
Additional concerns arise from the court's oral pronouncement and the abstract of judgment. A trial court's oral pronouncement controls and we may correct any errors or omissions. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Here, the court's pronouncement was somewhat unclear and that lack of clarity may have generated confusion reflected in the abstract of judgment, which lists the enhancement twice but attached to count 6 rather than to counts 2 and 3. The jury did not make a finding on the enhancement as to count 6, however, as it was not alleged in the information, instructed on or set forth in the verdict form. Thus, the enhancement was improperly linked to count 6 in the abstract of judgment.
The trial court stated, "As to Count 6, 594 Subdivision (a) of the Penal Code, six years in State Prison, the aggravated term, pursuant to Penal Code Section 667.5 Subdivision (e)(1); a one-year state prison term consecutive enhancement pursuant to Penal Code Section 667.5 Subdivision (b) of the Penal Code, imposed consecutively pursuant to Penal Code Section 1170.1, Subdivision (d); one year in the State Prison, consecutive enhancement pursuant to Penal Code Section 12022, Subdivision (b)(1), imposed consecutively, also pursuant to 1170.1 Subdivision (d) of the Penal Code, but that is stayed pursuant to Penal Code Section 1202—or 12022 Subdivision (b)(1); as is an additional one-year state prison consecutive enhancement pursuant to Penal Code Section 12022 Subdivision (b)(1), imposed consecutively pursuant to Penal Code Section 1170.1 Subdivision (d), stayed. Penal Code Section 12022 Subdivision (b)(1). Therefore, the aggregate term of seven years in the state prison to be served prior to the following indeterminate terms pursuant to Penal Code Section 669.
"As to Count 2, Penal Code Section 245 Subdivision (a)(1), 25 years to life in state prison, pursuant to Penal Code Section 667 Subdivision (e)(2)(a)(ii).
"As to Count 3, Penal Code Section 245 Subdivision (a)(1), 25 years to life in state prison, pursuant to Penal Code Section 667 Subdivision (e)(2)(a)(ii), consecutive pursuant to Penal Code Section 667 Subdivision (c)(7). Therefore, those two are the aggregate indeterminate terms of 50 years to life in the state prison."
Notwithstanding the aforementioned uncertainties and errors, the result is clear: the weapon enhancement cannot be applied to the assault counts because use of a deadly weapon is an element of that offense. Accordingly, the weapon enhancements to counts 2 and 3 are stricken, and the abstract of judgment shall be corrected to reflect that there is no weapon enhancement attached to count 6.
IV. Imposition of Sentence for Vandalism Conviction
Defendant next argues the trial court erred in failing to stay his sentence on the vandalism count pursuant to section 654. The People concede this error.
Section 654, subdivision (a), provides that "[a]n 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." The statutory purpose "is to ensure that a defendant's punishment will be commensurate with his culpability." (People v. Correa (2012) 54 Cal.4th 331, 341.)
Here, the vandalism count arose out of the damage defendant did to Naumcheff's car when he rammed it with his truck, which is the same act underlying defendant's conviction for assault on Babcock with a deadly weapon. The trial court erred in punishing defendant twice for the same act and, therefore, his sentence on the vandalism count shall be stayed. (People v. Jones (2012) 54 Cal.4th 350, 360; People v. Reyes-Tornero (2016) 4 Cal.App.5th 368, 376; People v. Islas (2012) 210 Cal.App.4th 116, 129.) V. Denial of Romero Request
A. Standard of Review
Pursuant to section 1385, trial courts have the discretion to strike prior felony convictions, either on their own motion or on request by the prosecution, "in furtherance of justice." (Romero, supra, 13 Cal.4th at p. 530; People v. Carmony (2004) 33 Cal.4th 367, 373 (Carmony).) A defendant is not entitled to make a motion to strike a conviction, but may invite the court to do so. (Carmony, supra, at p. 375.)
"[A] trial court's refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion." (Carmony, supra, 33 Cal.4th at p. 375.) Our Supreme Court has explained that in applying the abuse of discretion standard in the present context, we are guided by two essential principles: "First, '"[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."'" (Id. at pp. 376-377.) "Second, a '"decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'"' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.)
"'[T]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts' discretion in sentencing repeat offenders.'" (Carmony, supra, 33 Cal.4th at p. 377.) "To achieve this end, 'the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court "conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme."'" (Ibid.)
The Supreme Court has established "stringent standards that sentencing courts must follow" in order to find an exception to the Three Strikes scheme. (Carmony, supra, 33 Cal.4th at p. 377.) "'[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, "in furtherance of justice" pursuant to ... section 1385[, subdivision] (a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.'" (Ibid.)
Thus, "the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (Carmony, supra, 33 Cal.4th at p. 378.) Because of this presumption, "a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not 'aware of its discretion' to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation]." (Ibid.) The circumstances must be "'extraordinary ... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack ....'" (Ibid.)
B. Analysis
Defendant argues the trial court misunderstood the scope of its discretion and believed it lacked the discretion to dismiss one of his strikes, despite noting they were based on the same incident. Defendant contends the California Supreme Court's decision in Vargas requires the court to dismiss one strike if both arise from the same act. Alternatively, defendant argues that even if the court was not required to dismiss one of the strikes under Vargas, it had the discretion to do so based on the unique circumstances of the prior convictions.
The People maintain the court understood the scope of its discretion and exercised it properly. They note the trial court's comment that it did not have enough information regarding the prior convictions and was uncertain whether they arose from one act or more than one act. They also argue the elements of the two crimes "differ greatly" and that fact "indicates that they were not from the same act."
Trial courts must apply the three strikes law "'where the defendant has at least one qualifying strike, unless the sentencing court "conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme."'" (Carmony, supra, 33 Cal.4th 377.) One such exception exists where two strikes are "based on the same act, committed at the same time, against the same victim." (Vargas, supra, 59 Cal.4th at p. 638.) In that situation, the trial court is required to dismiss one of the strikes. (Id. at p. 645.)
In this case, defendant's two prior strike convictions were incurred in 2004 when he was convicted of battery resulting in serious bodily injury (§ 243, subd. (d)) and criminal threats (§ 422). Both offenses were committed against the same victim based on one incident of domestic violence involving a firearm. Over this much, there is no dispute between the parties, but it cannot be determined from the record whether the offenses were part of a single act and the trial court ruled on defendant's Romero request without the benefit of the Vargas decision, which was issued approximately two months after the ruling. (Vargas, supra, 59 Cal.4th at p. 638.) The parties spent little time on the bases underlying the convictions in their briefing; defendant argued his "prior strikes arose out of the same incident" and treated that as one factor for the court to consider while the prosecutor noted only that the "prior strike convictions involved [the] personal use of a firearm" and were "serious felonies."
During the hearing, the victim of the offenses, whose declaration was also attached to the request, testified. Neither her declaration nor her testimony sheds much light on what happened, other than what the parties agree on: the crimes were committed during one incident against a single victim.
We do not think Vargas is as easily dismissed as the People suggest. As they acknowledge, the trial court mentioned it lacked sufficient information as to the whether the prior strike convictions resulted from one act or more than one act and, as we have mentioned, the court considered the issue prior to the Vargas decision. Nor are we persuaded by the People's argument that the issue can be resolved by mere reference to the elements of the two crimes.
If the two crimes against the victim resulted from the same act, the trial court is required to dismiss one of the strikes. (Vargas, supra, 59 Cal.4th at p. 645.) Therefore, the matter shall be remanded for the limited purpose of allowing defendant to renew his Romero request in light of Vargas.
DISPOSITION
The section 12022, subdivision (b)(1), weapon enhancements attached to counts 2 and 3 are stricken, and defendant's sentence for vandalism (count 6) is ordered stayed pursuant to section 654. In addition, defendant's sentence is ordered vacated and the matter is remanded so defendant may renew his request for the court to exercise its discretion to dismiss his prior strike conviction pursuant to section 1385, Romero and Vargas. If defendant fails to renew his Romero request or if the court denies the request, the court shall resentence defendant on counts 2, 3 and 6, as directed ante, and prepare an amended abstract of judgment. If the court grants the Romero request, it shall resentence defendant accordingly, to include striking the enhancements to the assault counts and staying the vandalism sentence. An amended abstract of judgment reflecting resentencing shall be prepared and forwarded to the appropriate authorities. The judgment is otherwise affirmed.
/s/_________
KANE, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
FRANSON, J.