Opinion
A160067
09-27-2022
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY MALONE, Defendant and Appellant.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. 05-160525-2)
Miller, J.
A jury found defendant Anthony Malone guilty of sexual offenses and other crimes arising from two separate incidents involving two different victims.
Malone contends the prosecutor made an improper comment in closing argument, and the trial court erred in failing to admonish the jury about it. He also argues the matter must be remanded for resentencing under Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 441) (A.B. 518).
We find no reversible error. We also conclude remand for resentencing is not necessary in this case because Malone was sentenced pursuant to the One Strike law. (See People v. Caparaz (2022) 80 Cal.App.5th 669, 688-690, review filed (Aug. 9, 2022) (Caparaz) [because the trial court had no discretion to stay the defendant's sentence imposed under the One Strike law, remand for resentencing under A.B. 518 was not necessary].) Therefore, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Jane Doe 1
Jane Doe 1 testified that, in 2015, she worked in prostitution, posting ads for sexual services on the website Backpage. She required customers to wear condoms, and she kept all the money she earned (that is, she did not have a pimp).
Doe 1 testified that, on April 3, she was staying at a Best Western in Concord. She received a phone call around 8:18 a.m. from a man responding to her Backpage ad. Soon after the call, Malone arrived at the hotel, and Doe 1 let him in her room. She was wearing a bra and underwear. Malone asked Doe 1 to stand up so he could see her butt, and she asked him for payment. Malone was "getting nervous," and then "he turned around and pulled out a gun." He pointed the gun at Doe 1's head, and she started crying. Malone told her to perform oral sex on him, and she did so because she was scared. Malone continued to hold the gun pointed toward her face. He told her to stop so he could have sex with her. Doe 1 cried and asked him to put the gun down. Doe 1 reached for a condom, but Malone would not use it. Malone said," 'If you don't do whatever the fuck I say, I'm going to start busting this thing in you.'" He put his penis inside her vagina, while still pointing the gun at her. Malone ejaculated on Doe 1's abdomen. Then he started looking for money, and Doe 1 told him she did not have any. Malone noticed Doe 1 was wearing a diamond ring, and he took it from her. After he took the ring, Malone "kept telling [Doe 1] to give him money" and "was going through all [her] stuff." Malone told Doe 1 to go into the bathroom. Eventually, she heard him leave, and Doe 1 put pants on and ran down to the front desk to have someone call the police. When she returned to her room, she discovered her laptop was missing. Doe 1 reported what happened to a police officer, and she gave the officer her jeans because she knew the perpetrator's semen was on them.
A criminalist testified that sperm cells found on Doe 1's jeans matched Malone's genetic profile. On April 15, 2015, officers made contact with Malone's wife. She was wearing a ring, which the officers collected as evidence. At trial, Doe 1 identified the ring collected from Malone's wife as the one Malone had stolen from her.
Jane Doe 2
In 2015, Jane Doe 2 also worked in prostitution and advertised on Backpage. On April 9, she was staying at the Crowne Plaza in Concord. Around 3:30 a.m., she received a text response to her Backpage ad. The telephone number was the same number that had called Doe 1 on April 3. Malone went to Doe 2's hotel room. Doe 2 was wearing a gold bikini top and underwear. Doe 2 testified she "was getting bad vibes" about Malone and asked him to leave. Malone pulled out a gun and "had it in [Doe 2's] face." Malone "told [Doe 2] to suck his dick" while he held the gun at his hip pointed at her face. She engaged in oral copulation. Malone told her not to look at him. Doe 2 was scared and thought he would shoot her if she did not do as he said. She observed a faded semicircular tattoo on the perpetrator's stomach.
A photograph of Malone admitted at trial showed he had a faded semicircular tattoo on his stomach.
Doe 2 testified that Malone told her to get her pants off and she took off her underwear. She told him she had a disease, so he would put a condom on. Malone had his back turned to Doe 2, and she "just ran as fast as [she] could out the door." She ran to the hotel lobby; she was frantic and was saying, "somebody has a gun, somebody has a gun." Doe 2 was naked, and a woman at the front desk took her to a back room and gave her a blanket. Law enforcement arrived at the hotel, and Doe 2 spoke with Sheriff's Deputy Anthony Coniglio about what happened.
Defense
Malone testified on his own behalf. Malone admitted that he was convicted of assault with a firearm in Contra Costa County in 2003.
Malone testified that, about a year before the incidents giving rise to the criminal case, Malone met a woman named Ronnie. She was a prostitute, and his relationship with her "started off innocently enough," with him "just giving [her] a ride for 100 bucks, and it just developed from there." Malone testified he would not call himself a "pimp" because he "didn't have a stable of hos," but Ronnie "was working, and [he] was getting money." Ronnie would set up "dates" through websites like Backpage and would do "outcalls," meaning she would go where the customers were. Malone testified, "[Ronnie] chose me to basically direct her and give her rides. And . . . she taught me the business." Eventually, Malone was taking all the money Ronnie earned ("Every last dime"), and he testified, "[I] started thinking I was something I wasn't." Ronnie was his only "steady" prostitute.
Malone testified, "I got a big head and started thinking I was going to start knocking hos while [Ronnie] was on dates." His daily routine was "making money, blowing it at the casino, trying to knock hos at night." Asked by his counsel to explain what "knocking a ho" meant, Malone responded, "[b]asically getting her to choose-basically getting her to get on board with you and about whatever it is that you need."
In questioning his client, defense counsel tried to characterize Malone's conduct when he would meet a prostitute as giving a "sales pitch" for the woman to "[h]ave a business relationship with" him. Malone's own testimony, however, was not so clear. Asked whether he was trying to get "somebody to work with you" so "you can earn money," Malone responded, "Yeah. That's what it's all about, getting money. Man, it ain't about relationships.... It's all about the dollar." Asked whether he had success in his endeavor, Malone answered, "yeah and no" and then said, "The whole point is when you-when I was doing-as far as knocking the broad, it wasn 't about gaining confidence or a relationship, anything like that. If you can get any kind of cash out of them, you don't come back. You don't, you know, hold-I ride shotgun with me. I don't need something that-these broads were headaches. They're a lot more headache than they are anything else, okay? [¶] So you know, if you can get any cash out of them, I mean, that 's basically what it 's all about." (Italics added.)
Thus, Malone's own testimony belies the defense theory that his intent was to convince prostitutes to have an ongoing business relationship with him in which he would act as their pimp.
Malone would look at online ads for escorts while Ronnie was working. Malone "tried to . . . isolate the renegades from the broads who were actually up under somebody," meaning he was looking for women who did not have pimps. He testified that 80 to 85 percent of the time he would meet with a prostitute, "it's absolute no."
Regarding Doe 1, Malone corroborated her testimony that he responded to her ad by telephone and that she was wearing a bra and underwear when he met her in her hotel room. He testified, "I started popping my piece at her," "giving her some lines about dancing" at a cafe in San Jose. (This apparently was the "sales pitch" his counsel referred to.)
His counsel asked what happened after he made his sales pitch. Malone responded, ". . . I'm asking-I'm not asking. I'm explaining something that to the average person is going to seem illogical. I can't-I'm going to try and apply logic to an illogical situation, and that's- [¶] People who are not part of this lifestyle don't understand it, but you know, when you knock a ho, .... It's sex, purely sex. [¶] That's what's [sic] her intention is, that's what your intention is. That's why she's standing there in her bra and her underwear.... You agree on something, and it goes down. Really simple." He continued, "[Doe 1] was feeling it, as in, she was fine with it." "And as far as sex goes, sex wasn't even my idea. She had no cash. She had nothing."
Malone testified there's a "choosing fee," meaning the prostitute "pays you" "[t]o work for you." He said, "So believe it or not, once the money was discussed that [Doe 1] had nothing, but she was actually digging me, it was her suggestion for sex, not mine." According to Malone, they had intercourse, but there was no oral sex, and he did not have a gun. He testified, "[W]hen I walked in that room, there's no gun, there's no screaming, there's no fighting, there's no nothing. Hos do weird shit. It's a strange lifestyle." After they had sex, Doe 1 went to the bathroom. Malone saw a ring in a shot glass sitting on a desk, and he took it. He left before Doe 1 came out of the bathroom.
Defense counsel asked, "So how was this going to work out, this business relationship?" Malone, responded, "Well, I think that's the whole key here is, you know, if I can remember, like I said, she suggests the sex. I didn't. It wasn't about that. It was-I didn't really get nothing out of it but the ring. I walked out of there empty-handed otherwise." Defense counsel next asked, "[S]o there was no discussion about ever contacting her again?" Malone answered, "No. I had no intention of giving her ring back. I had no intention of contacting her. Sure didn't." Malone testified that Doe 1 called him a few days later and said he was "going to pay for taking her ring."
Malone testified that, around that time, his wife left him and he had no stable residence. He "was beating the pavement up" and going from "hotel to hotel with Ronnie." As for how the ring ended up with his wife, Malone testified he went home one day and "set the ring on top of the Xbox, dresser or whatever" and that was the last time he saw the ring.
Malone contacted Doe 2 by text and telephone after he saw her photo on the website Nightshift. He had "a weird feeling from the gut talking to this woman" on the phone, but he went to her hotel room and "the weird vibe came again because she didn't answer right away." Doe 2 wore only a bra and no underwear. He walked into her room, and Doe 2 stood by the door. Malone testified, "I looked back and I asked her, I said, 'What are you doing?' And out of nowhere, she starts screaming, 'What the fuck you doing in my room?'" "That was an odd response. But again, hos do weird shit. It really didn't strike me too much. It was kind of like I get this all the time. [¶] Anyway, I'll just get up and walk away. But then she starts screaming even louder, 'What the fuck are you doing in my room? Get out of my room.'" As Malone walked toward the door, Doe 2 "takes off running." Malone denied that he had a gun and denied he had sexual contact of any kind with Doe 2. He was in her hotel room "two minutes, tops," and then he left.
About two hours later, Malone received a telephone message from Doe 2 that said something to the effect of," 'You're not getting away with it this time.' "
Malone testified he was arrested on April 9. He was interviewed by Concord Police Detective Joshua Graham and Detective Coniglio. Malone admitted that he lied in the interview. He first testified that Ronnie did not come up during the interview; then he agreed that he mentioned his stripper girlfriend to the detectives. Malone admitted to the detectives that he had seen Doe 2, but he told them he did not know anything about Doe 1 and he had never been to the Best Western where Doe 1 had been staying.
In cross-examination, the prosecutor asked Malone about specific statements he made during his interview with law enforcement. Malone agreed he told the detectives he did not live with his wife because he liked sex too much and because he paid for it all the time. Malone agreed that he bragged to the detectives about having a lot of sex with prostitutes. At trial, however, Malone denied he ever paid to have sex; he testified, "Never. I don't pay for pussy." Malone admitted that he took Doe 1's ring and acknowledged his wife was later found wearing Doe 1's ring. Malone agreed he thinks of himself "as a tough guy" and "[p]robably occasionally" uses threats to get what he wants. Asked whether he used violence to show he had power, Malone responded that "[v]iolence is power" and he would "whoop any man's ass," but "you don't hurt women.... I got respect for that, Jordan." The prosecutor asked whether it excited him to have power over women, and Malone responded, "Really? Every woman in my family, they're bosses, dog. I don't know what you are talking about. I bow down to them women. Trust me, you're wrong."
Malone was an unruly witness. He addressed the prosecutor by his first name and "dog" (he also called his own attorney by his first name, told the prosecutor to "Stick to the facts," and responded to questions with questions, even after the trial court admonished him. When the prosecutor asked, "Are you saying that when you bragged to the police officer about having sex with prostitutes, that is a lie or-" Malone testified, "How many times, do you want me to say this? Yes, I've said I lied in my interview to the cop, period. I mean, you can ask me as many times as you want. My answer is going to be 'I lied to the cop.' My credibility is ruined. I get it. Let's stick to the facts of the case." Later, when the prosecutor asked him a yes or no question, Malone responded, "That's not my testimony, Jordan," and, "You got my answer." The prosecutor persisted, "I just want a 'yes' or 'no'?" and Malone testified, "I don't care what you want."
Jury Verdict, Court Trial, and Sentence
The jury found Malone guilty of two counts of first degree burglary with a person present (Pen. Code, § 459; counts 1 [Doe 1] and 6 [Doe 2]), two counts of assault with intent to commit a sexual offense during a burglary (§ 220, subd. (b); counts 2 [Doe 1] and 7 [Doe 2]), two counts of forcible oral copulation (former § 288a, subd. (c)(2)(A) (now § 287); counts 3 [Doe 1] and 8 [Doe 2]), one count of forcible rape (§ 261, subd. (a)(2); count 4 [Doe 1]), and one count of first degree residential robbery (§ 211; count 5 [Doe 1]). The jury found true enhancement allegations that Malone personally used a firearm in the commission of all eight counts (§§ 12022.5, subd. (a), 12022.53, subds. (a)(8), (11), (b), 667.61, subd. (e)) and, as to counts 3, 4, and 8, that he committed the sexual offenses during the commission of a burglary and against more than one victim (§ 667.61, subds. (a), (d), and (e)).
Further undesignated statutory references are to the Penal Code.
In a later proceeding, the trial court found Malone had suffered a prior conviction that was both a serious felony (§ 667, subd. (a)) and a strike (§ 1170.12). Malone was sentenced to 180 years to life for the forcible sex offenses (counts 3, 4, and 8), plus 23 years for the robbery (count 5) and the prior serious felony.
DISCUSSION
A. The Prosecutor's Comment to the Jury
Malone contends the prosecutor committed misconduct by suggesting to the jury that Ronnie did not exist when he knew there was such a person, and the trial court then erred in failing to correct the misconduct by informing the jury that Ronnie was a real person.
1. Closing Arguments
In his closing argument, the prosecutor urged the jury that Doe 1 and Doe 2 were telling the truth because they were honest with the police and their testimony was corroborated by physical evidence and by the similarity of their accounts of Malone's behavior. He stated that Malone, in contrast, was an admitted liar who "lied to you throughout his entire testimony." The prosecutor further argued Malone's testimony that he respects women was contradicted by the reality that he cheated on his wife with a woman named Ronnie, who was engaged in prostitution.
Defense counsel argued to the jury that aspects of the victims' versions of events were improbable, odd, or suspect and that the police investigation was shoddy, flawed, and may have involved "rushes to judgment." He acknowledged Malone may have been crude and combative when he testified but asserted he "was actually more candid about what goes on in this business." Defense counsel suggested Doe 1 and Doe 2 falsely accused Malone because they were "offended" that he was "actively approaching them and trying to recruit them, and he's not really that good at it because that's not what he does."
In rebuttal, the prosecutor identified inconsistencies within Malone's testimony. He then made the comment that Malone now claims resulted in reversible error (italicized within the following quote). He stated: "They [i.e., the defense] don't have to, but when the defendant's up here spouting lies, the fact that they have no one to corroborate that is telling.
"It's interesting. We talk about the defendant respecting women, and I think I mentioned this earlier, that he testified that he respects women, all these women in his life, his mother, sister, whomever. [¶] And yet look at the ways he treats women, he lies about that because he cheats on his wife, cheats on his girlfriend, Ronnie, if there is a girlfriend Ronnie. He violently assaults two other women.
"He tells the officers about how proud he is going to see prostitutes. He brags about it. [¶] So he's lying and lying and lying, and I think his own statement said that best, that when he was talking to the police his one lie got bigger and built on the next lie and the next lie.
"That's exactly what happened here on the stand. His lies compounded because he can't keep what's going on straight."
The prosecutor continued his rebuttal by attacking as nonsensical the defense theory that Malone was meeting the victims to recruit them to enter a business relationship with him: "His whole [s]ales [p]itch testimony falls apart when this lie builds when he's talking about Ms. (Jane Doe 1). Because he says that on April 3rd now that he's admitting going to see Ms. (Doe 1) at the Best Western, they're talking about business, and his words were, 'She was really feeling it. I'm going to offer her this opportunity with my girlfriend Ronnie to go dancing at the club in San Jose, and she liked this opportunity. We were vibing. We were going to build a good relationship.'
"This was positive for him, right? If his intent was to go there for business so it's going to be profitable for him and she's into it, well, then it's going to turn into a lucrative, profitable business. Why did he testify on direct examination that, 'Well, when I left I had no inten[t]ion of calling her.' [¶] That doesn't make any sense. You just said you went there to be a business man with her, and she liked the business opportunity plan that you presented. Well, then why would you not want to call her? [¶] That's one lie within the big lie."
The prosecutor described other aspects of Malone's version of events that did not make sense and then returned to the lack of corroborating evidence: "If his whole, 'I learned this business about [Backpage] and prostitution from the girl named Ronnie. And I was taking her out on the street, and she was giving me money to drive her around, and I was doing this for business for me,' who best to help corroborate that? Ronnie. Where is Ronnie?"
2. Defense Request for Stipulation or Correction
After the jury retired to deliberate, defense counsel asked to put on the record that the prosecutor "made a side comment" about Ronnie, "if she exists." Defense counsel noted that he did not object and that the remark "was only a note in passing," but he argued it was improper because the prosecutor knew Ronnie did exist as police reports documented numerous phone calls between Malone and Ronnie. He asked for a mistrial.
The prosecutor responded that he only intended to comment on the failure of evidence, that, "as a logical witness[,] she would have been presented." He acknowledged Ronnie existed and apologized to defense counsel, but he argued the remark was not grounds for a mistrial.
The trial court denied the motion for a mistrial, and that ruling is not challenged on appeal. The court stated it understood the prosecutor's argument and comment as questioning whether "this whole story about the relationship with Ronnie and being a driver, driving her around and so forth . . . was true," not as a statement that no such person exists.
Defense counsel then asked if the prosecution would stipulate that Ronnie "is a real person." The prosecutor responded that he thought the issue had "been handled." Defense counsel told the court that evidence provided by the prosecution showed (1) Ronnie exists, (2) she had a sexual relationship with Malone, and (3) "she appears to be involved in prostitution or at a minimum dancing."
The trial court observed that the prosecutor's comment "was not a very significant part of his argument and it was at best a quick aside," and it did not think that the comment would "have any influence on the jury." The court stated that, "absent a stipulation," it did not "believe it's appropriate . . . to instruct [the jury] on facts."
3. Analysis
"' "A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." '" (People v. Seumanu (2015) 61 Cal.4th 1293, 1331-1332 (Seumanu).)
Initially, we conclude the prosecutor's comment, "if there is a girlfriend Ronnie," did not infect the trial with such unfairness that it denied him due process. As defense counsel acknowledged, it was "a side comment" and "only a note in passing." We also reject Malone's suggestion that this comment on the state of the evidence was equivalent to the prosecution knowingly presenting false evidence to obtain a criminal conviction.
Finding no constitutional violation, our next question is whether the prosecutor's comment amounted to deceptive or reprehensible methods to attempt to persuade the jury.
" 'The prosecution is given wide latitude during closing argument to make fair comment on the evidence, including reasonable inferences or deductions to be drawn from it'" (Seumanu, supra, 61 Cal.4th at p. 1363), and comments "on the failure of the defense to introduce material evidence or to call logical witnesses" are permitted. (People v. Medina (1995) 11 Cal.4th 694, 755.) "[A] prosecutor may argue to a jury that a defendant has not brought forth evidence to corroborate an essential part of his defensive story." (People v. Varona (1983) 143 Cal.App.3d 566, 570 (Varona).) "A prosecutor may vigorously challenge the validity of any defense, and can characterize the testimony of a witness, including the defendant, as untruthful (Seumanu, at p. 1337), and, of course, the prosecutor is entitled to "point to inconsistencies between [a defendant's] testimony and his earlier statements" (People v. Dykes (2009) 46 Cal.4th 731, 769).
Here, the prosecutor properly challenged the defense theory by arguing it was inherently implausible and illogical; reminding the jury that Malone was an admitted liar; pointing out inconsistencies within Malone's trial testimony and between his testimony and his statements to police; and noting the failure of the defense to offer logical witnesses or other evidence to corroborate Malone's story.
Malone relies on Varona, supra, 143 Cal.App.3d 566, for the proposition that it is misconduct for a prosecutor to argue a known falsehood. In Varona, the defendant sought to introduce evidence that the alleged victim was a prostitute, the trial court excluded the evidence, and the prosecutor argued to the jury that there was no evidence that the victim was a prostitute. (Id. at p. 568.) The appellate court, however, concluded it was error to exclude the evidence, and the prosecutor "went beyond the bounds of any acceptable conduct" when he argued "the woman was not a prostitute although he had seen the official records and knew that he was arguing a falsehood." (Id. at p. 570.) Our high court later characterized the prosecutor's misconduct in Varona as "improperly capitaliz[ing]" on the trial court's erroneous evidentiary ruling. (People v. Lawley (2002) 27 Cal.4th 102, 156.) The present case is distinguishable from Varona because the prosecutor's comment was not improperly capitalizing on any evidentiary error.
The Attorney General argues the prosecutor's comment was an inadvertent misstatement that did not amount to misconduct when viewed in the context of the entire argument. Likewise, the trial court observed, "[I]n context, I did not understand it to suggest that [Ronnie]'s not a real human being as opposed to someone who had the role that the defendant described. [¶] So in context, I don't think it communicated the suggestion that [the prosecutor] doesn't have any idea whether the person exists or not as opposed to whether . . . the whole description by the defendant of . . . his relationship with her and so forth was true."
We agree with the Attorney General and the trial court. In his closing argument, the prosecutor mentioned Ronnie as a woman Malone was cheating on his wife with; thus, he accepted that she existed and that she had some kind of relationship with Malone. In his rebuttal, the prosecutor made the same point that Malone cheated on his wife with Ronnie, but added that he also "cheats on his girlfriend, Ronnie, if there is a girlfriend Ronnie." Later, the prosecutor observed that Ronnie was a logical witness to corroborate Malone's testimony that she taught him the business of prostitution; he then asked, "Where is Ronnie?" This was fair comment on the lack of corroborating defense evidence. Again, a prosecutor is permitted to comment "on the failure of the defense . . . to call logical witnesses." (People v. Medina, supra, 11 Cal.4th at p. 755.) The prosecutor referred to Ronnie, first, to argue Malone was cheating on his wife with her and, second, to argue her absence as a corroborating witness was another reason to discredit Malone's testimony. But the prosecutor was not trying to convince the jury that Ronnie did not exist. Considering his entire closing argument and rebuttal, we cannot say the prosecutor engaged in deceptive or reprehensible methods and, therefore, conclude there was no prosecutorial misconduct.
Moreover, even if we assume the prosecutor's comment, "if there is a girlfriend Ronnie," was misconduct, there was no prejudice. Malone claims the trial court erred in failing to "correct" the misconduct. At trial, defense counsel asked for a stipulation that Ronnie "is a real person." But there is no reasonable probability Malone would have obtained a better result if the jury had been told Ronnie was a real person. As the Attorney General argues (and the prosecutor discussed at length in his closing argument), Malone's "whole narrative regarding attempts to solicit women to be 'pimped' by him was implausible and defied logic." If the jury had been told that a person named Ronnie exists and she had a relationship with Malone, it would not have made Malone's explanation of what happened in those hotel rooms more plausible or made Doe 1 and Doe 2 less credible witnesses. Any trial court error in declining to instruct the jury Ronnie was a real person was harmless.
On appeal, Malone argues the trial court had a duty not only to correct the inference that Ronnie might not exist, but also "to correct the inferences" that she "would not corroborate [his] testimony that she was his girlfriend and a prostitute." The record does not establish that the prosecutor was aware of evidence that Ronnie was a prostitute. The prosecutor stated only that he had heard jail calls between Ronnie and Malone. Defense counsel stated that "recordings . . . are clear that . . . she appears to be involved in prostitution or at a minimum dancing." On this record, even if we assume prosecutorial error, the trial court had no duty to instruct the jury that Ronnie was a prostitute.
B. A.B. 518
For each of count 3 (forcible oral copulation; § 288a), count 4 (forcible rape; § 261), and count 8 (forcible oral copulation; § 288a), the trial court imposed an indeterminate term of 50 years to life in prison (25 years to life as mandated by the One Strike law (see § 667.61, subds. (a), (d)(4), (e)(4)), doubled because of the prior strike conviction), plus 10 years for the personal use of a firearm. The terms were ordered to be served consecutively.
Malone was sentenced to a consecutive 18-year term for count 5 (robbery; § 211) (four years doubled, plus 10 years for personal use of a firearm) and a consecutive five-year term for the prior serious felony conviction.
Pursuant to section 654, the trial court also imposed and stayed two terms of eight years each for counts 1 and 6 (burglary; § 459) and imposed and stayed two terms of life with the possibility of parole for counts 2 and 7 (assault with intent to commit sex offense during burglary; § 220, subd. (b)).
At the time Malone was sentenced, section 654 provided that when an act or omission was "punishable in different ways by different provisions of law," the trial court was required to punish the defendant "under the provision that provide[d] for the longest potential term of imprisonment." (Former § 654, subd. (a), as amended by Stats.1997, ch. 410, § 1.) Since then, A.B. 518 amended section 654, subdivision (a), "to afford sentencing courts the discretion to punish the act or omission under either provision," without regard to the longest potential term of imprisonment. (People v. Mani (2022) 74 Cal.App.5th 343, 351.)
Initially, the parties agreed in their appellate briefs that the matter should be remanded for resentencing under section 654 as amended by A.B. 518. After appellate briefing concluded, however, this court decided Caparaz, supra, 80 Cal.App.5th 6669, which addresses how newly-amended section 654 applies in One-Strike law cases. In a memorandum to counsel, we called this decision to the parties' attention and gave them the opportunity to file supplemental briefing. In a supplemental letter brief, the Attorney General takes the position remand is not necessary in this case because any deviation from the mandatory sentence under the One Strike law would be unauthorized. (Malone elected not to file supplemental briefing.)
Section 667.61, subdivision (h) of the One Strike law provides, "Notwithstanding any other law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, a person who is subject to punishment under this section." (Italics added.) In Caparaz, we held this provision means a trial court lacks discretion to stay punishment mandated by the One Strike law notwithstanding the amendment to section 654. (80 Cal.App.5th at pp. 688-689.)
Malone was sentenced in counts 3, 4, and 8 under the One Strike law. Under Caparaz, the trial court has no discretion to stay the terms for these three One-Strike offenses in favor of shorter terms for the non-One-Strike offenses. Consequently, remand for resentencing under A.B. 518 is unnecessary in this case.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Stewart, Acting P.J., Mayfield, J. [*]
[*] Judge of the Mendocino Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.