Opinion
D072678
12-10-2019
THE PEOPLE, Plaintiff and Respondent, v. KEITH OMAR THURNAN, Defendant and Appellant.
David L. Annicchiarico, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Lance E. Winters and Julie L. Garland, Assistant Attorneys General, Arlene A. Sevidal, Andrew Mestman, Elizabeth M. Kuchar, Deputy Attorneys General, for the Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD271092) APPEAL from a judgment of the Superior Court of San Diego County, Amalia Meza, Judge. Affirmed and remanded with directions. David L. Annicchiarico, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Lance E. Winters and Julie L. Garland, Assistant Attorneys General, Arlene A. Sevidal, Andrew Mestman, Elizabeth M. Kuchar, Deputy Attorneys General, for the Plaintiff and Respondent.
A jury convicted Keith Omar Thurnan of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 1), simple assault, a lesser included offense of assault by means likely to produce great bodily injury (§ 240; count 2), and making a criminal threat (§ 422; count 3). It found true that in committing counts 1 and 3, Thurnan personally used a dangerous and deadly weapon, specifically, a rock. (§ 1192.7, subd. (c)(23).)
Undesignated statutory references are to the Penal Code.
In separate proceedings, the court found true that Thurnan had suffered a probation denial prior conviction (§ 1203, subd. (e)(4)), two prison prior convictions (§§ 667.5, subd. (b), 668), two serious felony prior convictions (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) and a strike prior conviction (§§ 667, subds. (b)-(i), 668, 1170.12). The court sentenced him to nine years in prison consisting of four years (double the two-year low term) on count 1 plus five years on the serious felony prior convictions.
Thurnan contends: (1) he is entitled to a new trial on the criminal threat conviction because the court violated his constitutional rights by failing to instruct the jury on its own motion about the lesser included offense of attempted criminal threat; (2) insufficient evidence showed that the rock he hurled at his victim was a deadly weapon, requiring his count 1 conviction for assault with a deadly weapon be modified to simple assault; (3) the court erroneously instructed the jury that a rock is an inherently deadly or dangerous weapon, therefore, his count 1 conviction and the enhancement must be reversed; and (4) he is entitled to 20 additional days of presentence credit. In a supplemental brief, Thurnan contends we should remand the matter for the trial court to exercise its discretion regarding whether to strike the five-year serious felony enhancement under Senate Bill No. 1393 (S.B. 1393), which went into effect during the pendency of this appeal.
In our initial opinion, we rejected Thurnan's contention that the trial court's instructions regarding assault with a deadly weapon were prejudicial. We remanded the matter for the trial court to recalculate Thurnan's presentence custody credits and exercise its discretion regarding whether to strike or dismiss Thurnan's serious felony prior conviction.
Thurnan appealed to the California Supreme Court, which remanded the matter with directions for us to vacate our decision and reconsider the case in light of People v. Aledamat (2019) 8 Cal.5th 1 (Aledamat). The parties have addressed that decision in supplemental briefs. In this opinion, we revise our analysis of that contention. In other regards, our prior opinion remains substantially unchanged.
Thurnan separately requests we issue a limited remand for the trial court to exercise its discretion to strike the five-year enhancement for his prior conviction of a serious felony. He argues that if the trial court were to grant relief, he could be released soon and possibly immediately. We deny that motion and instead issue this opinion on an expedited basis, with directions that the trial court recalculate Thurnan's custody credits and exercise its sentencing discretion under S.B. 1393.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Case
C.T. testified that on March 8, 2017, around 3:00 p.m., she observed Thurnan, who she barely knew, drinking beers at a park. He was angry and said he was going to kill somebody that day. About two hours later, she saw Thurnan arguing loudly with two women. She stepped between Thurnan and the women to stop the incident. One of the women insulted Thurnan and he shoved C.T. hard with both hands. She fell backwards, hit her head on the ground, and "blacked out" for a few seconds. When she revived, she saw Thurnan was "enraged"; she testified "[i]t was frightening to watch him." C.T. sprayed Thurnan with pepper spray. He "was still in an aggressive mode" at that time. He washed his face and screamed at her, "I'm going to kill you, I'm going to kill you." C.T., who was homeless, said she became "scared to death" because she slept alone at night, and Thurnan knew where she slept. She told him, "If you're going to kill me, go ahead and kill me now then. Everybody's here." Thurnan pushed over a shopping cart he thought was C.T.'s and screamed that he was going to kill her. Although she was "very scared," C.T. decided "that's not going to stop me from speaking, you know. You're telling me you're going to kill me. Then do it now if you're going to do it. If you are going to do it, don't wait 'til I go to sleep. Don't do that to me 'cause [sic] that's just—I'm not going to carry that fear all night long with that."
Afterwards, as Thurnan and C.T. walked parallel to each other, he forcefully threw tangerines that hit her chest. Thurnan crossed the street and pelted C.T. with rocks while threatening to kill her. C.T. raised her hand to block the rocks but one hit her arm, which started bleeding and became swollen. She ran after Thurnan and showed him her hand. He apologized to C.T., who accepted it, telling him he must wait for the police, who arrived immediately. After police arrived, C.T. was treated by an ambulance medic, but although her arm hurt badly, she refused to go to the hospital. Two days later, C.T. went to the emergency room because the swelling in her arm had increased.
At trial, the prosecutor asked C.T. why she followed Thurnan considering she was afraid of him. C.T. replied that having been a victim of domestic violence, she had "learned that you . . . take their threats at that moment seriously. You may have all the fear in your heart and your soul, but you don't let that person walk away with that threat left over your head. I can't—I don't live like that no more. I used to live that way. I've been many times beat up because I allowed that person to walk away that threatened me. Today I may have fear, but I won't let you walk away with that threat over my head. I won't do it."
B.S., a percipient witness, testified that on that day Thurnan had threatened some of her friends and other people in the park; therefore, she confronted him and told him not to hit them. B.S. telephoned 911 at about 5:06 p.m. and recounted Thurnan was threatening everyone, saying he was in a gang, and he "pushed this lady down," and the woman used pepper spray on him. Afterwards, C.T. followed Thurnan, and he threw oranges and rocks hard at C.T., as if he were pitching in a baseball game.
P.P. testified he witnessed the incident. Thurnan was angry and yelling, but C.T. tried to calm him down. P.P. saw C.T. fall down, get up and use pepper spray on Thurnan. P.P. saw Thurnan throw something orange at C.T. P.P. described Thurnan as having "a good strong throw," "just like a baseball player." P.P. called 911 at about 5:18 p.m. and reported the incident, relating some events as they occurred. He described C.T. as "pissed off." At one point, P.P. told the operator, "Where is the squad car at, Goddammit? We need somebody here right away. This is going to get nasty," adding, "Somebody is going to get killed. I know."
Another witness, S.S., testified she saw Thurnan threatening to kill C.T. S.S. said the two were "yelling at the top of their lungs, and it was scary because it looked like [Thurnan] had his chest puffed out, and [C.T.] was kind of like backing away from him." S.S. could see a rock in Thurnan's hand. Thurnan threw the rock at C.T. "full force" and "hard enough to hurt someone." C.T. said, "I am not scared," adding words to the effect, "I'm good with God."
Defense Case
The defense did not present any evidence regarding the incident at issue here. Instead, a witness testified that in 2013, C.T. spat at him and "tried to assault [him] with a box cutter." The defense also relied on evidence that in 2015, C.T. had struck a motorist's windshield with a pipe. The defense pointed out [C.T.] had suffered a 1988 felony conviction, which made it unlawful for her to carry pepper spray; therefore, the prosecutor granted her immunity in exchange for her testimony.
DISCUSSION
I.
As to his count 3 criminal threat conviction, Thurnan contends the court violated his federal constitutional rights to jury trial and due process by failing to instruct the jury on its own motion on the lesser included offense of attempted criminal threat, which applies here because his threat assertedly did not cause C.T. to experience sustained fear. He specifically argues that different witnesses testified that C.T. did not leave the scene but instead pursued Thurnan, saying she could take care of herself. Moreover, she was not crying and did not seem afraid; and she was tall, muscular, and had a strong personality. A. Applicable Law
"A trial court has a sua sponte duty to instruct the jury on a lesser included uncharged offense if there is substantial evidence that would absolve the defendant from guilt of the greater, but not the lesser, offense." (People v. Simon (2016) 1 Cal.5th 98, 132.) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury." (People v. Breverman (1998) 19 Cal.4th 142, 162.) The court's failure to instruct on a lesser included offense is reviewed under a de novo standard. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
"To prove a violation of section 422, the prosecution must prove ' "(1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat—which may be 'made verbally, in writing, or by means of an electronic communication device'—was 'on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances. (People v. Culbert (2013) 218 Cal.App.4th 184, 189, quoting In re George T. (2004) 33 Cal.4th 620, 630.)
Subdivision (a) of section 422 prohibits " 'willfully threaten[ing] to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . is to be taken as a threat . . . which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety.' " (People v. Chandler (2014) 60 Cal.4th 508, 511.) --------
Sustained fear refers to a state of mind; the word fear "describes the emotion the victim experiences." (People v. Fierro (2010) 180 Cal.App.4th 1342, 1349.) It "has a subjective and an objective component." (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) "A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances." (Ibid.) This sustained fear element is satisfied where there is evidence that the victim's fear is more than fleeting, momentary or transitory (People v. Allen (1995) 33 Cal.App.4th 1149, 1156); it may be found when the evidence shows the victim's fear is not " 'instantly over.' " (People v. Culbert, supra, 218 Cal.App.4th at p. 191.) No specific time period is required; even one minute of fear can be sustained if a person is confronted with what he believes is a deadly weapon and believes he is about to die. (People v. Fierro, at p. 1349 ["we believe that the minute during which [the victim] heard the threat and saw [appellant's] weapon qualifies as 'sustained' under the statute. When one believes he is about to die, a minute is longer than 'momentary, fleeting, or transitory' "].) "[A]ll of the surrounding circumstances should be taken into account to determine if a threat falls within the proscription of section 422." (People v. Solis (2001) 90 Cal.App.4th 1002, 1013.)
"[U]nless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181; People v. Leigh (1985) 168 Cal.App.3d 217, 221 ["the testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions"].)
An attempted criminal threat is a lesser included crime of a criminal threat. (People v. Chandler, supra, 60 Cal.4th at p. 514; People v. Toledo (2001) 26 Cal.4th 221, 226.) " '[I]f a defendant, . . . acting with the requisite intent, makes a sufficient threat that is received and understood by the threatened person, but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear, the defendant properly may be found to have committed the offense of attempted criminal threat.' " (Chandler, supra, at p. 515.) For example, in Toledo, a husband told his wife, "I am going to kill you," and although the victim initially told an investigator that she was scared, the victim later testified that she was not actually frightened. (Toledo, supra, at p. 235.) Because the victim's contradictory testimony supplied substantial evidence for a jury to question the subjective state of the victim's fear, a jury could therefore find the defendant committed only the lesser offense of attempted criminal threat. (Ibid.) B. Analysis
We conclude there was enough evidence to show C.T. experienced sustained fear during the incident, which based on the timing of the 911 calls, lasted at least 10 minutes, from the time Thurnan threatened C.T. until police arrived. Under the case law cited above, fear lasting one minute can be sustained. It follows that a threat lasting 10 minutes is also sustained, and not fleeting. C.T. testified that despite her fear, her domestic violence experience taught her not to leave a threat unaddressed. She said she pursued Thurnan to resolve the matter immediately, while people were present who could intervene, rather than leaving herself more vulnerable to his threat during the night while she slept. We conclude that C.T.'s subjective claim that she was "scared to death" was reasonably objective under the circumstances. Thurnan had shoved her to the ground and, even after she used pepper spray on him, he threatened to kill her, toppled a cart he thought was hers, and forcefully threw oranges and rocks at her.
Thurnan's arguments are unavailing. First, the fact that C.T. followed Thurnan does not indicate an absence of sustained fear. No basis exists for concluding that her only options in the face of his attacks were to be paralyzed by fear or to retreat. In fact, the jury reasonably could have believed C.T.'s testimony that she purposefully tried to control her fear so as to resolve the matter and avoid continued fear during the night. Second, it is of no moment that to some witnesses C.T. did not appear afraid because different people respond to threats and attacks differently. As stated, C.T.'s experiences taught her to respond as she did. Third, C.T.'s size and physical appearance of strength are not correlated to an absence of fear; in fact, there is no evidence those things deterred Thurnan from attacking her or helped her deflect his attacks. To the contrary, the evidence was that C.T. relied on her words to try to calm him down so that he would realize the harm he had caused her. As the totality of the circumstances shows, there is no substantial evidence from which a rational trier of fact could conclude that Thurnan committed the lesser offense and that he is not guilty of the greater offense. (People v. Williams (2015) 61 Cal.4th 1244, 1263.) Accordingly, there was no basis for the trial court to instruct the jury regarding the lesser included offense of attempted threat. (People v. Waidla, supra, 22 Cal.4th at p. 733.)
II.
Thurnan contends the count 1 assault with a deadly weapon conviction must be modified to simple assault because insufficient evidence showed that the rock he threw at C.T. was a deadly weapon. He contends that a rock is not an inherently dangerous weapon; therefore, the prosecutor was required to prove it was used in a way likely to inflict great bodily injury or death, but the prosecutor failed to do so. A. Applicable Law
Under the substantial evidence standard of review, this court reviews the entire record in the light most favorable to the judgment to determine whether it contains " ' "evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find [the elements of the crime] beyond a reasonable doubt." ' " (In re George T., supra, 33 Cal.4th at pp. 630-631; see also People v. Harris (2013) 57 Cal.4th 804, 849; People v. Lee (2011) 51 Cal.4th 620, 632.) We presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (People v. Thompson (2010) 49 Cal.4th 79, 113.) " 'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.' " (People v. Lee, at p. 632.) " ' " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' " (In re George T., at pp. 630-631.) The standard applies whether direct or circumstantial evidence is involved. (People v. Thompson, at p. 113.)
In People v. Aguilar (1997) 16 Cal.4th 1023, 1026 (Aguilar), the California Supreme Court addressed whether hands and feet can constitute deadly weapons under section 245. In doing so, the court stated: "As used in section 245, subdivision (a)(1), a 'deadly weapon' is 'any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.' " (Aguilar, at pp. 1028-1029.) Although "[s]ome few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law . . . Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue." (Id. at p. 1029; accord, In re B.M. (2018) 6 Cal.5th 528, 547.) B. Analysis
A rock is not an inherently deadly weapon as a matter of law. (Aguilar, supra, 16 Cal.4th 1023; accord, People v. White (1963) 212 Cal.App.2d 464, 465.) Therefore, to prove this charge, the prosecutor was required to show that Thurnan used the rock in such a manner that was likely to cause death or great bodily injury. We conclude the prosecutor did so by adducing evidence from three witnesses that Thurnan assumed a baseball pitcher's stance and forcefully threw the rocks at C.T. The jury could reasonably conclude that such force was aimed at causing great bodily injury. And, in fact, C.T.'s arm bled and became swollen. She required medical attention at the scene of the incident, and two days later she went to the emergency room when her injury worsened. The totality of this evidence is sufficient to support Thurnan's count 1 conviction.
III.
Thurnan contends his assault with a deadly weapon conviction and the enhancement for personal use of a deadly or dangerous weapon must be reversed because the jury instructions erroneously allowed the jury to find that a rock is an inherently deadly or dangerous weapon. He claims the prosecutor "made at least two statements in closing argument that suggested that a rock of sufficient size was an inherently deadly weapon : 'Rocks are deadly weapons,' and 'We know that rocks can be deadly weapons if they're big enough . . . .' . . . Other portions of the prosecutor's argument addressed the manner in which Thurnan threw the rock and the extent of [C.T.'s] injury . . . , but one or more jurors could well have relied on the statements quoted above to find that the rock was inherently deadly." Because we address the matter on the merits, we need not address his alternative claim that his trial counsel rendered ineffective assistance by failing to object to the jury instructions. A. Background
The prosecutor's closing argument focused on the manner in which Thurnan threw the rocks at C.T.: "We had three separate witnesses tell you what they saw. They described to you what [Thurnan's] body was doing. [P.P.] said that it was as if [Thurnan] was playing baseball and he was throwing from second [base]. A full backswing and a follow-through with his body going into it. Again his whole body put into that. [¶] [B.S.] said that it was as if [Thurnan] was playing baseball and he was the pitcher. Again a full backswing with his arm, full forward—forward throwing and his whole body; and [S.S.], the person who just happened to walk in in the last part of the incident. Full backswing following through and putting his whole body into it." The prosecutor continued: "Rocks are deadly weapons. They can be deadly weapons. We're not talking about pebbles. We're not talking about skipping stones on a pond. We're talking about a rock hurled with enough force, with enough anger to cause this injury." The prosecutor reiterated: "Mr. Thurnan didn't throw a pebble at [C.T.] He didn't skim a rock at her. He threw a rock so hard, so big that it caused this [injury]. We know that rocks can be deadly weapons if they're big enough and if they're thrown hard enough, it [sic] can kill people. It [sic] can hurt them. Can cause broken bones and [C.T.] is lucky that this is the most [injury] that she walked away with."
Defense counsel argued in closing: "For the threat and for the assault with a deadly weapon, [the People] have to prove that [Thurnan] personally used a weapon; and when we talk about the threat, Count 3, they have to pinpoint—excuse, me you have to pinpoint when the threat happened, and in order for you to find this allegation true, that at the time of that particular threat Mr. Thurnan was displaying a weapon at the time of the threat, not in between but at the time that he made the threat he was displaying the weapon or that he hit [C.T.] with the weapon at the time of the threat, and the witnesses were going back and forth. Some of them were saying, yeah, he was threatening to kill her when he had the rock. Others were saying well, he was throwing the rock, he threw the rock, and then he was threatening her, but it wasn't at the same time.
The trial court instructed the jury with the standard versions of CALCRIM No. 875 (assault with a deadly weapon) and CALCRIM No. 3145 (personal use of a deadly weapon). These instructions define a "deadly weapon" as "any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury." (CALCRIM No. 3145, italics added.) B. Applicable Law
Aledamat, in which the defendant threatened to kill his victim with a box cutter (Aledamat, supra, 8 Cal.5th at p. 4), controls this case. In Aledamat and here, the trial court instructed the jury with CALCRIM Nos. 875 and 3145 "that a weapon could be either inherently deadly or deadly in the way defendant used it." (Aledamat, supra, 8 Cal.5th at p. 6.) During closing argument in Aledamat, the prosecutor "argued that the box cutter was an 'inherently deadly weapon,' noting that 'you wouldn't want your children playing with' it." (Id. at p. 5.) Defense counsel argued "the defendant did not use the box cutter in a way that would probably result in the application of force . . . . [And] never argued that, if he did assault the victim with the box cutter, the box cutter was not a deadly weapon." (Id. at p. 14.) The jury convicted the defendant of assault with a deadly weapon and found true the weapon allegation. (Id. at p. 5.)
The Court of Appeal reversed Aledamat's assault conviction, finding the jury instructions "erroneously permitted the jury to find the box cutter to be an inherently deadly weapon" and further finding there was " 'no basis in the record for concluding that the jury relied on the alternative definition of "deadly weapon" (that is, the definition looking to how a noninherently dangerous weapon is used).' " (Aledamat, supra, 8 Cal.5th at p. 5.)
The California Supreme court reversed that decision, holding that the Chapman v. California (1967) 386 U.S. 18 harmless error standard is the appropriate test for evaluating prejudice. (Aledamat, supra, 8 Cal.5th at p. 13.) Under this standard, "[t]he reviewing court must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, it determines the error was harmless beyond a reasonable doubt." (Ibid.)
The Aledamat court concluded the instructional error was harmless under that standard. It relied on a nonexclusive test for a reviewing court to examine "what the jury necessarily did find and ask[ ] whether it would be impossible, on the evidence, for the jury to find that without also finding the missing fact as well." (Aledamat, supra, 8 Cal.5th at p. 15.) It concluded that under the instructions, "the jury necessarily found the following: (1) defendant did an act with a deadly weapon (either inherently or as used) that by its nature would directly and probably result in the application of force; (2) defendant was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and (3) defendant had the present ability to apply force with a deadly weapon to a person." (Ibid.) The court concluded that in light of those findings, the jury necessarily found the instrument deadly as used and the error was harmless beyond a reasonable doubt because, " 'No reasonable jury that made all of these findings could have failed to find' that defendant used the box cutter in a way that is capable of causing or likely to cause death or great bodily injury." (Ibid.) C. Analysis
We agree the court's instructions with CALCRIM Nos. 875 and 3145 erroneously presented two alternative theories by which the jury "could find the [rock] a deadly weapon: (1) inherently, or (2) as used." (Aledamat, supra, 8 Cal.5th at p. 7.) Since a rock can be used for a nonviolent purpose, it is not deadly per se. Therefore, we must determine whether the instructional error was prejudicial under Aledamat, that is, by examining the entire cause, including the evidence and considering all relevant circumstances. (Id. at p. 13.)
To begin, there is no conflict in the evidence regarding the manner in which Thurnan threw the rocks at C.T. As noted, the prosecution witnesses provided the only testimony on that issue. They uniformly stated Thurnan threw the rocks with significant force, winding up as a baseball player would. It is unlikely the jury would have found the rock inherently deadly without considering how Thurnan used it. Thus, as in Aledamat, supra, 8 Cal.5th 1, we conclude that under the instructions given to the jury, it necessarily found: (1) Thurnan did an act—threw a rock that hit C.T. that (either inherently or as used) would directly and probably result in the application of force; (2) Thurnan was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone, as Thurnan threw multiple items at C.T. and had previously threatened to kill her; and (3) Thurnan had the present ability to apply force with a deadly weapon to a person, as he in fact positioned himself to do so. In making these findings, the jury also necessarily found that the rock was inherently deadly as used; therefore, any error was harmless beyond a reasonable doubt.
Moreover, we reject the Thurnan's contention that the prosecutor's closing argument contributed to prejudicial error. The prosecutor repeatedly asked the jury to consider the precise way Thurnan threw the rocks, and adduced the testimony of those who stated Thurnan adopted a baseball player's stance and movements, indicating Thurnan used a significant amount of force. Even the statement Thurnan claims was prejudicial was made in the context of how Thurnan used the rock: "Mr. Thurnan didn't throw a pebble at [C.T.] He didn't skim a rock at her. He threw a rock so hard, so big that it caused this. We know that rocks can be deadly weapons if they're big enough and if they're thrown hard enough, it [sic] can kill people. It [sic] can hurt them."
The challenged statements are phrased in the conditional tense, expressing the idea that rocks might not be deadly per se, but may become so "if" they are of a certain size and "if" they are thrown with a certain amount of force. The prosecutor's argument in its totality asked the jury to infer Thurnan threw the rocks with enough force to cause death or great bodily injury. For example, the prosecutor quoted a witness who stated Thurnan threw the rocks with "[a] full backswing following through and putting his whole body into it." And the prosecutor quoted another witness who said Thurnan was throwing these rocks as he was saying, "I'll kill you. I'm going to kill you"; thus the prosecutor argued Thurnan "was punctuating his threats with his actions because he was angry." As such, we conclude the prosecutor misspoke by suggesting a rock was inherently deadly. (Accord, Aguilar, supra, 16 Cal.4th at p. 1037.) However, under the evidence and instructions here, it was not reasonably likely the jury interpreted the prosecutor's argument to mean the rock was inherently deadly. Therefore, the instructional error was harmless beyond a reasonable doubt. (Aledamat, supra, 8 Cal.5th at p. 15.)
IV. Presentence Custody Credits
The People concede, and we agree, Thurnan is entitled to additional days of presentence custody credit. Thurnan was in custody from March 8, 2017, until he was sentenced on August 11, 2017, which amounts to more than the 147 actual days and 146 conduct credits the court erroneously awarded him. Under section 4019, subdivision (f), he was entitled to accrue two days of conduct credit for every two days of actual custody. We direct the court to recalculate Thurnan's presentence custody credits and amend the abstract of judgment accordingly.
V. Sentencing
Thurnan contends we should remand this matter to the trial court to exercise its discretion to strike the five-year sentence imposed for the serious felony strike prior under section 667, subdivision (a) because during the pendency of this appeal, the Legislature passed a law amending section 1385 giving the court such discretion.
On September 30, 2018, the Governor signed S.B. 1393 which, effective January 1, 2019, amends sections 667 subdivision (a) and 1385 subdivision (b) to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.) Under the former versions of these statutes, the court was required to impose a five-year consecutive term for "any person convicted of a serious felony who previously has been convicted of a serious felony" (former § 667, subd. (a)), and the court had no discretion "to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667." (Former § 1385, subd. (b).)
People v. Garcia (2018) 28 Cal.App.5th 961 held that S.B. 1393 is retroactive. In that case, as here, the People conceded that S.B. 1393 applies retroactively. (Garcia, at p. 973.) The Garcia court ruled that "it is appropriate to infer, as a matter of statutory construction, that the Legislature intended S.B. 1393 to apply to all cases to which it could constitutionally be applied, that is, to all cases not yet final when S.B. 1393 becomes effective on January 1, 2019." (Garcia, at p. 973; accord, In re Estrada (1965) 63 Cal.2d 740, 744-745 ["If the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then, in our opinion, it, and not the old statute in effect when the prohibited act was committed, applies."]; People v. Conley (2016) 63 Cal.4th 646, 657 ["The Estrada rule rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not"].) We agree with the Garcia court's analysis; accordingly, we follow it and remand this matter for resentencing.
DISPOSITION
The sentence is vacated and the matter is remanded to the trial court with directions to permit Keith Omar Thurnan to bring a motion to dismiss the serious felony prior conviction (section 667, subdivision (a)(1)) in light of S.B. 1393, and to exercise its discretion as may be appropriate. If the prior conviction is dismissed the court shall resentence Thurnan accordingly. If the prior conviction is not dismissed the previous sentence shall be reinstated. In all other respects, the judgment is affirmed. The trial court is also directed to recalculate Thurnan's custody credits consistent with this opinion, prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
O'ROURKE, J. WE CONCUR: BENKE, Acting P. J. IRION, J.