Opinion
F077196
04-10-2020
THE PEOPLE, Plaintiff and Respondent, v. DOUGLAS DAVID WALKER, Defendant and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F14901971)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. W. Kent Hamlin, Judge. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
This case arises from a domestic disturbance in February 2014 for which defendant Douglas David Walker was charged with assaulting his girlfriend and then attempting to dissuade her from assisting in the prosecution of the case against him and, in doing so, violated a criminal protective order. Defendant was subsequently charged with inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a); count 1), making criminal threats (§ 422; count 2), four counts of attempting to dissuade a witness/victim from reporting that victimization to law enforcement and judicial officers (§ 136.1, subd. (b)(2); counts 3-6), and misdemeanor contempt of court for violation of a criminal protective order (§ 166, subd. (c)(1); (count 7). Defendant was also alleged to have three prior serious felony convictions pursuant to section 667, subdivisions (b)-(i), and section 1170.12, subdivisions (a)-(d); that defendant had suffered three prior serious felony convictions within the meaning of section 667, subdivision (a)(1); and that defendant suffered four prison priors under section 667.5, subdivision (b).
All subsequent statutory references are to the Penal Code unless indicated otherwise.
Following a court trial, defendant was found guilty as to counts 1, 4, 5, 6, and 7, and not guilty as to counts 2 and 3. Defendant admitted all of the alleged prior strikes, prior serious felonies, and prison priors. The court sentenced defendant to an aggregate prison term of 19 years determinate, plus a term of 25 years to life as follows: four years on count 4 (§§ 18, 136.1, subd. (b)(2), 667, subd. (e)(1), 1170.15), a consecutive term of four years on count 5 (§§ 18, 136.1, subd. (b)(2), 1170.15); a consecutive term of six years, plus five years for the serious felony prior on count 1 (§§ 273.5, subd. (a), 667, subds. (a)(1), (e)(1)); and a consecutive, independent term of 25 years to life, pursuant to the Three Strikes law on count 6 (§ 667, subd. (e)(2)(A)(ii)). The court struck defendant's other prison priors and also two of defendant's three strikes on counts 4 and 5, and presumably as to count 1.
The court expressly struck two of defendant's three strikes as to counts 4 and 5, but did not mention the strikes as to count 1; presumably, because the middle term was imposed on count 1 and then doubled pursuant to section 667, subdivision (e)(1), for one prior serious felony conviction, two of the prior strikes were ostensibly stricken by the court.
On appeal, defendant claims (1) the trial court erred in admitting testimonial hearsay; (2) the conviction for count 1 was not supported by substantial evidence, and upon reversal of this conviction, the matter should be remanded for resentencing; (3) the sentences for counts 4 and 5 should have been stayed under section 654 because the conduct underlying those counts was indivisible from, and comprised the same objective as, the conduct underlying count 6; (4) should the sentences for counts 4 and 5 not be stayed, remand for resentencing is nonetheless required because the trial court did not understand its discretion to impose concurrent rather than consecutive sentences for counts 4 and 5 under section 1170.15; and (5) the case should be remanded for the trial court to consider whether to dismiss defendant's section 667, subdivision (a)(1), prior serious felony enhancement pursuant to Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1, 2 (Senate Bill No. 1393 or Sen. Bill No. 1393)), which became effective while his case has been pending.
The People concede the matter should be remanded for resentencing on counts 4 and 5 because the trial court did not understand its sentencing discretion under section 1170.15. The People also concede remand is necessary for the trial court to have an opportunity to consider dismissing defendant's prior serious felony enhancement pursuant to Senate Bill No. 1393. The People dispute there was any error with respect to defendant's remaining claims. We accept the parties' agreement with respect to the application of section 1170.15 and Senate Bill No. 1393. In all other respects, the judgment is affirmed.
FACTUAL SUMMARY
K.A. was the victim in this case, and she was living on Andrews Avenue in an apartment building on the night of the incident, February 25, 2014. K.A.'s neighbor, Rain, was living with his spouse and child in an apartment next door to K.A. At around midnight on February 25, Rain heard banging on the front door. When Rain opened the door, K.A. appeared and she was crying, upset and frantic. Rain and his spouse allowed K.A. to come into their apartment and tried to calm her down. K.A. kept repeating that she was scared and fearful, and she expressed concern about her mother who was still in K.A.'s apartment. Rain heard K.A. say, "he's going to kill me." Rain and his spouse assumed K.A. was afraid of her husband, but K.A. said it was not her husband; Rain thought K.A. said it was her boyfriend, although she never identified a boyfriend. K.A. had a bloody nose, and she kept telling them someone was going to come to the door and that they should not open it. To help calm K.A., Rain and his spouse turned off the lights in the front of the apartment and locked the door and did not open it again until the police arrived and identified themselves.
All further date references are to the year 2014 unless otherwise indicated.
K.A. had a small bottle of alcohol with her, but the bottle was empty, and she threw it away while she was in Rain's apartment. Rain's spouse called 911, and while his spouse was speaking with the dispatcher, K.A. was making statements in the background. K.A. can be heard on the 911 recording saying, "his name is Doug," she identifies herself as K.A., she can be heard saying, "[n]o" to the question whether she needed an ambulance, and referencing, "my mom" and "my house."
Another of K.A.'s neighbors, Cecelia B., testified at trial. Cecelia had been living on Andrews Avenue with her daughter, Asia, in an apartment that shared a wall with K.A.'s apartment. Cecelia was on friendly terms with K.A., who had frequently visited Cecelia at Cecelia's and Asia's apartment. Cecelia had seen injuries on K.A. in the past, and in the two weeks before February 25, she had seen K.A. "beat all up," "like, ... maybe her jaw could have been broken"; Cecelia also observed redness on K.A.'s face and big bruises.
Cecelia was familiar with defendant. K.A. had told her defendant was living with K.A., Cecelia had seen him coming out of that apartment at times with K.A., and she thought they were in a dating relationship as she had seen them holding hands and coming and going from the apartment together.
Cecelia had seen defendant earlier that day somewhere else. That night, she heard bumping and fighting through the wall shared with K.A.'s apartment. Later, when Cecelia was coming out of her apartment, she saw K.A. getting out of a police car, and then K.A. approached Cecelia and asked to use her cell phone. This was not unusual in one respect because K.A. had often asked to borrow Cecelia's cell phone to make calls. To Cecelia, K.A. seemed nervous.
K.A. made a call with the phone in speaker mode, and Cecelia listened to the entire conversation while an officer stood by. Cecelia heard the man on the call say he was at a bus stop, and K.A. asked him for the location. K.A. accused the man of acts of violence, and she told him he should not have used a bat; he responded she should not have done something, that she should not have gone "in[to] his pockets or something." Cecelia recognized the voice on the phone as defendant because K.A. was using his name, but also because Cecelia had spoken to defendant before in passing. Moreover, in the early hours of the next morning, around 2:00 or 3:00 a.m., the same male voice called Cecelia's cell phone and asked to speak with K.A.; at that time, he identified himself as "Dougie."
Asia Brown testified she knew K.A. as the "cool" neighbor who would come over to the apartment Asia shared with Cecelia, and they would talk quite often. K.A. lived in the unit next to Asia and her mother, which had a common wall. Asia was familiar with defendant, and she knew him as K.A.'s boyfriend. Asia believed they were in a relationship and lived at K.A.'s apartment because K.A. had told them so. Defendant was there every day, and she had seen him coming and going out of the apartment at all hours of the day.
On the night of the incident, Asia heard noises through the wall shared with K.A., including bumping noises; she could not identify particular voices, but heard what she thought sounded like wrestling, tussling, and maybe screaming. In the two weeks before the incident, she had seen K.A. with physical injuries, including her face appearing "really big and bruised." K.A.'s arm or hand seemed affected too, the bruising on her face encompassed nearly her entire face, and Asia thought perhaps there was an open cut above one of K.A.'s eyebrows.
On the night of the incident, Asia was aware that her mother loaned K.A. a cell phone, and Asia was present when K.A. was speaking on the speaker phone outside the apartment door while the police were there. Asia could tell it was defendant on the other end of the line because she knew his voice from the other times they had spoken, which she estimated included more than 10 brief interactions; additionally, she heard K.A. calling him "Doug" while they were on the phone. According to Asia, K.A. was trying to lure Doug back to the apartment. K.A. accused him of being violent toward her, and she said, "[w]hy did you hit me?" or "[w]hy did you hurt me[?]" or words to that effect. Asia also heard K.A. say, "[y]ou hit me with a baseball bat," and Asia believed defendant responded that he did not mean it, or words to that effect. Asia did not remember defendant saying to K.A. that she should not have gone through his pockets; instead, Asia recalled he apologized with the words, "I'm sorry."
Officer Matthew Paley testified that he was working as patrol on the night of the incident with Officer Ronnie Pack. They were dispatched to Andrews Avenue based on a domestic violence call. Paley was the assisting officer, so while Pack was making contact with K.A., Paley was interviewing witnesses and canvassing.
Paley spoke with Asia and Cecelia, and he was also present for a cell phone conversation projected by speakerphone between K.A. and a man. Palely testified he was trying to ascertain the location of the suspect, and he was encouraging K.A. to elicit some clue as to where the suspect was located so the police could find him. Paley had never contacted defendant before; K.A. identified the person on the phone as her boyfriend. Paley did not recall if he was present for the entire conversation. After the call, Paley reported driving around the area looking at some bus stops to see if anyone there matched the description of the suspect. Paley testified he did not recall whose idea it was to contact the suspect by cell phone; he reiterated he did not hear much of the conversation—his primary focus was the suspect's location; he remembered hearing a man's voice, but not what the man was saying, and he did not stay nearby for the entirety of the call.
Officer Pack testified he was dispatched with Paley to Andrews Avenue based on a report that a female was screaming that she had been assaulted by her boyfriend. Pack contacted K.A. around the corner from her apartment; she was fearful and "just kind of all over the place emotionally." Pack was able to get a statement from her, but it was difficult because she was jumping around in her narrative, so the information came from her in bits and pieces. During the interview, K.A. appeared afraid and her facial expressions registered fear; she seemed to be intoxicated by the way she slurred her speech, and Pack detected an odor of alcohol emanating from her. Pack noted K.A. had a black eye on her left side, and she had red marks near her right eye, and some redness on her chin. During the interview, he went into K.A.'s apartment looking for her elderly mother who was living with her, as K.A. was concerned that her mother might have been harmed; when they located K.A.'s mother in the apartment, however, she was safe.
Pack testified K.A. demonstrated how her attacker raised a wooden dowel in his right hand—she held the dowel in her right hand, above her head and shoulders, one-handed. The dowel was used as a security device on the sliding glass doors in the apartment; Pack did not collect the dowel as evidence, and it was not investigated. Pack showed K.A. a picture of defendant, and K.A. identified him as the person who assaulted her.
Officer Scott Payn testified that he was dispatched to Andrews Street the day after the incident because police had received an anonymous phone call that the suspect, defendant, was at that location. When he arrived at the location, two other officers were already there, and they spent about 30 minutes attempting to make contact with anyone in the apartment by knocking and announcing their presence. They obtained keys from the manager, entered the apartment, and arrested defendant.
Justin Williamson, an investigator with the district attorney's office, met with Rain on March 6 to discuss the incident. According to Williamson, Rain told him that K.A. kept repeating over and over, "he's going to kill me." K.A. also indicated to Rain that she was scared because her mother was still in her apartment. Rain told Williamson that K.A. stated whomever she was afraid of had a baseball bat or a pole and that he had already hit her once. Rain also told Williamson that he and his spouse had turned off the lights in the front room and locked the doors, just in case someone was looking for K.A. To Williamson, Rain seemed upset when recounting the incident and recalling what happened.
Williamson testified he also spoke with K.A. on March 6 about the incident. He observed K.A. emanated fear and anger, and he sensed she was recanting her original story. She became emotional when they discussed the court process and what to expect as a victim of domestic violence. He observed K.A. had bruising on her face that appeared to be in the healing process. Williamson also spoke with Cecelia and Asia that same day. On the night of the incident, Asia reported she heard K.A. say something through the wall to the effect of, "[p]lease, don't. No." Cecelia and Asia recounted that K.A. had used Cecelia's cell phone to contact defendant that night. When K.A. was on the phone with defendant, Cecelia said she heard K.A. indicate defendant had tried hitting her with a bat, and that defendant replied that K.A. should not have gone through his pockets. Cecelia also reported she knew it was defendant on the phone because defendant called her later that night and identified himself as "Dougie."
On February 28, defendant was charged with causing corporal injury to a cohabitant/dating partner in violation of section 273.5, subdivision (a). On March 7, appellant was served with a protective order that precluded "any contact personal, electronic, telephonic, or written" with K.A. After defendant was arrested, he made several recorded phone calls from the jail to K.A., encouraging her to avoid coming to court, to avoid service of a trial subpoena upon her, and to recant her story that defendant injured her on February 25. Specifically, on March 10, at approximately 5:58 p.m., defendant called her and told her not to talk to the attorney with the district attorney's office or anyone else. K.A. also told defendant she could "play it off as ... you know I was f***in' pissed and then I f***in' came home and you're gone. You f***in' left. I go oh f*** he's over there f***in' this b**** now. Oh hell no. It's like alright mother f*****, you're going down now. I didn't realize that how how serious it was gonna be. You know?"
Later the same day, on March 10, defendant called K.A. and, during the course of the conversation asked her, "why don't you dodge the next subpoena? Just don't answer the door whatever and just you know what I mean?"
On March 11, defendant again called K.A. and they discussed her not being available to accept a subpoena:
"[K.A.]: I, If they come uh if they come trying to subpoena me again[,] they ain't getting in the door.
"[Defendant]: No don't. Don't even answer the door. Just act like you're not even there babe. [¶] ... [¶] Don't answer the door. Don't even accept a subpoena. You know what I mean?"
On March 16, defendant again called K.A. and they discussed K.A. recanting her story at the preliminary hearing and attempting to evade a trial subpoena.
"[Defendant]: ...listen, listen. There's a guy in here right now right [¶] ... [¶] ...that's already had, that's already had two domestics. [¶] ... [¶] The, and he beat both of them[,] right? [¶] ... [¶] Right, and... [¶] ... [¶] ...he already told me how to go about it, right? [¶] ... [¶] This is what we're gonna do. This is what we're gonna do. This is what we're gonna do, listen. He told me if she's recanting her story and saying you didn't do it or nothing, right. [¶] ... [¶] He goes have her come to the preliminary hearing, which that's the fourth. He goes have her get on the stand and recant her story and everything and tell 'em you didn't do it. He goes then if they still bound you over for trial, the judge don't throw it out right then, and they bound you uh for trial... [¶] ... [¶] ...when it comes trial time, for you to go to court for trial. [¶] ... [¶] He goes, and they try and subpoena her or whatever, he goes have her just get ghost and don't show up for the trial. He goes then they have to throw it out because there's no witness and he goes and, and to top it off, she already came to the preliminary hearing and told them you didn't do it. So so... [¶] ... [¶] ...when you get ready for trial, if she's not there, if she don't show up for court, they have to throw it out and let you out. [¶] ... [¶] He goes, I already beat two domestics doing it like that. [¶] ... [¶] And what I'm gonna do is, I'm gonna have f***in' Shy come pick you up and take you to Calwa if I have to. You know what I mean? [¶] ... [¶] To stay over there during the trial so they don't try and f***in' uh, uh, uh, put an attachment to you. Put somebody with you or something. You know what I mean to make sure you come... [¶] ... [¶] Okay but, but I'm telling you, if we go to trial I need you to be gone because the DA will try and come get you. Then he'll send cops to come get you, all that, [¶] ... [¶] And then we can't have, they might. They might try to, yeah. [¶] ... [¶] So that's why I need you to be gone. You know what you do? You know, you know what you do that week of trial, right? [¶] ... [¶] Just go stay at your f***in', go stay at your daughter's for a couple of days, alright? And then, but what they'll do, they'll postpone it, they'll postpone the trial, until they try and locate you. You know what I mean? [¶] ... [¶] So you're just gonna have to, you're gonna ... just have to not be answering your phone. You're gonna, just gonna have to stay gone, alright? [¶] ... [¶] That, all that don't matter. You [know] you just ... make sure you're gone. Don't don't accept no subpoena, nothing. You know what I mean? [¶] ... [¶] I want you to recant your story and everything."
Defendant was charged with four counts of dissuading a witness/victim under section 136.1, subdivision (b)(2).
Defendant waived trial by jury, and the case was tried before the court in December 2017. The trial court found defendant guilty on the charge of corporal injury to a cohabitant/dating partner (§ 273.5, subd. (a); count 1), three counts of attempting to dissuade a witness from assisting in the prosecution of his case (§ 136.1, subd. (b)(2); counts 4, 5, & 6), and for misdemeanor criminal contempt for violating a criminal protective order (§ 166, subd. (c)(1); count 7).
DISCUSSION
I. Adoptive Admissions Do Not Implicate the Confrontation Clause
A. Background
Cecelia testified that when K.A. was on the phone with a man Cecelia recognized as defendant from other occasions she had spoken with him, K.A. told defendant he "shouldn't have used a bat," and defendant responded that K.A. "shouldn't have did something, went in his pocket or something." Asia, who was also present for the cell phone conversation on speakerphone between K.A. and defendant, testified K.A. accused him of being violent toward her. Asia testified K.A. said, "[w]hy did you hit me?" or "[w]hy did you hurt me[?]" and "[y]ou hit me with a baseball bat." Asia testified defendant responded that he "'didn't mean to'" or words to that effect. Asia also recalled him saying he was sorry.
Defendant's counsel objected that Cecelia's and Asia's testimony was hearsay in this regard. The court overruled the objections, determining the statements were admissible as adoptive admissions.
On appeal, defendant argues the testimony of Asia and Cecelia about K.A.'s statements to defendant while on the cell phone constituted testimonial hearsay in violation of his Sixth Amendment right to confrontation pursuant to Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and its progeny. Defendant maintains Officer Paley orchestrated the entire conversation between K.A. and defendant; K.A.'s statements to defendant, therefore, were testimonial because they were statements to a police officer that a reasonable person would have understood were collected for subsequent use at trial. Defendant argues that, while no objection on a constitutional basis may have been made at trial, such an objection was futile because the court had already indicated the hearsay was not testimonial. Defendant further argues that if this court deems the constitutional argument to have been waived below, trial counsel's failure to make an objection on constitutional grounds was ineffective assistance which was prejudicial.
The People argue defendant's constitutional argument was forfeited for failure to interpose an objection on that ground at trial. Further, the failure of defendant's trial counsel to interpose the objection did not constitute ineffective assistance of counsel because the testimony was admitted for a nonhearsay purpose and pursuant to a hearsay exception, and it was not testimonial. Further, the admission of this testimony was not prejudicial to defendant.
B. Analysis
In determining the admissibility of evidence, the trial court has broad discretion, and its decision is reviewed only for an abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 196-197.) The trial court did not err in admitting K.A.'s out-of-court statements introduced through the testimony of Asia and Cecelia.
1. Confrontation Clause Argument is Forfeited
Defendant argues that in admitting Asia's and Cecelia's testimony, the trial court had already concluded it was not testimonial; thus, although defendant's trial counsel did not object on constitutional grounds, it would have been futile to make an objection on that ground. We disagree: the constitutional argument was forfeited, but even if the claim of error had been preserved, it would fail.
"Ordinarily, 'the failure to object to the admission of expert testimony or hearsay at trial forfeits an appellate claim that such evidence was improperly admitted.' (People v. Stevens (2015) 62 Cal.4th 325, 333; accord, Evid. Code, § 353, subd. (a).)" (People v. Perez (2020) 9 Cal.5th 1, 7.) Similarly, an objection that a particular statement violates the hearsay rule does not automatically preserve a Sixth Amendment confrontation clause objection. (Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 313, fn. 3; People v. Redd (2010) 48 Cal.4th 691, 730-731; People v. Chaney (2007) 148 Cal.App.4th 772, 777; but see People v. Rangel (2016) 62 Cal.4th 1192, 1215 ["[I]n a case tried before Crawford[, supra, 541 U.S. at pages 53-55], a defendant does not forfeit a Crawford challenged by failing to raise a confrontation clause objection at trial."]; People v. Holmes (2012) 212 Cal.App.4th 431, 436 [where context is clear court and opposing counsel were aware confrontation clause was the basis of the hearsay objection, constitutional objection is preserved].)
Here, defendant's confrontation clause argument was forfeited. Defendant's trial counsel objected on the ground of hearsay to Cecelia's and Asia's testimony about what they heard K.A. say to defendant over the phone and defendant's response, but there was no objection interposed based on the confrontation clause. While defendant argues any objection would have been futile because the court had already deemed the objected-to out-of-court statements were not testimonial, defendant cites a portion of the trial court's discussion of Rain's testimony, not that of Asia or Cecelia. The trial court did not make any conclusions whether Asia's and Cecelia's was testimonial under Crawford. As such, the confrontation clause argument was not preserved on futility grounds. (See People v. Chism (2014) 58 Cal.4th 1266, 1291 [a litigant need not object if doing so would be futile].)
For the reasons discussed below, even if the confrontation clause argument had been preserved, it was without merit and there was no error in admitting the testimony. As such, any failure by defendant's trial counsel to object on that ground did not constitute ineffective assistance of counsel; moreover, since the admission of the evidence was not erroneous, no prejudice accrued to defendant.
2. No Error Admitting the Testimony
K.A.'s out-of-court statements to defendant and his responses during their cell phone conversation, introduced through Cecelia and Asia, were admissible as adoptive admissions under Evidence Code section 1221 and did not implicate the Sixth Amendment's confrontation clause.
"Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth." (Evid. Code, § 1221.) Pursuant to this provision, "[i]f a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt." (People v. Preston (1973) 9 Cal.3d 308, 313-314.)
Here, K.A. accused defendant of violence toward her, including hitting her. He did not deny the statements, but indicated he heard and understood the statements when he responded that she should not have gone through his pockets and that he was sorry. Defendant makes no argument these statements did not constitute adoptive admissions under Evidence Code section 1221; rather, he argues K.A.'s statements, as opposed to defendant's responses, were offered for the truth of the matter asserted (i.e., that defendant hit her), and because K.A. made the statements at the behest of Officer Paley and in his presence, the statements were testimonial under the United States Supreme Court's confrontation clause jurisprudence. This argument, however, misapprehends the nature of adoptive admissions.
First, the incriminating statement by another that the defendant adopts is not admitted for purposes of establishing the truth of the matter asserted, but is admitted to supply the meaning of the defendant's conduct or silence in the face of an accusatory statement. Then, "'once the defendant has expressly or impliedly adopted the statements of another, the statements become his own admissions .... [Citation.] Being deemed the defendant's own admissions, we are no longer concerned with the veracity or credibility of the original declarant.'" (People v. Combs (2004) 34 Cal.4th 821, 842.) In other words, K.A.'s accusations became defendant's statements once the trier of fact, here the court, concluded defendant had adopted them as his own. Once they are considered adoptive admissions, the trier of fact may conclude the defendant admitted the statement was true. (CALCRIM No. 357.) The defendant's adoptive admissions do not implicate the Sixth Amendment's confrontation clause. (People v. Armstrong (2019) 6 Cal.5th 735, 790 (Armstrong).)
If the trier of fact concludes the statements were not adopted by the defendant, the statements and the defendant's response is not considered for any purpose. (CALCRIM No. 357 ["If you decide that any of these requirements has not been met, you must not consider either the statement or the defendant's response for any purpose."].)
In Armstrong, the defendant (Armstrong) was accused, and ultimately convicted, of kidnapping, robbing, raping, torturing, and murdering a woman (Sigler) on December 29, 1998. (Armstrong, supra, 6 Cal.5th at pp. 744, 748.) A day or two after the crime, Armstrong was watching television news with three others—Pearson, Kendrick, and a third man. Kendrick testified that a news report about Sigler's murder came on the air, and Kendrick said, "'Oh, I know who did that. [¶] ... [¶] Killer Kev [Kevin Pearson] did it.' Armstrong whispered to Pearson, 'How did [Kendrick] know?' Pearson then recounted details of the crime, including that Hardy, Armstrong, and he had encountered a woman, raped her in the bushes, and then beat her with a stick. The People introduced a tape of Kendrick's January 1999 police interview, which included additional specifics from Pearson and Kendrick's conversation in Armstrong's presence. Armstrong sat silently throughout the discussion." (Id. at p. 789.)
Overruling the defendant's objection on hearsay and confrontation clause grounds, the trial court admitted Kendrick's testimony. (Armstrong, supra, 6 Cal.5th at p. 789.) The high court agreed with the trial court's determination, holding that Armstrong had adopted Pearson's statements: "Armstrong implied that Kendrick's accusation of Pearson was true when he asked, 'How did he know?' Armstrong then did not challenge the recitation of events, instead sitting silently as Pearson recounted Armstrong's participation in the crime. Kendrick's recitation of Pearson's statements fell within the adoptive admission exception to the hearsay rule." (Id. at pp. 789-790.)
Our high court reasoned the admission of this testimony did not raise any constitutional concerns. (Armstrong, supra, 6 Cal.5th at p. 790.) "Adoptive admissions pose no problem under the Sixth Amendment of the United States Constitution and Crawford v. Washington[, supra,] 541 U.S. 36 because '"[t]he 'witness' against the defendant is the defendant himself,"' notwithstanding that the words the defendant adoptively admitted were spoken by someone else. [Citations.] The [United States Supreme Court] has never suggested that the Crawford rule bars admission of a defendant's own statement." (Ibid.) The court further explained that although Pearson was potentially unavailable for cross-examination to the extent that he might have invoked his right against self-incrimination, that was immaterial. (Ibid.) "Through his silence, Armstrong adopted Pearson's statement as his own and bore witness against himself. Armstrong cannot complain that he was deprived of his confrontation clause rights by the introduction of his own admissions." (Ibid.)
The same reasoning applies here. K.A.'s statements, adopted by defendant, did not implicate the confrontation clause because through adoption they became defendant's own statements, even though spoken by K.A. Defendant argues K.A.'s statements to him while on the phone were made in the presence of a police officer who defendant claims was directing the phone conversation; as such, K.A.'s statements were testimonial—i.e., when viewed objectively in light of all the circumstances, the "'"primary purpose" of the conversation was to "creat[e] an out-of-court substitute for trial testimony."'" (People v. Rangel, supra, 62 Cal.4th at pp. 1214-1215, quoting Ohio v. Clark (2015) 576 U.S. ___, ___ [135 S.Ct. 2173, 2183].) Again, however, K.A.'s statements were originally admitted for a nonhearsay purpose—for the factfinder to determine whether defendant had adopted the statements as his own, not for the truth of the matter asserted. Once the trial court, acting as the trier of fact, determined K.A.'s statements had been adopted by defendant, K.A.'s statements became defendant's admissions, which did not, as held in Armstrong, implicate the confrontation clause. (Armstrong, supra, 6 Cal.5th at p. 790.)
For these reasons, we also reject defendant's argument his trial counsel rendered ineffective assistance by failing to object under the confrontation clause to the admission of K.A.'s statements. An ineffective assistance of counsel claim based on a trial counsel's failure to render an objection requires proof there was an absence of a reasonable tactical explanation for the omission and also that the motion or objection would have been meritorious. (People v. Mattson (1990) 50 Cal.3d 826, 876.) Defendant cannot establish either that his trial counsel lacked any reasonable tactical explanation for the omission or that the objection would have been meritorious because the testimony in question did not implicate the confrontation clause. The trial court did not err in admitting this testimony.
II. Substantial Evidence Supports Defendant's Conviction on Count 1
A. Background
The court found defendant guilty on the charge of causing corporal injury to a cohabitant/dating partner under section 273.5, subdivision (a). The court set forth the basis for its finding as follows:
"Like most victims of domestic violence[, K.A.] has issues that interfere with any kind of a credible report. Specifically[,] I think it's clear she was
under the influence of alcohol at least, but that doesn't change, ultimately, the credibility of her statement. And[,] here's—here's what makes her initial statements believable and makes them, along with some of the subsequent evidence, enough to meet the burden of proof as to Count 1. [¶] First of all, as to the relationship, that's clearly established.... Question now becomes was she struck and did the actions of this defendant cause traumatic condition. First of all, we have her hysterical statements that are into evidence, either through her hysterical and crying statements to officers, to neighbors, or as her in the background of the 9-1-1 call. Those statements pretty well establish that at least at the point that those statements were made, immediately after the crime, and they were received in evidence under [section] 1240 of the Evidence Code because they qualified as spontaneous statements or excited utterances. Um, that's not a testimonial statement, it's not a statement that defendant has a confrontation right to cross-examine her about. Those statements are in evidence, and they are sufficiently credible to at least get to a prima facia showing that this defendant, someone named Dougie, who is known to her, struck her and caused the injuries. I don't believe there's any statement in evidence that he hit her with a dowel, and certainly no statement that he hit her in the face with a dowel. And I don't think that the injuries are consistent with that, but the injuries are consistent with her being struck in some fashion, presumably with fists, and that's what she's described. Now[,] admittedly she's not very thorough in her description. She's drunk and she doesn't specifically say, He, hit me X number of times in the face with a fist, et cetera, but she rushes to a neighbor, um, hysterically reports that's she's concerned about her mother's well-being, still in the apartment, and then some of the circumstances of that report lend credibility to the report. Specifically[,] she doesn't want to identify him by name. If[,] in fact[,] he had not struck her and caused those injuries, if in fact some other cause explained those injuries, and she wanted to pin it on him because she was mad at him because she thought he was off with some other woman, there's no explanation for why she wouldn't give his full name, why she would be afraid, why would she constantly be saying, [']Don't open the door.['] Um, you know, that doesn't—that doesn't fit with her falsely attributing these injuries to the defendant. Also[,] what doesn't fit is her statements in that first transcript [of recorded jail calls between K.A. and defendant] where she says, [']I can play it off as I was pissed, I thought you were over there f***ing that b****.['] [']I can play it off['] makes it pretty clear what she's talking about. She's saying this is how [she's] going to recant [her] statements. But it doesn't make sense that she was playing it off—I mean, rather that she had falsely implicated him for these crimes, because she would have done a better job even drunk, even hysterical. She would have been more complete in her attributing these injuries to the
defendant and how she sustained them. Quite the contrary. She's afraid, she's not willing to disclose details, even his name. She doesn't want an ambulance. Those—those kinds of behaviors are not consistent with somebody falsely attributing a domestic violence incident to someone who is not guilty of doing so. Those are quite consistent with a victim, probably a regular victim, clearly a drunken victim, but a victim who is afraid to report and afraid of some kind of ongoing consequence if she does. So when you put that together with him saying in the first—in call number four, [']I want you to recant your story,['] her saying, [']I can play it off['] with such—as a different set of events having occurred, somebody else—there's no real explanation of how she got these injuries if they didn't come from the defendant. [']I live in a tough neighborhood['] I think is her excuse. You know, so—so at this point we have a clear relationship, we have him established beyond a reasonable doubt of having inflicted those injuries, and they are indeed a traumatic condition just from the photographs that are received, and described by others...."
Defendant argues his conviction under section 273.5, subdivision (a), for corporal injury to a cohabitant/dating partner (count 1) is not supported by substantial evidence. To prove a defendant is guilty under section 273.5, subdivision (a), the prosecution must prove (1) the defendant willfully inflicted a physical injury on his cohabitant/dating partner; (2) the injury resulted in a traumatic condition; and (3) the defendant did not act in self-defense or in the defense of someone else. (CALCRIM No. 840.)
Defendant argues there was evidence K.A. suffered a traumatic condition, but there was no evidence that defendant willfully inflicted the injury. Defendant argues the prosecution's theory of the case that he willfully inflicted injury on K.A. was mere speculation insufficient to support a verdict.
B. Standard of Review
"The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense[]" (Carella v. California (1989) 491 U.S. 263, 265, citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 357). On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence "'is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) "The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Zamudio, supra, at p. 357.)
"In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (People v. Zamudio, supra, 43 Cal.4th at p. 357.) "'[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt ....'" (People v. Nguyen, supra, 61 Cal.4th at pp. 1055-1056.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio, supra, at p. 357.) However, "speculation, supposition and suspicion are patently insufficient to support an inference of fact." (People v. Franklin (2016) 248 Cal.App.4th 938, 951; accord, People v. Marshall (1997) 15 Cal.4th 1, 35; People v. Xiong (2013) 215 Cal.App.4th 1259, 1268.)
C. Analysis
Despite defendant's arguments to the contrary, defendant's conviction on count 1 is supported by substantial evidence. There was ample evidence from witnesses who overheard some of the interactions between defendant and K.A. and who were able to speak with K.A. immediately following the incident and observe her injuries and condition. For example, Asia and Cecelia testified they heard fighting through their shared apartment wall with K.A. When K.A. sought help from the neighbors immediately following the incident, she was very frightened to the extent Rain testified they locked the door and shut off the lights to calm her down. K.A. was also very frightened for her mother, who was still in her apartment. During the 911 call, K.A. identified her assailant as a man named Doug, and she told Rain the person who she was frightened of was "going to kill [her]." K.A. had a bloody nose, and Rain gave her frozen strawberries to apply to the swelling on her face. Officer Pack noted K.A.'s left eye was black, she had red marks on her right eye, and some redness on her chin. K.A. identified a photograph of defendant as the person who had assaulted her. She appeared to Pack to be fearful, and she was worried defendant had harmed her mother, who was still in the apartment.
When K.A. made the call to defendant on Cecelia's cell phone, she accused defendant of hitting her and he adopted the admission by not refuting her statement and saying words to the effect that she should not have gone through his things, and he was sorry. K.A.'s reaction to the incident, her fear of defendant, her frightened behavior in fleeing her apartment and seeking help from the neighbors, her worry for her mother (who remained in the apartment), K.A.'s identification of defendant as her assailant, and K.A.'s visible injuries all constituted substantial evidence from which it can be reasonably inferred defendant struck her intentionally and willfully. While there was some doubt about how defendant had struck her—the court did not believe her injuries were consistent with being struck by a dowel or a bat—that he intentionally struck her and caused her traumatic injury was supported by the evidence.
Defendant argues this case is similar to People v. Morris (1995) 46 Cal.3d 1 (Morris), where the court concluded there was no substantial evidence from which any reasonable inference could support convictions for robbery and a robbery-murder special circumstance. (Id. at pp. 21-22, overruled on other grounds by In re Sassounian (1995) 9 Cal.4th 535, 543, 545, fns. 5, 6.) In Morris, police discovered a man had been shot several times in a bathhouse, but the sole witness testified only that he had heard five shots and saw a Black man standing in the doorway of the bathhouse and then running to a car, but he did not see the man's face. (Morris, supra, at p. 10.) Three days after the murder, a credit card the victim had borrowed from a friend was presented at a store. (Id. at p. 11.) The store clerk identified the defendant as the man who presented the credit card. (Ibid.) The defendant was charged with, and ultimately convicted of, robbery and first degree murder accompanied by the special circumstance that it was committed during the commission or attempted commission of a robbery. (Id. at pp. 13, 19.) To prove the robbery-murder special circumstance, there had to be substantial evidence of the robbery and that the murder was committing during the commission or attempted commission of the robbery. (Id. at p. 19.)
In concluding there was no substantial evidence of either the robbery or the robbery-murder special circumstance, the court noted that other than the witness who heard gunshots and saw someone running to a car, there were no witnesses to any of the events surrounding the shooting, no motive for the murder was disclosed, and only a credit card that belonged to a friend of the victim was presented by the defendant at a store three days after the murder. (Morris, supra, 46 Cal.3d at p. 20.) There was no evidence from which a jury could reasonably infer the defendant had deprived the victim of personal property in his possession by means of force or fear, as required for robbery. (Ibid.) For example, if prior to the shooting, the assailant removed the credit card from the victim's clothes, it constituted theft but not a robbery. (Ibid.) If prior to the shooting, the victim volunteered the credit card to his assailant as a form of consideration for sexual services, then no robbery was committed. (Ibid.) The court concluded that it could "speculate about any number of scenarios that may have occurred on the morning in question," but a "reasonable inference" may not be based on suspicion alone, speculation, supposition, conjecture, or guess work. (Id. at p. 21, italics omitted.) Rather, an inference must be drawn from evidence rather than a speculation as to probabilities without any evidence. (Ibid.)
We agree with the People that this case is distinguishable from Morris. In Morris, there was absolutely no evidence about how or when a robbery occurred to support a reasonable inference the taking was accomplished by means of force or fear or that the murder was committed during the commission of the robbery. (Morris, supra, 46 Cal.3d at pp. 20-22.) Here, the victim herself made statements and exhibited injuries and behavior from which reasonable inferences arose that defendant willfully caused her traumatic injury. K.A. was frightened when she sought help from the neighbors, and she appeared frightened when interviewed by the officers; she was worried about her mother, who was still in the apartment; she identified defendant as her assailant to officers and in the 911 call; and K.A. had observable injuries on her face. Had defendant's conduct been unintentional or defensive in nature, it is unlikely K.A. would have exhibited such fear and agitation. Defendant also made adoptive admissions over the phone that indicated he intentionally and willfully injured K.A. Considering the entire record, there was substantial evidence to support defendant's conviction on count 1 under section 273.5, subdivision (a). (People v. Zamudio, supra, 43 Cal.4th at p. 357 ["A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." ].)
As there is substantial evidence to support the conviction on count 1, we do not address defendant's argument that, upon reversal of this conviction, resentencing on the remaining counts is required.
III. Section 654 Does Not Apply to Counts 4 and 5
Defendant made four calls to K.A. while he was detained in jail awaiting trial. During that time, he encouraged her to recant her testimony, avoid subpoenas served by the prosecution, and not to testify at his trial. Based on these calls, defendant was convicted of three counts of dissuading a witness/victim under section 136.1, subdivision (b)(2), and the court imposed consecutive sentences for each of the three counts.
A. The Parties' Arguments
Defendant argues the evidence shows that each of the three convictions for dissuading a witness under section 136.1 were part of the same continuous course of conduct, "made for the singular purpose of dissuading the victim from testifying at trial, and the sentences for two of the convictions should be stayed pursuant to section 654."
The People maintain that, while defendant's attempts in separate phone calls to dissuade K.A. from testifying and/or assisting in the prosecution against defendant shared a common objective, each call was divisible in time and, thus, each phone call attempting to dissuade K.A. under section 136.1 could be punished separately.
Defendant responds that whether the calls were separated by time does not vitiate the single intent and objective underlying the calls and, thus, the calls represented an indivisible transaction not separately punishable pursuant to section 654.
B. Applicable Law
1. Multiple Punishments and Section 654
Section 654, subdivision (a), precludes multiple punishments for a single act: "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision ...." The statute's "reference to an 'act or omission' may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective." (People v. Corpening (2016) 2 Cal.5th 307, 311 (Corpening).) Thus, to determine whether a defendant may be subject to multiple punishment under section 654 requires a two-step analysis: first, whether the different crimes were completed by a single physical act; and, if not, whether that course of conduct reflects a single intent or objective or multiple intents and objectives. (Corpening, supra, at p. 311.)
Where a trial court sentences a defendant to separate terms without making an express finding the defendant entertained separate objectives, the trial court is deemed to have made an implied finding each offense had a separate objective or was divisible in time. (People v. Osband (1996) 13 Cal.4th 622, 730-731.) Further, because a sentence imposed in contravention of section 654 is unauthorized, the error may be raised on appeal in the absence of an objection. (People v. Kelly (2018) 28 Cal.App.5th 886, 903, citing People v. Brents (2012) 53 Cal.4th 599, 618.)
2. Standard of Review
When the pertinent facts are in dispute, the applicability of section 654 is a question of fact for the trial court, which is vested with broad latitude in making its determination. (People v. Wynn (2010) 184 Cal.App.4th 1210, 1214-1215.) The court's findings on this question must be upheld on appeal if there is any substantial evidence to support them. (People v. Coleman (1989) 48 Cal.3d 112, 162.) Under this deferential standard, courts are required to view the evidence in a light most favorable to the respondent and presume in support of the sentencing order the existence of every fact the trier could reasonably deduce from the evidence. (People v. Tarris (2009) 180 Cal.App.4th 612, 626-627.)
C. Analysis
The trial court made no express findings whether the convictions under section 136.1 were separate acts divisible in time, thus the court is deemed to have implicitly concluded the crimes were supported by a separate objective or divisible in time. (People v. Osband, supra, 13 Cal.4th at pp. 730-731.) Defendant's violations of section 136.1 as to counts 4, 5 and 6 were not "completed by a 'single physical act.'" (Corpening, supra, 2 Cal.5th at p. 311.) These crimes involved a course of conduct over a number of days, and the question presented is whether that conduct reflects a single intent and objective or was divisible by time. Defendant argues that because the calls were all related to dissuading K.A. from participating or assisting with the prosecution of his case, the conduct reflected a single intent and objective. We disagree.
Even if a course of conduct is "directed to one objective," it may "give rise to multiple violations and punishment" if it is "divisible in time." (People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11.) Where the defendant's acts are "temporally separated[, they] ... afford the defendant opportunity to reflect and to renew his or her intent before committing the next [offense], thereby aggravating the violation of public security or policy already undertaken." (People v. Gaio (2000) 81 Cal.App.4th 919, 935.) "Thus, a finding that multiple offenses were aimed at one intent and objective does not necessarily mean that they constituted 'one indivisible course of conduct' for purposes of section 654. If the offenses were committed on different occasions, they may be punished separately." (People v. Kwok (1998) 63 Cal.App.4th 1236, 1253.)
For example, in People v. Howell (1966) 245 Cal.App.2d 787 (Howell), to which the court cited favorably in People v. Beamon, supra, 8 Cal.3d at page 639, footnote 11, a drunk driver who committed several crimes while driving his car between cities was found subject to multiple punishments. The defendant had first been involved in a hit and run accident in Monrovia. (Howell, supra, at p. 788.) Then, sometime later in the evening, he was involved in a second automobile accident in a different city—Duarte. (Ibid.) In fleeing the second accident in Duarte, he was chased to a third city, Azusa, where he was arrested for drunk driving and disorderly conduct. (Ibid.) The defendant was charged with misdemeanors relating to the hit and run accidents in Monrovia and Duarte, and he was charged in another case for drunk driving in Azusa. (Id. at pp. 788-789.) The defendant sought to dismiss the drunk driving charge as barred under section 654 because it was part of the same continuous course of conduct underlying the hit and run charge. (Howell, supra, at p. 789.) The appellate court concluded the separate offenses for which defendant was charged while driving through the three cities were separate in time, place, and character despite that they were committed during the continuous act of driving while intoxicated. (Id. at pp. 789-792.) The court noted that just because a car trip is continuous does not mean the driver's acts along the way constitute an indivisible course of conduct. (Id. at p. 792.) The drunk driving charge was based on subsequent conduct that occurred after the second collision and before the defendant's ultimate apprehension. (Ibid.)
While each of defendant's three calls to K.A. and their discussions all related to dissuading K.A. from participating in the prosecution of his case, each call was aimed at preluding K.A.'s participation in different ways and related to different court proceedings or actions he wanted K.A. to take. During the March 10 call related to count 3, defendant and K.A. discussed the preliminary hearing, which at that time was set for April 4. Defendant mentioned that his public defender had told him not to talk to anyone, including the police, and defendant mentioned to K.A. that the next court date was set for April 4. K.A. indicated she would have to show up because she had been subpoenaed, to which defendant asked, "why don't you dodge the next subpoena? Just don't answer the door whatever and just you know what I mean?" K.A. responded that she thought she needed to attend and "stick up for [her] baby."
The next day, defendant again called K.A. and they discussed that K.A. did not have to come to court on March 14, that the next hearing date would not be until April 4, and defendant told K.A. she could check with his public defender to confirm that date. Then K.A. noted that if she were subpoenaed again, she was not going to accept it: "I, If they come uh if they come trying to subpoena me again[,] they ain't getting in the door." Defendant responded, "No don't. Don't even answer the door. Just act like you're not even there babe. [¶] ... [¶] Don't answer the door. Don't even accept a subpoena. You know what I mean?" However, during this call they also discussed that K.A. should recant her story. In this regard, defendant said, "I mean, I mean, I didn't do it. You're gonna tell them I didn't do it, so I mean what's the big deal?" K.A. responded, "Can't they just go ahead and press charges if they [feel] like it?" Defendant answered, "Yeah, they, they already tried to do that. That's what they were trying to do but you're gonna get on the stand and tell them I didn't do it[,] so[,] you know what I mean?"
On March 16, defendant and K.A. had an extended phone conversation about how K.A. would recant her testimony at the preliminary hearing and how she would become unavailable for trial if defendant was held over for trial. Defendant explained he had talked to another inmate who had already "beat" "two domestics." Defendant explained this inmate had advised him that K.A. should recant her story at the preliminary hearing and, if the case were not thrown out immediately, then K.A. should "ghost" at the trial and not show up. Defendant indicated he would have someone take K.A. to another location during the trial so no one could find her for purposes of serving a trial subpoena or a body attachment. Defendant said they could not have the district attorney's office try to "come get [her]" for trial, and that he needed K.A. "to be gone." Defendant told K.A. to go stay at her daughter's house, and if the court postponed the trial in an attempt to locate K.A., defendant told her not to answer her phone and "to stay gone." K.A. said she was already subpoenaed, and she had to be there, and defendant explained she was subpoenaed for the preliminary hearing, and he wanted her to come there to recant her story. He further explained that he wanted her to dodge the next subpoena for trial.
Each of the calls exemplify a separate objective. In the March 10 call, defendant encouraged K.A. to dodge any other subpoena she might be served related to the preliminary hearing or any other hearing. On March 11, they discussed K.A. avoiding any subpoena after the preliminary hearing, and they discussed that K.A. needed to recant her story whenever she was placed on the stand. In the final call on March 16, defendant urged K.A. to accept a plan whereby she would definitively appear at the preliminary hearing and recant her story; if that did not accomplish dismissal of the charges, defendant told K.A. she should avoid being subpoenaed specifically for trial, that she would need to relocate to avoid service of a trial subpoena, and that even during trial she would need to go to her daughter's house or move out of town or he would send someone to take her to another location. Thus, each call was aimed at something separate—first to simply avoid service of any further subpoena, in the second call for K.A. to recant her story, and then in the third call for K.A. to recant at the preliminary hearing and then they discussed and organized how she would avoid service of a trial subpoena. While the calls were aimed at dissuading K.A. from assisting with the prosecution of the charges generally, the calls related to different conduct by K.A. at different points in the proceedings. Like the hit and run charges and the subsequent drunk driving charge in Howell, supra, 245 Cal.App.3d at page 792, which were all connected by the same drunk driving trip the defendant had taken in his car, each offense had a separate character such that they were divisible; the types of conduct defendant encouraged or discouraged K.A. from engaging in were different in character in each phone call.
This case is also analogous to In re William S. (1989) 208 Cal.App.3d 313 (William S.). In William S., the defendant entered a home, absconded with several items of property, and exited through the front door, which he left unlocked. (Id. at p. 315.) He returned hours later, entered through the door he had left unlocked, stole additional items, and then departed. (Ibid.) The defendant argued he had committed only one burglary, but that even if he had committed two, he could be sentenced only once because leaving the door unlocked during his first entry to the home was meant to facilitate the second entry—thus, he had only a single criminal intent. (Id. at p. 316.) The court rejected the defendant's argument and distinguished his multiple entries from a hypothetical case involving multiple entries into a house within a short period of time to load a vehicle with different items of stolen property. (Id. at p. 317.) The hypothetical scenario could be properly viewed as one continuous course of conduct and one crime, but the defendant's acts involved two entries into the home made several hours apart, with ample opportunity to reflect after the first entry before returning the second time, which constituted two separate burglaries that could be sentenced separately. (Ibid.) Moreover, the crimes were committed by two distinct and different entries, separated by time and place, and with the intent to steal entirely different property—even if the ultimate goal of burgling the home was the same. (Id. at p. 318.)
Here, similar to William S., each of the phone calls was separated in time by at least a day. During the interim, defendant had ample time to reconsider his attempt to dissuade K.A. from participating in the prosecution of his case. Further, as noted above, each phone call focused on different steps defendant wanted K.A. to take with respect to his case (i.e., avoiding any subsequent subpoena in the case, K.A. recanting her story, K.A. appearing at the preliminary hearing specifically to recant, and then K.A. avoiding a trial subpoena and hiding out of town to do so if her preliminary hearing appearance and recantation were unsuccessful). Defendant's conduct in that regard is similar to the burglar in William S., who stole different property from the same house on different occasions—while burgling the house was the basic objective, each entry was performed to remove different items and there was sufficient time between entries for the burglar to reflect on the conduct and change course. While he may have had one goal, in each call, made at least a day or more apart, defendant urged K.A. to take different courses of action in each call, rendering the crimes divisible in character and in time.
In sum, the underlying conduct for which defendant was convicted as to counts 4, 5 and 6 was divisible in time, intent and character; as such, multiple punishments for this course of conduct are not precluded under section 654.
IV. Sentencing Under Section 1170.15 as to Counts 4 and 5
As to counts 4 and 5, the trial court sentenced defendant as follows: "Counts 4 and 5, the Court exercises discretion striking two of his three strikes, and gives him determinate sentences on each. Each then, is a total of four years. That's per the mandate of [section] 1170.1 that this crime is to be sentenced consecutive for its full term."
Defendant argues section 1170.1 provides for consecutive terms of one-third the middle term, and the trial court was likely referencing section 1170.15, which gives the court discretion to impose a full middle term sentence for witness dissuasion convictions under section 136.1. Defendant maintains the trial court did not understand its sentencing discretion under section 1170.15, believing that the imposition of consecutive, full middle terms was mandatory; as such, defendant argues the case should be remanded to the trial court for resentencing as to these counts. Respondent concedes defendant is correct, and we agree.
Section 1170.15 provides that "[n]otwithstanding subdivision (a) of Section 1170.1 which provides for the imposition of a subordinate term for a consecutive offense of one-third of the middle term of imprisonment, if a person is convicted of a felony, and of an additional felony that is a violation of Section 136.1 or 137 and that was committed against the victim of, or a witness or potential witness ..., the subordinate term for each consecutive offense that is a felony described in this section shall consist of the full middle term of imprisonment for the felony for which a consecutive term of imprisonment is imposed, ...."
In People v. Woodworth (2016) 245 Cal.App.4th 1473 (Woodworth), a different panel of this court confronted a similar situation. In that case, the defendant was convicted of a sex crime (count 1) and for dissuading a witness under section 136.1 (count 3). (Woodworth, supra, at p. 1476.) The court sentenced the defendant to a term of 25 years to life on count 1 and imposed a consecutive three-year term for count 3. (Id. at p. 1478.) The trial court explained in sentencing that its understanding of section 1170.15 required imposition of a full consecutive sentence on count 3. (Woodworth, supra, at p. 1478.)
On appeal, the defendant argued the court failed to recognize it had discretion under section 1170.15 to impose concurrent, rather than full consecutive, sentences. (Woodworth, supra, 245 Cal.App.4th at p. 1478.) Specifically, the defendant argued "the phrase 'the subordinate term for each consecutive offense' implies the trial court retains discretion to determine if it will impose a concurrent or consecutive sentence." (Id. at p. 1479.) According to the defendant, section 1170.15 required imposition of a full middle term only if the trial court first concludes it will impose consecutive sentences on both felonies. (Woodworth, supra, at p. 1479.)
The Court of Appeal agreed, finding that the plain language of section 1170.15 does not mandate consecutive sentences, and "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 a trial court chooses consecutive sentencing it must impose a full-term sentence for the witness dissuasion count." (Woodworth, supra, 245 Cal.App.4th at p. 1479.) The court observed that "'[a]bsent an express statutory provision to the contrary, section 669 provides that a trial court shall impose either concurrent or consecutive terms for multiple convictions.' (People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262)," and noted section 1170.15 does not contain an express provision depriving the trial court of the discretion afforded to it in section 669 (Woodworth, supra, at pp. 1479-1480). As the record reflected the trial court had proceeded with sentencing on the erroneous assumption it lacked discretion in this regard, remand was necessary for the court to have an opportunity to exercise its discretion at a new sentencing hearing. (Id. at p. 1480.)
Here, the court stated that "per the mandate of [section] 1170.1[,] this crime is to be sentenced consecutive for its full term." The People concede the record indicates the trial court was unaware of its discretion to impose concurrent sentences. This was error. "'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.'" (Woodworth, supra, 245 Cal.App.4th at p. 1480.)
Remand is required for the trial court to have an opportunity to exercise its discretion whether to impose concurrent or consecutive sentences for counts 4 and 5. We take no position as to how the trial court should exercise its discretion in that regard.
V. Senate Bill No. 1393
On September 30, 2018, the Governor signed Senate Bill No. 1393, which, effective January 1, 2019, amended sections 667 and 1385 to give trial courts the discretion to dismiss five-year sentence enhancements under section 667, subdivision (a). (See Legis. Counsel's Dig. of Sen. Bill No. 1393 ["This bill would delete the restriction prohibiting a judge from striking a prior serious felony conviction in connection with imposition of [a] 5-year enhancement ...."].) Defendant argues, and the People concede, Senate Bill No. 1393 applies because defendant's case is not yet final. (People v. Garcia (2018) 28 Cal.App.5th 961, 973 [Sen. Bill No. 1393 applies to all cases not yet final when Sen. Bill No. 1393 becomes effective on Jan. 1, 2019, pursuant to In re Estrada (1965) 63 Cal.2d 740, 744-745 (Estrada)].)
The record does not affirmatively suggest the trial court would not exercise its discretion to strike defendant's prior serious felony enhancement. Accordingly, because defendant was convicted and sentenced for a prior serious felony enhancement under section 667, subdivision (a), and his conviction is not yet final, remand is required to allow the trial court an opportunity to exercise its discretion whether to strike the enhancement. (People v. Garcia, supra, 28 Cal.App.5th at pp. 971-972 [applying Sen. Bill No. 1393 retroactively under the Estrada rule as to nonfinal judgment].)
DISPOSITION
The matter is remanded to allow the trial court to consider whether to exercise its discretion to strike the prior serious felony enhancement pursuant to Senate Bill No. 1393 (see §§ 667, 1385, subd. (b)(1)), and to allow the trial court to consider whether consecutive or concurrent sentences should be imposed as to counts 4 and 5 under sections 1170.15 or 1170.1. If necessary, after the exercise of its discretion in both of these regards, the trial court shall resentence defendant as appropriate. In all other respects, the judgment is affirmed.
MEEHAN, J. WE CONCUR: LEVY, Acting P.J. FRANSON, J.