Opinion
H042518
11-08-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY NORRIS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1472964)
A jury found defendant Anthony Norris guilty of several offenses arising from a domestic violence assault. The victim died of unrelated causes before the case went to trial. The trial court admitted the victim's hearsay statements about the assault through the testimony of a police officer and audio recordings of two 911 calls.
Norris raises numerous claims on appeal. First, he contends the admission of the victim's hearsay statements violated his right of confrontation under Crawford v. Washington (2004) 541 U.S. 36, 37 (Crawford). We conclude the victim's statements were nontestimonial and therefore not barred by Crawford.
Second, Norris challenges two evidentiary rulings in which the trial court instructed the jury not to consider some of the victim's hearsay statements for the truth of the matters asserted. We conclude the trial court properly instructed the jury, and that Norris suffered no prejudice even assuming the court erred.
Third, Norris raises two claims of sentencing error. He contends the trial court mistakenly believed it lacked discretion to impose a concurrent term on one count, and he contends the court should have stayed the terms on two other counts under Penal Code section 654. The Attorney General concedes the trial court erred at sentencing. We will reverse, vacate the sentence, and remand for resentencing.
Subsequent undesignated statutory references are to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Facts of the Offense
The charges arose from a domestic violence assault on Jane Doe in 2014. At the time, Norris and Doe lived in separate units at the Markham Plaza apartment complex in San Jose. Frances Anderson, a longtime friend of Doe's, lived in a separate building of the apartment complex. Before the case went to trial, Doe died for reasons unrelated to this case.
1. The 911 Calls
Anderson testified that Doe began pounding on Anderson's apartment door around 1:00 a.m. to 3:00 a.m. on January 8, 2014. Anderson let Doe in. Doe appeared scared, and she had a fat lip and red marks across her neck. She was crying and repeatedly asking, "What do I do?" Doe said she had gotten into an argument with Norris during which he hit her in the face multiple times. Doe also said Norris put a knife to her throat and threatened her life.
Anderson called 911. The prosecution played an audio recording of the call for the jury. Anderson requested medical attention and told the operator, "I have a friend here and she's all black and blue, her face is swollen." Anderson told the operator she had locked her door so the "boyfriend" couldn't get in. When asked about the location of the assailant, Anderson said he "lives on the other side." Doe also spoke to the operator. Doe said the assailant had a knife and had threatened to cut her throat if she called the police. The operator assured the women help was on the way and ended the call.
About 20 minutes later, Anderson called 911 a second time to request help again because nobody had arrived yet. The prosecution played an audio recording of the call for the jury. Anderson told the operator the assailant "lives on the other side" and clarified that he was not in the apartment with Anderson and Doe. Doe, who was also on the call, identified her assailant as Norris. Anderson told the operator she had seen Norris return to his apartment and explained that he lived in another building. Doe then said Norris had tried to choke her. When the operator asked if Norris still had a knife with him, Doe first said "No—he had the knife at my house." But she then added, "Yeah, he has a knife on him, he [inaudible]." Anderson assured the operator her door was locked.
2. Testimony of Officer Aidan Guy
San Jose Police Officer Aidan Guy arrived at Anderson's apartment around 2:00 a.m. He had been told the call concerned a possible domestic violence incident involving a knife. He interviewed Doe in Anderson's apartment. Doe appeared frightened with her arms clutched close to her chest, and she was crying intermittently. Guy saw redness and bruising on Doe's face and neck, and she had some dried blood on her lips. He lower lip appeared to be swollen.
Guy asked Doe what had happened. Doe told Guy that Norris had beat and choked her. Doe said Norris had punched her and choked her with both hands around her neck, whereupon she lost consciousness and found herself on the ground. She said Norris threatened that, if he were to be arrested, he would "finish her off." She also said a knife was involved and described it as a kitchen knife approximately 12 inches long. Guy never located it.
Guy told Doe that emergency services had been summoned and asked her if she wanted to meet with paramedics in the hallway. Doe responded, "He's not going to hurt me, is he?" Guy thought she was talking about Norris. Guy reassured her she was safe and took her to the paramedics. She was later taken to the hospital.
Guy arrested Norris in the same apartment complex, across the courtyard from Anderson's apartment. Guy did not notice any injuries on Norris, and Norris did not complain of any.
3. Other Evidence
Anderson testified that Doe subsequently asked her to lie to the police about the incident. Doe, who was under the influence of drugs at the time, asked Anderson to go to the police department and tell them she had seen Norris beat Doe, put a knife to Doe's throat, and threaten to kill Doe if she called the police. Anderson refused to do so because she had not seen the assault. Anderson testified that Doe said she was worried she would get in trouble if she went to the police herself because she was under the influence of drugs. Anderson believed Doe generally had a dishonest character.
Dr. Steven Germany was the emergency medical physician who treated Doe on the morning of the assault. Based on his review of the medical records, he testified that Doe had some swelling of the upper and lower lip with some abrasions, and some tenderness in her jaw and rear chest area. She also complained of pain to her neck. The records showed Doe complained she had been strangled to the point of unconsciousness. Dr. Germany found no medical indications that she had lost consciousness.
4. Defense Evidence
Eliza Gomez, who had known Doe for 25 years, thought of her as a sister and best friend. Gomez testified that Doe was a very caring, loving person who was "amazing" when she was clean and sober. However, when Doe was using methamphetamine, she became manipulative, angry, aggressive, irrational, delusional, and paranoid. Gomez testified that Doe was dishonest and lied when she was under the influence.
Pastor Calvin Cook had known Doe for about 15 years. He formed a relationship with Doe when he was teaching at a drug rehabilitation center. He testified that Doe had a dishonest character when she was using drugs. Once when Cook visited Doe in the hospital, she started crying and admitted she lied about the assault, telling Cook, "You know, [Norris] didn't hit me."
Gomez testified that she talked with Doe at the hospital soon after Cook left. Doe broke down, started crying and hyperventilating, and told Gomez, "I lied and I need to come clean." Gomez was certain Doe was talking about being assaulted by Norris. Doe passed away a few days later.
B. Procedural Background
The prosecution charged Norris with five counts: Count 1—Assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)); Count 2—Assault with a deadly weapon (§ 245, subd. (a)(1)); Count 3—Inflicting corporal injury on someone with whom the offender had a dating relationship (§ 273.5, subd. (a)); Count 4—Attempting to dissuade a victim or witness from reporting a crime (§ 136.1, subd. (b)(1)); and Count 5—Making criminal threats (§ 422). As to Counts 4 and 5, the information alleged Norris personally used a deadly and dangerous weapon. (§ 12022, subd. (b)(1).) The information also alleged Norris had suffered two prior convictions for rape, both constituting strikes and serious felonies. (§ 261.)
The trial began in April 2015. The jury found Norris not guilty on Count 2, and guilty on Counts 1, 3, 4, and 5. The jury found the weapons allegations on Counts 4 and 5 not true. The trial court found Norris had suffered both prior convictions.
At sentencing, the trial court granted Norris' Romero motion as to one of the strikes but denied it as to the other strike. The court imposed a total term of 22 years, composed of eight years on Count 1 (double the four-year aggravated term), a consecutive four-year term on Count 4 (double the two-year middle term), and 10 years for the prior serious felony convictions. As to Count 3, the court imposed a concurrent eight-year term. As to Count 5, the court imposed a concurrent six-year term.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
II. DISCUSSION
A. Admission of Doe's Hearsay Statements
Norris contends the trial court violated his Sixth Amendment right of confrontation under Crawford by admitting hearsay statements made by Doe during the 911 calls and the police interview following the assault. The Attorney General contends the statements were properly admitted because they were nontestimonial. Even assuming the statements were erroneously admitted, the Attorney General contends any error was harmless.
1. Background
The challenged hearsay statements by Doe are set forth above in parts I.A.1 and I.A.2. The prosecution moved pretrial to admit Doe's statements as spontaneous declarations under Evidence Code section 1240. The prosecution argued the statements were not barred under Crawford because they were nontestimonial. Norris objected based on Crawford and hearsay grounds, among others.
The trial court held a pretrial hearing under Evidence Code section 402 at which Officer Guy testified to the circumstances of his interview with Doe. Guy testified he had been instructed to respond to a domestic violence call possibly involving a knife. He had been informed the suspect was not currently in the "immediate presence" of the victim, but Doe told him the suspect might still be in the area. Guy described Doe's initial appearance as frightened, and it appeared she had been crying. He observed physical injuries on her, and because he did not know where the suspect was at the time, he was concerned for her safety as well as his own. The primary goal of his initial conversation with Doe was to assess her medical condition and determine whether she needed emergency treatment. He also wanted to establish what had happened and determine the nature of the crime. At that point, he believed the suspect might still be armed.
After the initial conversation, Guy began audio recording Doe's statement. He did so to establish the elements of the crime and to make a record of what she was saying. He wanted to preserve her statement to be used as evidence in a future prosecution, in part because he knew domestic violence victims sometimes retract their statements.
Guy spoke with Doe again after the emergency technicians arrived. They were outside the apartment where Doe was being loaded into an ambulance. To Guy's knowledge, police had not yet located Norris. Norris was taken into custody after Doe was transported to the hospital.
The trial court admitted Guy's testimony about his initial unrecorded conversation with Doe on the ground that this part of the interview was nontestimonial and fell within hearsay exceptions. The court found that when Guy first arrived on the scene he was dealing with an emergency situation, and the encounter with Doe lacked the solemnity associated with testimony. However, the trial court excluded the audio recorded portions of Doe's statement as testimonial. The court found this part of the interview was recorded with the intent to memorialize Doe's statement for use as evidence in a future prosecution.
2. Legal Principles
The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." (U.S. Const., 6th Amend.) The Confrontation Clause thereby bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." (Crawford, supra, 541 U.S. at p. 37.) This bar applies only to testimonial statements; admission of nontestimonial statements, while subject to state law hearsay rules, does not violate the Confrontation Clause. (Id. at p. 53.)
Generally, statements made to police are nontestimonial "when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. [Statements to police] are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Davis v. Washington (2006) 547 U.S. 813, 822 (Davis), fn. omitted.)
We review de novo whether a statement is testimonial and therefore implicates the Confrontation Clause. (People v. Nelson (2010) 190 Cal.App.4th 1453, 1466.) "We evaluate the primary purpose for which the statement was given and taken under an objective standard, 'considering all the circumstances that might reasonably bear on the intent of the participants in the conversation.' " (Ibid., citing People v. Cage (2007) 40 Cal.4th 965, 984.) Improper admission of testimonial statements is an error of federal constitutional magnitude. (People v. Sanchez (2016) 63 Cal.4th 665, 685.) To show any such error is harmless, the state bears the burden of showing beyond a reasonable doubt that the error did not contribute to the verdict obtained. (Chapman v. California (1967) 386 U.S. 18; People v. Rutterschmidt (2012) 55 Cal.4th 650, 661.)
3. Doe's Statements Were Nontestimonial
The Attorney General does not dispute that Doe's statements constituted hearsay admitted for the truth of the matter. Nor does Norris challenge the trial court's rulings under the hearsay exceptions. The sole issue is whether Doe's statements were testimonial under the Sixth Amendment.
Norris contends Doe's statements to the 911 operator were inadmissible as testimonial statements under the holdings of Davis, supra, 547 U.S. 813. In Davis, a domestic violence victim called 911 to report an ongoing assault. (Id. at p. 817.) The victim later told the operator her boyfriend had left in a car, after which the operator continued to question the victim about the boyfriend's identity and the circumstances of the assault. The police then arrived and observed the victim in a frantic state with injuries on her forearm and face. In the companion case of Hammon v. Indiana, police responded to a domestic violence call and found the victim alone on the front porch of her home. (Id. at p. 834.) She appeared " 'somewhat frightened,' " id.at page 819, but claimed nothing was wrong. In her house, police saw a heating unit with broken glass. The victim's husband was in the kitchen. Police separated the couple and questioned the victim. She signed an affidavit stating her husband had hit her and shoved her into the broken glass of the heating unit, among other things.
In Davis, the court held that the victim's statements in the 911 call in were nontestimonial, but in Hammon the court held that the victim's statements to police officers were testimonial. (Davis, supra, 547 U.S. at pp. 828, 829-830.) The court distinguished between the two cases on the basis that the statements in Davis were taken primarily for the purpose of resolving an ongoing emergency, while Hammon involved statements taken for the purpose of investigating past criminal activity. The victim in Davis, facing an ongoing emergency, was speaking about events as they were actually happening, not describing past events. (Id. at p. 827.) In Hammon, by contrast, the victim spoke to police after the assault had occurred and the emergency had passed. (Id. at pp. 819-820.) The court also held that police interrogations may evolve into testimonial statements as questions change from those needed to "address the exigency of the moment" to those designed to " 'elicit testimonial evidence.' " (Id. at pp. 828-829.)
Doe's statements to the 911 operator more closely resemble those of the victim in Davis. She required medical attention, and Norris, who may have had a knife, was still at large. Her statements were not recorded for the purpose of investigating criminal activity. Rather, she was primarily reporting an ongoing emergency. (People v. Cage, supra, 40 Cal.4th at p. 984 [statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial].) Similarly, the statements Doe made to Guy during the initial portion of the interview were also made for the purpose of addressing an ongoing emergency. Guy testified that his primary purpose was to assess her medical condition and determine whether she needed emergency treatment. Norris had not yet been taken into custody, and no knife had been secured. Because Guy was concerned about the safety of both the victim and himself, he posed questions to Doe intended to determine Norris' whereabouts and whether he might still be armed. The trial court properly distinguished these initial statements from Doe's subsequent statements, which Guy recorded for the express purpose of memorializing evidence to support a future prosecution. We conclude the trial court did not err by admitting Doe's hearsay statements.
B. Anderson's Testimony Regarding Doe's Request to Make a False Police Report
As set forth above in part I.A.3, Anderson testified that Doe asked Anderson to go to the police department and tell them she had seen Norris beat Doe, put a knife to Doe's throat, and threaten to kill Doe if she called the police. In pretrial motions, Norris argued that this request constituted a hearsay statement admissible for its truth as a declaration against interest.
The trial court rejected this argument, but the court admitted the testimony subject to the following limiting instruction: "[Y]ou heard evidence that [Doe] made other statements. I am referring to the statements about which Frances Anderson and Elisa Gomez testified. [¶] If you conclude that [Doe] made these other statements, you may only consider them in a limited way. You may . . . use them in deciding whether to believe the statement that [Doe] made to Officer Guy, Frances Anderson and during the 911 calls on January 8, 2014. [¶] You may also consider them in assessing the opinions of Ms. Anderson and Ms. Gomez that [Doe] had a character trait for dishonesty. [¶] You may not use those other statements as proof that the information contained in them is true, nor may you use them for any other reason."
In its first reading of the instruction, the trial court erroneously inserted the word "only" at this point in the instruction. The court then informed the jury that this insertion was erroneous, and the court struck the word "only" from the instruction.
Norris contends the trial court erred by not admitting Doe's hearsay statement for the truth of the matter as a declaration against interest under Evidence Code section 1230 or as a statement of her then existing state of mind under Evidence Code section 1250. The Attorney General contends the trial court properly instructed the jury because Doe's request was merely a request that did not constitute hearsay. Even assuming the request constituted a statement admissible for its truth, the Attorney General contends any error was harmless.
1. Legal Principles
" 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) Verbal conduct consisting of a proposal to act—conduct that is neither inherently true nor false—does not constitute hearsay. (People v. Cowan (2010) 50 Cal.4th 401, 472.)
Evidence Code section 1230 provides, in part, "[e]vidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, . . . so far subjected him to the risk of . . . criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true."
Evidence Code section 1250 provides in part that evidence of a statement of the declarant's then existing state of mind is not made inadmissible by the hearsay rule when the evidence is offered to prove the declarant's state of mind at that time or at any other time when it is itself an issue in the action.
We review a trial court's decision as to whether a statement is against a defendant's penal interest for abuse of discretion. (People v. Lawley (2002) 27 Cal.4th 102, 153.) Similarly, a reviewing court may overturn a trial court's finding regarding trustworthiness only if there is an abuse of discretion. (People v. Edwards (1991) 54 Cal.3d 787, 820.) "When a trial court bases its ruling on a conclusion of law, or a mistake of law, we review de novo but when we review a ruling admitting or excluding evidence we ask whether the ruling is an abuse of discretion." (People v. Tran (2013) 215 Cal.App.4th 1207, 1217.)
2. Doe's Words Constituted a Request , Not a Hearsay Statement
The Attorney General contends Doe's words constituted a request to Anderson, not a declaration that is either true or false. The Attorney General is correct. Doe simply asked Anderson to go to the police and lie about having witnessed the assault. In those words, we perceive no statement or assertion that can be judged as true or false. "Because a request, by itself, does not assert the truth of any fact, it cannot be offered to prove the truth of the matter stated." (People v. Jurado (2006) 38 Cal.4th 72, 117.) A statement not offered for the truth of the matter does not constitute hearsay, and exceptions to the hearsay rule are therefore irrelevant to the issue of admissibility.
Norris contends a request can constitute an implied hearsay statement. "[E]vidence of an express statement of a declarant is . . . hearsay evidence if such evidence is offered to prove—not the truth of the matter that is stated in such statement expressly—but the truth of a matter that is stated in such statement by implication." (People v. Allen (1976) 65 Cal.App.3d 426, 433, disapproved on other grounds by People v. Green (1980) 27 Cal.3d 39, fn. 25.) "An implied statement may be inferred from an express statement whenever it is reasonable to conclude: (1) that declarant in fact intended to make such implied statement, or (2) that a recipient of declarant's express statement would reasonably believe that declarant intended by his express statement to make the implied statement." (Id. at pp. 433-434.) Norris contends that Doe's request to Anderson constituted an implicit statement that Doe had lied to the police about being assaulted. But Doe's request, while ill advised, was still consistent with having been assaulted. The implication now asserted by Norris does not directly follow from the wording of the request. We conclude the trial court did not abuse its discretion by instructing the jury not to consider the testimony for the truth of the matter.
Furthermore, the trial court instructed the jury it was permitted to use the request in assessing Doe's character for honesty and considering whether her statements to the police and Anderson were truthful. The only possible theory of relevance for the request—that because Doe asked Anderson to lie, Doe had herself lied about the assault—was available for the jury's consideration. Thus, even assuming the trial court erred by instructing the jury not to consider the truth of the matter, nothing in the instruction could have harmed Norris. We conclude this claim is without merit.
C. Gomez's Testimony That Doe Admitted Lying
Norris contends the trial court erred by excluding Gomez's testimony that Doe admitted to lying. Although the court admitted the testimony for impeachment purposes, Norris contends the court erred by instructing the jury not to consider the testimony for the truth of the matter stated. The Attorney General contends the trial court properly limited the jury's use of the testimony because Gomez was vague about whether Doe's statement referred to the assault by Norris.
1. Background
As described above in part I.A.4, Gomez testified that she was at the hospital visiting Doe at the same time Cook was there. After Cook left, Doe began crying and hyperventilating. When Gomez asked her what was wrong, Doe responded, "I lied and I need to come clean." When defense counsel asked Gomez exactly what Doe had said, Gomez responded, "She said that she lied because her and [Cook] were having a conversation regarding [Norris]." Gomez testified that she had "[n]o doubt at all" that Doe's statement referred to her allegations of being assaulted by Norris.
Norris argued that the statement should be admitted for its truth as a statement against interest under Evidence Code section 1230 and as a statement of her then existing mental state under Evidence Code section 1250. The prosecution argued that the statement was too vague and nonspecific to be admitted for its truth because Doe did not specifically identify Norris or reference her allegations against him. The trial court agreed with the prosecution that the statement was too nonspecific to be admitted for the truth. Accordingly, the court ruled that the statement would only be admitted for impeachment purposes under Evidence Code section 1202. The court instructed the jury as set forth above in part II.B.
2. The Limiting Instruction Was Not an Abuse of Discretion
The relevant legal principles and standards of review are set forth above in part II.B.1.
Norris contends the trial court erred by refusing to allow the jury to consider Doe's hearsay statement for the truth of the matter. She contends the statement was admissible for its truth as a statement against penal interest under Evidence Code section 1230 or as a statement of her then existing mental state under Evidence Code section 1250.
We are not persuaded. A statement of the declarant's mental state is inadmissible if the testimony is not made under circumstances indicating its lack of trustworthiness. (Evid. Code, § 1252.) Similarly, to be relevant as a statement against penal interest, the declarant's statement must be "so far tended to render invalid a claim by him against another" or "so far subjected him to the risk of civil or criminal liability." (Evid. Code, § 1230.) The trial court found that Doe's hearsay statement did not meet either exception because Doe never specifically mentioned Norris or her allegations of an assault by him. Although Gomez testified that she had no doubt Doe was referring to the assault, the trial court did not abuse its discretion by finding this assertion too speculative to credit as true.
Even assuming the testimony should have been admitted for its truth, Norris has not shown a reasonable probability the outcome would have been more favorable if it had been admitted. The trial court instructed the jury it could use the testimony in deciding whether to believe Doe's statements to the police and Anderson, and the jury could use the testimony in assessing the opinions of Anderson and Gomez that Doe had a character trait for dishonesty. Thus, the jury was allowed, albeit indirectly, to use Doe's statement to Anderson in the hospital as evidence that Doe had lied to the police or Anderson on the morning of the assault. Any error was therefore harmless. We conclude this claim is without merit.
In supplemental briefing, Norris further contends that the trial court's rulings on both Anderson's testimony and Gomez's testimony deprived him of the federal constitutional right to present a defense. "Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, [citation], or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, [citations], the Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.' " (Crane v. Kentucky (1986) 476 U.S. 683, 690, quoting California v. Trombetta (1984) 467 U.S. 479, 485.) But "the admission of evidence, even if error under state law, violates due process only if it makes the trial fundamentally unfair. [Citations.] Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test[.]" (People v. Partida (2005) 37 Cal.4th 428, 439.) Norris has not shown a degree of fundamental unfairness sufficient to establish a violation of his federal due process rights.
Specifically, with respect to the claimed violation of his right to present a defense, " '[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense.' [Citations.]" (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) "[T]he exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right." (People v. Cunningham (2001) 25 Cal.4th 926, 999.) We find this argument without merit.
Finally, Norris contends the cumulative prejudice of this asserted error and the error asserted in part II.A, ante, requires reversal. Because we find no merit in either claim, we conclude there is no cumulative prejudice to assess. Even assuming both rulings were erroneous, we would find the cumulative prejudice insufficient to require reversal, as both rulings allowed the jury to use the relevant testimony to conclude Doe's allegations were false.
C. Imposition of a Consecutive Term on Count 4
The trial court imposed a consecutive four-year term on Count 4 (attempted witness dissuasion). The court explained that it did so "because that is what is proscribed by Penal Code Section 136.1."
Norris requests that we remand for resentencing because the record shows the court incorrectly believed it lacked discretion to impose a concurrent term. The Attorney General contends Norris forfeited this claim by failing to object. As to the merits of the claim, the Attorney General contends Norris suffered no prejudice because the record shows the trial court would not have imposed a concurrent term on Count 4 even if the court had exercised its discretion.
Section 1170.15 provides in part that when a defendant is convicted of a felony and is also convicted of a second felony for a violation of section 136.1 involving a witness to the first felony, "the subordinate term for each consecutive offense" of dissuading a witness must be the full middle term for the dissuading a witness count plus any enhancements applicable to that count. (Pen. Code, § 1170.15, subd. (a); People v. Woodworth (2016) 245 Cal.App.4th 1473, 1478 (Woodworth).) In Woodworth, the trial court interpreted this statute to mandate the imposition of a full consecutive term for a violation of section 136.1. The court of appeal, however, construed the statute differently: "[Section 1170.15] requires the trial court to impose the full middle term of imprisonment only if a consecutive sentence is imposed. The section does not require the trial court to impose a consecutive sentence, but instead indicates that if the trial court chooses consecutive sentencing it must impose a full-term sentence for the witness dissuasion count." (Id. at p. 1479, italics added.) Because the trial court mistakenly thought it lacked discretion not to impose a full consecutive term, the court of appeal vacated the sentence and remanded for resentencing. (See People v. Bradford (1976) 17 Cal.3d 8, 20 ["It is well established that a trial court has discretion to determine whether several sentences are to run concurrently or consecutively."].)
It appears the trial court here made the same mistake as the trial court in Woodworth. The Attorney General concedes the trial court did not recognize it had discretion to impose a concurrent sentence. But the Attorney General contends Norris forfeited his claim by failing to object. Norris points out, however, that the court of appeal issued Woodworth—a matter of first impression on this issue—in March 2016, nine months after Norris was sentenced in June 2015. A change in case law is generally sufficient reason to excuse the initial failure to raise a claim. (People v. Wilson (2013) 219 Cal.App.4th 500, 517, fn. 9.) We find no forfeiture here.
In any event, Norris would likely bring a claim of ineffective assistance of counsel if the rule announced in Woodworth had been in effect when he was sentenced.
The Attorney General nonetheless contends we need not remand for resentencing. He argues that Norris suffered no prejudice because it is not reasonably likely the court would have imposed a shorter sentence if it had been aware of its discretion to do so. The Attorney General points out that Norris was facing an indeterminate three-strike sentence, but the trial court granted his Romero motion based in part on the court's intention to impose an indeterminate term of 22 years. The record does not establish that the court was fixed on a term of 22 years regardless of its discretion to impose a shorter term. In granting the Romero motion, the court referred to the 22-year term as "the sentence that is eventually imposed." This language is consistent with the court's belief that a consecutive term on Count 4 was mandated.
As the court of appeal noted in Woodworth, supra, 245 Cal.App.4th 1473, "Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) Remand will give the trial court "an opportunity to restructure its sentencing choices . . . ." (People v. Rodriguez (2009) 47 Cal.4th 501, 509.) We will therefore vacate the sentence and remand for resentencing.
D. Imposition of Concurrent Sentences on Counts 3 and 5
For the principle term, the trial court selected Count 1 (assault with force likely to produce great bodily injury) and imposed an eight-year term (double the four-year aggravated term). On Count 3 (infliction of corporal injury), the trial court invoked section 654 in finding the offense involved the "same operative facts" as the offense in Count 1. Nonetheless, the court imposed a concurrent eight-year term on Count 3.
Similarly, on Count 5 (making criminal threats), the trial court invoked section 654 and found the offense involved the same act as Count 4 (attempted dissuasion). Nonetheless, the court imposed a concurrent six-year term (double the aggravated term) on Count 5.
The court stated, "the Court is going to find the 422 is 654 to the 136.1."
Norris contends the trial court erred by imposing concurrent terms on Counts 3 and 5 because both terms should have stayed under section 654. The Attorney General concedes the court so erred.
We agree with Norris and we accept the Attorney General's concession. The trial court erred by imposing concurrent terms on Counts 3 and 5 because both terms constituted multiple punishments under section 654. (People v. Jones (2012) 54 Cal.4th 350, 353 [imposition of concurrent terms is improper where section 654 prohibits multiple punishments].) Although the Attorney General requests only that we order correction of the abstract of judgment, we will remand for resentencing for the reasons set forth in part II.C, ante.
III. DISPOSITION
The judgment is reversed, the sentence is vacated, and the matter is remanded to the trial court for resentencing. On remand, the trial court shall resentence defendant in accordance with this opinion, and the court shall order the abstract of judgment corrected accordingly.
/s/_________
RUSHING, P.J. WE CONCUR: /s/_________
PREMO, J. /s/_________
ELIA, J.