Opinion
E064116
01-23-2018
THE PEOPLE, Plaintiff and Respondent, v. TONY ERNEST WILSON, Defendant and Appellant.
Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, A. Natasha Cortina and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENIAL OF PETITION FOR REHEARING [NO CHANGE IN JUDGMENT]
The petition for rehearing filed by defendant and appellant on February 5, 2018, is denied. The opinion filed in this matter on January 23, 2018, is modified as follows:
1. The first paragraph on page 19 is modified as follows, adding footnote No. 5:
"In sum, if we affirm or reverse in relation to the kidnapping sentence, we would need to make a conclusion concerning the duration of the torture. That conclusion would, in turn, limit the trial court's ability to make findings resolving the contradictions related to the assault sentences. Accordingly, we will reverse the sentences for defendant's kidnapping and assault convictions, as well as the associated enhancements, so the trial court may resentence defendant based upon its own consistent findings."
The two stayed GBI enhancements (§ 12022.7, subd. (a)) associated with the assault convictions will also be reversed because the enhancements exist only as an addition to base terms, and the base terms in this case must be reversed. (See People v. Dennis (1998) 17 Cal.4th 468, 500 [an enhancement is not a separate offense, it is an additional term added to the base term].) Because the enhancements are part of the overall sentence, the invalidity of part of the sentence infects the enhancements as well. (People v. Hill (1986) 185 Cal.App.3d 831, 834 ["an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme"]; see also People v. Navarro (2007) 40 Cal.4th 668, 681 [permitting the trial court to resentence on all counts due to changes in some of the counts
Except for this modification, the opinion remains unchanged. This modification does not effect a change in the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. SLOUGH
J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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. FVI1401938) OPINION APPEAL from the Superior Court of San Bernardino County. Debra Harris, Judge. Reversed in part; affirmed in part with directions. Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, A. Natasha Cortina and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Tony Ernest Wilson, guilty of (1) kidnapping (Pen. Code, § 207, subd. (a)); (2) assault with a firearm (§ 245, subd. (a)(2)); (3) assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)); and (4) torture (§ 206). In regard to the kidnapping, assault with a firearm, and assault by means of force likely to produce great bodily injury, the jury found true the allegation that defendant personally inflicted great bodily injury (GBI). (§ 12022.7, subd. (a).) Also, as to the kidnapping, the jury found true the allegation that defendant personally used a firearm. (§ 12022.53, subd. (b).) In regard to the assault with a firearm, the jury found true the allegation that defendant personally used a firearm. (§ 12022.5, subds. (a) & (d).)
All further statutory references will be to the Penal Code unless otherwise indicated.
The trial court found defendant suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), a prior serious felony conviction (§ 667, subd. (a)(1)), and two prior convictions for which he served prison terms (§ 667.5, subd. (b)). The trial court sentenced defendant to prison for a determinate term of 35 years, and a consecutive indeterminate term of life with the possibility of parole after seven years, to be followed by lifetime parole.
Defendant raises four issues on appeal. First, defendant contends the trial court erred by not staying the sentences for the kidnapping conviction and associated enhancements because the kidnapping was incidental to the torture. (§ 654.) Second, defendant contends the trial court erred by not staying the sentences for the assault convictions because the assaults were the same acts that comprised the torture (§ 654). Third, defendant contends the trial court erred by sentencing defendant for two prison priors (§ 667.5, subd. (b)), rather than one, because one of the two prison priors was stricken. Fourth, defendant asserts the case should be remanded to the trial court so the trial court may exercise its discretion concerning whether to strike the firearm enhancement associated with defendant's kidnapping conviction (§ 12022.53, subd. (b)). (§ 12022.53, subd. (h).)
Defendant raised this contention in his supplemental appellant's opening brief. In defendant's original appellant's opening brief, he asserted the trial court erred by imposing a consecutive prison term for the GBI enhancement (§ 12022.7, subd. (a)) associated with the kidnapping conviction (§ 207, subd. (a)) because the GBI enhancement involved the same acts as the torture conviction. (§ 654.) We conclude the original contention has been subsumed by this supplemental contention. Therefore, we will not separately address the sentence for the kidnapping GBI enhancement.
The People concede defendant's fourth contention is correct. The People did not file a notice of appeal; however, the People raise two issues on appeal. First, the People contend the trial court erred by not doubling the minimum term of the indeterminate sentence. Second, the People assert the trial court erred by not sentencing defendant for the prior serious felony conviction (§ 667, subd. (a)(1)). We reverse in part and affirm in part with directions.
FACTUAL AND PROCEDURAL HISTORY
A. FACTS
The victim's girlfriend lived in Apple Valley. On May 11, 2014, the victim argued with his girlfriend, and she told him to leave her house. The victim boarded a bus to Victorville to visit his father. The victim exited the bus, and walked toward his Father's house. A car stopped next to the victim. The front and rear passenger side doors opened. Defendant and another man exited the car.
The victim knew defendant because, in the past, the two had "gotten high" together and physically fought one another. Defendant was holding a revolver in his hand. Defendant said to the victim, " 'So you were looking for me in a black Lexus, huh?' " The victim responded, " 'What are you talking about?' " Defendant said "some girl told him that [the victim] was in a black Lexus with [five other people], and [they] all had guns and [they] were looking for [defendant] by name." Defendant pointed the gun at the victim. The victim said he had not been looking for defendant.
Defendant waved the gun and told the victim, " 'Get in the car.' " The victim entered the backseat of the car. The victim was seated behind defendant, who was in the passenger seat. Defendant turned around and struck the side of the victim's head with the butt of the gun. Two other men were also in the car with defendant and the victim. The group travelled to a house. Upon arriving at the house, the driver told the victim, " 'Get the fuck out of the car.' " The victim was pushed out of the car. Defendant pointed a gun at the victim and guided him into the house.
The victim was pushed into a room, and then pushed onto the floor. Multiple people kicked and punched the victim. The victim was also struck with a gun. The people striking the victim repeatedly asked him, " 'Who were the other guys that were with you?' " Defendant kicked the victim and pointed a gun at him. After approximately five minutes, the beating stopped. The victim explained he had not been looking for defendant and did not know anyone who owned a black Lexus.
Someone rang the doorbell at the house. Defendant, holding the gun, told the victim, " 'Go to the back room, or I'll shoot your ass right now.' " The victim moved to a back bedroom. The man who had come to the front door (John Doe 1 [JD1]) entered the back bedroom holding a large knife. JD1 heated the tip of the knife with a cigarette lighter. JD1 held the heated knife tip to the victim's face, burning the victim's face, while defendant pointed a gun at the victim. JD1 accused the victim of stealing JD1's gun on a prior occasion.
After the victim was burned, someone took the gun away from defendant. Defendant picked up a flathead screwdriver that was approximately 18-inches long. Defendant attempted to stab the victim's stomach, but the victim moved. Defendant attempted to stab the victim's chest, but the victim used his hand to protect his chest. Defendant stabbed the victim's forearm with the screwdriver. The screwdriver almost, but, did not, exit through the other side of the victim's forearm. Defendant pulled the screwdriver out of the victim's arm.
The victim began to faint. The attackers talked to one another about not letting the victim fall asleep because the victim likely suffered a concussion. The attackers gave the victim methamphetamine to stay awake, and the victim smoked it. The victim was instructed to go into the backyard and pick up dog feces. The victim spent approximately 90 minutes outside cleaning the backyard.
When the victim finished cleaning the yard, defendant instructed the victim to return to the back bedroom. Defendant and another man smoked methamphetamine in the back bedroom. Throughout the night, defendant occasionally punched the victim and kicked the victim's face. Defendant continued pointing a gun at the victim. Defendant blindfolded the victim's eyes by wrapping a sock around the victim's head.
The attackers, including defendant, discussed giving the victim the opportunity to confront the woman who accused the victim of searching for defendant. The following morning, one of the men and defendant decided to find the woman who accused the victim. At approximately 8:00 or 9:00 a.m., defendant, the victim, and one of the attackers (the driver) left the house in order to confront the woman who accused the victim. On the way, the driver asked the victim for $200. The driver drove to Radio Shack. The victim stole a $200 speaker and gave it to the driver. The driver went to a Dollar General store where the victim stole a $25 bedsheet.
The group travelled to a second house where the driver would try to sell the stolen speaker. While at the second house, defendant, the victim, and a man from inside the second house (John Doe 2 [JD2]) smoked marijuana. The driver went to a store with the gun defendant had been using. JD2 accused the victim of stealing JD2's pipe on a prior occasion. Defendant and JD2 instructed the victim to follow them across the street to a third house. The three entered the garage of the third house. Defendant and JD2 beat the victim. Defendant struck the victim's sides with a 4x4 piece of lumber with nails sticking out of it.
The victim ran out of the garage. Defendant tripped the victim. The victim fell in the street. Defendant and JD2 jumped on top of the victim. The three fought. The victim stood up and ran. The victim flagged down a motorist who drove the victim toward a hospital. On the way, the victim saw his girlfriend. The victim exited the vehicle he had flagged down and entered his girlfriend's car. The victim's girlfriend drove him to a hospital.
The victim suffered bruising around his forehead and eye; two small, puncture-type injuries on his face; a third puncture-type injury on his face; a possible burn injury on his face; a screwdriver-type stab wound on his arm, as well as bruising on his arm, bruising on his abdomen; a "puncture mark" and abrasion on his abdomen; and bruising on his scalp, along the side of his head.
B. PROSECUTOR'S CLOSING ARGUMENT
During closing argument, the prosecutor said to the jury, in regard to great bodily injury, "And you can choose, you have to all choose for yourselves, which acts you want to qualify as the different counts. But these clearly show more than minor injury . . . . This is great bodily injury. And you can use the combination of all these things together, you can say, well, maybe it's not that by itself or just that by itself. [¶] But you heard about lumps along the scalp, the blunt force trauma on the head. All of these things you can say, hey, that's great bodily injury, you know. It's too much."
In regard to torture, the prosecutor argued, "This is more than one day, multihour torture. Psychological, physical, you know, of someone else, of another human being. In your county, you know. The burning of the face, the screwdriver, the beatings, the accusations, all of these things are torture."
In regard to defendant's motive during the torture, the prosecutor asserted, "[T]he second requirement is that he did it for some type of sadistic purpose or for vengeance or some extortion. Persuasion is in it too. But, really, you can use extortion, they're trying to get the money at some point. The persuasion they're trying to get him to tell him about, hey, it's true that you did this, didn't you, you're the one that did this crime looking for us. You can use that. Or you can use the sadistic purpose. It was sadistic to beat him like that for so long."
As to the kidnapping, the prosecutor argued, "[Y]ou have the exact instructions for the kidnapping, you have that he was taken, [the victim], was taken by force or fear somewhere else at gunpoint, through a different part of the county. Obviously there's a few turns and drives. He's kidnapped. You have that."
In regard to assault with a firearm, the prosecutor said, "We have the assaults. Assaulted with a firearm. We know different times he said that [defendant] said he hit him with a pistol. We have that." In regard to assault likely to produce great bodily injury, the prosecutor said, "The assault with the by [sic] means likely to create great bodily injury, that could just be with your fists or it could be when you used the 4 x 4 to hit [the victim]. You have all the elements for that."
C. UNANIMITY INSTRUCTION
The trial court instructed the jury on unanimity. The instruction provided, "The defendant is charged with Kidnapping, Torture, Assault with a firearm, . . . and Assault by Means likely to Cause Great Bodily Injury in Counts 1, 2, . . . , 4, and 6 sometime during the period of May 11, 2014 to May 12, 2014. [¶] The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed." (CALCRIM No. 3500.)
D. SENTENCING
At defendant's sentencing hearing, his trial attorney asserted, "[A]n element of torture is great bodily injury. Therefore, I think that all great bodily injury enhancements with regards to counts 1 [kidnapping], 2 [assault with a firearm], and 4 [assault by means of force likely to produce great bodily injury], are 654 to Count 6 [torture] . . . . So what I would ask is that he not be sentenced to any of these enhancements of the great bodily injury as to counts 1, 2, and 4."
The prosecutor conceded the court should stay the sentences for the GBI enhancements associated with the two assault convictions. The prosecutor asserted the court should impose a consecutive sentence for the GBI enhancement associated with the kidnapping conviction. The prosecutor asserted the GBI associated with the kidnapping "was distinct from the torture." The prosecutor said, "I think the torture really just comprised of different assaults in Counts 2 and 4 and that lasted the duration of after the kidnapping was completed. There's evidence that the victim was pistol-whipped and beaten as he was kidnapped, so I think there would be a factual basis to [im]pose the GBI just as to Count 1 [kidnapping]."
Defense counsel asserted, "[T]he victim was walking down the street and he was kidnapped by the car pulling up and being told to get into the car. That's when the kidnapping started. [¶] The torture allegations began upon the kidnapping while he was taken to the first house and then allegedly tortured . . . . Then he was taken to the second house where he allegedly suffered more torture. [¶] So my argument is this: Is that there is not a different torture or—from the GBI of the kidnapping because both of those things were ongoing from when the victim got into the car until he escaped from the second house. So to say that the kidnapping had different [GBI] injuries than what he suffered as a result of the torture [GBI], there are not two separate things. They're one in the same. [¶] And therefore, I am saying that 654 applies and should only be applied to the torture because that is an element of that. And, so, therefore, all these enhancements of [GBI] are within the torture, which makes it 654."
The trial court said, "I don't see it was the same conduct or it wasn't a single objective." The trial court continued, "They went to some store and there was some theft or something, but where this particular victim testified that occurred while he was being kidnapped and driven around a certain section of the community, so I'm looking at a single objective when they got to the residence. And I believe the torture that he did—or the [GBI] he described occurred in different rooms of the house, that's my recollection of the facts of the case."
The trial court imposed (1) a 16-year prison term for the kidnapping conviction (§ 207, subd. (a)) (count 1); (2) a consecutive 10-year prison term for the firearm enhancement (§ 12022.53, subd. (b)) (count 1); (3) a consecutive three-year prison term for the GBI enhancement (§ 12022.7, subd. (a)) (count 1); (4) a consecutive two-year prison term for assault with a firearm (§ 245, subd. (a)(2)); (5) a consecutive two-year prison term for the assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)); and (6) consecutive one-year terms for each of the two prison priors (§ 667.5, subd. (b)). The trial court imposed a consecutive indeterminate term of life with a minimum parole eligibility of seven years for the torture conviction. The trial court stayed the sentences for the GBI enhancements associated with the two assault convictions. (§ 654.)
DISCUSSION
I. DEFENDANT'S APPEAL
A. SECTION 654
At the outset, we seek to clarify which acts comprise the various convictions, so as to discuss the section 654 issues with a clear understanding of the conduct and corresponding convictions.
1. Verdict
In People v. Siko (1988) 45 Cal.3d 820, the defendant committed two acts: rape and sodomy, but was convicted of rape, sodomy, and lewd conduct with a child. (Id. at p. 823.) The jury's verdict included a finding that the lewd conduct consisted of the rape and sodomy. (Id. at p. 826.) The Supreme Court remarked that nothing "in the prosecutor's closing argument or in the court's instructions" suggested the lewd conduct charge consisted of a third, separate, act. (Ibid.) The prosecution had to rely on the two specific sex acts for which the jury had convicted the defendant, and therefore section 654 precluded separate punishment for the lewd conduct conviction. (Id. at pp. 825-826.) "Siko is thus authority that where there is a basis for identifying the specific factual basis for a verdict, a trial court cannot find otherwise in applying section 654." (People v. McCoy (2012) 208 Cal.App.4th 1333, 1339.) We examine the record for the purpose of determining whether there is a specific factual basis for the torture verdict.
During closing argument, in regard to torture, the prosecutor argued, "This is more than one day, multihour torture. Psychological, physical, you know, of someone else, of another human being. In your county, you know. The burning of the face, the screwdriver, the beatings, the accusations, all of these things are torture." The prosecutor's statement that the torture lasted "more than one day" suggests the prosecutor wanted the jury to aggregate all of defendant's assaultive acts in finding defendant guilty of torture.
In regard to great bodily injury, which is an element of torture (§ 206), the prosecutor argued, "And you can choose, you have to all choose for yourselves, which acts you want to qualify as the different counts. But these clearly show more than minor injury . . . . This is great bodily injury. And you can use the combination of all these things together, you can say, well, maybe it's not that by itself or just that by itself. [¶] But you heard about lumps along the scalp, the blunt force trauma on the head. All of these things you can say, hey, that's great bodily injury, you know. It's too much. [¶] The, I think, most compelling argument for that is really the arm." In this portion of the argument, the prosecutor is telling the jury it can choose some of the injuries for the element of great bodily injury, or it can aggregate all the injuries. Thus, the prosecutor is presenting two different options to the jury: aggregate all of the injuries or some of the injuries for the great bodily injury element of torture.
The trial court instructed the jury on the law of unanimity in relation to the torture charge. The trial court told the jury the prosecutor had presented evidence of more than one act in his attempt to prove the torture charge. The court's instructions reflected the jury had to agree defendant committed at least one of the acts in order to find him guilty of the torture charge. (CALCRIM No. 3500.)
Based upon this record, we cannot conclude there is a means for identifying the specific factual basis for the torture verdict. (People v. Siko, supra, 45 Cal.3d at p. 823; People v. McCoy, supra, 208 Cal.App.4th at p. 1339.) We cannot determine if the jury aggregated all of the assaultive acts to find defendant guilty of torture or if it chose a few of the acts to comprise the torture conviction.
2. Sentencing
We now look at the record of the sentencing hearing to determine if the trial court made findings concerning the specific factual basis for the torture conviction. At the sentencing hearing, the prosecutor conceded the sentences for the GBI enhancements associated with the assault convictions should be stayed. The prosecutor said, "I think the torture [is] really just comprised of [the] different assaults in Counts 2 and 4 and that lasted the duration of after [sic] the kidnapping was completed." The trial court stayed the sentences for the GBI enhancements associated with the assaults (§ 654), but imposed consecutive sentences for the substantive assault convictions.
Legally, the kidnapping was not complete until the victim reached a place of safety, i.e., escaped the third house. (People v. Barnett (1998) 17 Cal.4th 1044, 1159.)
The trial court's sentencing decision is contradictory. The trial court stayed the GBI enhancements associated with the assault convictions, presumably because it found the assaults involved the same acts and objective as the torture (§ 654). However, the trial court imposed consecutive sentences for the substantive assault convictions, indicating it found section 654 did not apply because the assaultive acts were divisible from the torture or involved different objectives. Because the sentencing decisions are contradictory, we will look at the trial court's general findings to aid us in clarifying the record.
When the trial court gave its tentative ruling on the application of section 654, in discussing all of defendant's convictions, the court said, "I don't see it was the same conduct or it wasn't a single objective." The trial court continued, "They went to some store and there was some theft or something, but where this particular victim testified that occurred while he was being kidnapped and driven around a certain section of the community, so I'm looking at a single objective when they got to the residence. And I believe the torture that he did—or the [GBI] that he described occurred in different rooms of the house, that's my recollection of the facts of the case."
The trial court's recollection of the timeline of events was incorrect. The trial court believed the group kidnapped defendant, drove to the stores, and then went to the first house. As set forth ante, the group went to the first house, assaulted the victim, went to the stores, then went to the second and third houses, and assaulted the victim again. Thus, the trial court's division of the course of conduct is problematic because the trial court was discussing an incorrect timeline of events. Accordingly, we cannot rely on the trial court's general findings to clarify the record.
3. Analysis
It is unclear from the record whether the jury and trial court found (1) the torture is an aggregation of all the assaultive acts; or (2) the assaults and torture were separate acts. One of defendant's contentions on appeal is that the trial court erred by not applying section 654 to the assault sentences. If we affirm because we conclude substantial evidence supports a finding that the assaults are divisible from the torture, we will contradict the trial court's sentencing decision pertaining to staying the assault/GBI enhancements. If we reverse because we conclude substantial evidence supports a finding that the assaults underlie the torture, then we will contradict the trial court's sentencing decision pertaining to the kidnapping/GBI enhancement.
The trial court imposed a 16-year prison term for the kidnapping conviction and a consecutive three-year prison term for the GBI enhancement associated with the kidnapping conviction. The kidnapping was an ongoing crime; it lasted from the time of the abduction until the victim reached a place of safety, i.e., escaped from the third house. (People v. Barnett, supra, 17 Cal.4th at p. 1159.) The trial court found the kidnapping was divisible from the torture but based that finding on an incorrect timeline of events. Nevertheless, we could infer that the trial court corrected its understanding of the facts before ruling, then, the trial court's ruling would impliedly be based upon the correct facts. However, the record would still be unclear as to what act(s) form the basis for the GBI enhancement associated with the kidnapping. (See § 16600 [" 'great bodily injury' means a significant or substantial physical injury"].)
For example, when the victim entered the car, defendant struck the victim's head with the butt of a gun. The victim said he was hurt after the strike, but did not describe the injury, such as whether he was bleeding or had blurry vision. As a result, to find evidentiary support for the GBI enhancement associated with the kidnapping, we would need to aggregate some of the assaults. However, if we were to do that, then the kidnapping injuries would begin to merge with the assault injuries that also underlie the torture.
We now circle back to our point about a reversal on the assaults contradicting the kidnapping/GBI enhancement sentence. If we were to reverse because we conclude substantial evidence supports a finding that the assaults underlie the torture, then we will contradict the trial court's sentencing decision pertaining to the kidnapping/GBI enhancement because the assaultive conduct, for all the convictions and enhancements, will start to merge together thus contradicting the consecutive sentence for the kidnapping/GBI. For example, if the assaults underlie the torture, and some of the assaults need to be aggregated to support the kidnapping/GBI, it will be difficult to explain how the kidnapping/GBI is separate from the assaults-torture, but they must be separate to explain the consecutive sentence for the kidnapping/GBI enhancement, hence the contradiction.
In sum, there is no means of resolving the assault issues on appeal without leaving a contradiction in the sentence. If we affirm the consecutive assault sentences, then the trial court's section 654 stay of the assault/GBI enhancements is contradictory. If we reverse the consecutive assault sentences, then the trial court's consecutive GBI sentence for the kidnapping is problematic. Thus, we need to return the matter to the trial court because there is no method to resolve the issue that will not result in the creation of another issue.
A second issue raised by defendant is that the kidnapping sentence should have been stayed because the kidnapping was incidental to the torture. (§ 654.) This argument is premised on the theory that the torture was an ongoing crime that was not divided from the assaults. When the trial court found the kidnapping was divisible from the torture, it gave an incorrect recitation of the timeline of events. When the prosecutor argued the kidnapping was divisible from the torture, he provided an incorrect interpretation of the law. As a result, it is unclear what the trial court found concerning the kidnapping being divisible from the torture.
The prosecutor said, "I think the torture [is] really just comprised of [the] different assaults in counts 2 and 4 and that lasted the duration of after [sic] the kidnapping was completed." The prosecutor's statement was incorrect because the kidnapping was ongoing. The kidnapping ended when the victim reached a place of safety, i.e., escaped the third house. (People v. Barnett, supra, 17 Cal.4th at p. 1159.) --------
If we affirm the sentences for the kidnapping and the associated GBI enhancement, we would have to base that affirmance on defendant having separate simultaneous objectives during the overlapping conduct. As set forth ante, the kidnapping was ongoing. Therefore, the torture necessarily overlapped the kidnapping. If the torture was ongoing from the abduction to the escape because all the assaultive conduct comprises the torture, then it would be difficult to separate the two offenses because defendant was constantly torturing the victim during the kidnapping. However, if the torture were shorter in duration, for example occurring only in the back room of the first house, then it could reasonably be argued that defendant had a separate objective during that short period. (See People v. Dowdell (2014) 227 Cal.App.4th 1388, 1415-1416 [kidnapping objective of avoiding detection was incidental to theft objective]; see also People v. Nguyen (1988) 204 Cal.App.3d 181, 193 [where objective to conceal a crime occurs after the initial crime, then the two objectives are not incidental].)
In sum, if we affirm or reverse in relation to the kidnapping sentence, we would need to make a conclusion concerning the duration of the torture. That conclusion would, in turn, limit the trial court's ability to make findings resolving the contradictions related to the assault sentences. Accordingly, we will reverse the sentences for defendant's kidnapping and assault convictions, as well as the associated enhancements, so the trial court may resentence defendant based upon its own consistent findings.
B. PRISON PRIOR
1. Procedural History
In a first amended information, it was alleged defendant suffered (1) one prior strike conviction consisting of a 2008 robbery conviction (case No. FVI 702567) (§§ 667, subds. (b) (i), 1170.12, subds. (a)-(d)); (2) one prior serious felony conviction also consisting of the 2008 robbery conviction (case No. FVI 702567) (§ 667, subd. (a)(1)); and (3) two prior convictions for which he served prison terms, consisting of the 2008 robbery conviction (case No. FVI 702567) and a 2011 attempt to buy or receive stolen property (FVI 1102588) (§ 667.5, subd. (b)).
The trial court found defendant suffered the 2008 robbery conviction (case No. FVI 702567). The court found true the strike allegation, the serious felony allegation, and one of the prison prior allegations, in connection with the robbery conviction (FVI 702567). The following exchange then took place:
"[Prosecutor]: And, your Honor, I strike one of the prison priors, then. The Court found true [case No. ]FVI 1102588; is that correct? That's the one that's—it is Exhibit 12, you previously mentioned?
"The Court: Yes.
"[Prosecutor]: And at this time the People strike the prison prior alleged on the information [in case No. ]FVI 702567.
"The Court: All right. Now, we're gonna refer this matter to probation, come back for sentencing, what date would you like?"
Exhibit 12 is described on the Exhibit List as "Certified copy of dockets conviction date 12/29/11."
2. Analysis
Defendant contends the trial court erred by sentencing defendant for two prison priors (§ 667.5, subd. (b)), because the robbery prison prior was stricken.
A trial court must impose a one-year prison sentence for each prior conviction that resulted in a prison term. (§ 667.5, subd. (b).) The prison sentence is mandatory unless the enhancement is stricken. (People v. Langston (2004) 33 Cal.4th 1237, 1241.) The same prior conviction cannot be used as both a prior serious felony (§ 667, subd. (a)(1)) and a prison prior (§ 667.5, subd. (b)). (People v. Jones (1993) 5 Cal.4th 1142, 1152-1153; People v. Sipe (1995) 36 Cal.App.4th 468, 487.)
The record is ambiguous. The trial court's statement of "All right," can be understood as the trial court granting the prosecutor's motion to strike the enhancement, or as the trial court transitioning to scheduling a sentencing date. (§ 1385.) Despite the ambiguity in the record, the issue raised by defendant can be resolved.
In this case, the same 2008 robbery conviction was found to be a prior serious felony (§ 667, subd. (a)(1)) and a prison prior (§ 667.5, subd. (b)). The trial court must strike the prison prior (§ 667.5, subd. (b)) because there cannot be dual use of the 2008 robbery conviction. We will reverse the one-year prison sentence and direct the trial court to strike the enhancement. (§ 667.5, subd. (b).)
C. FIREARM ENHANCEMENT
Defendant requests this court remand the case to the trial court so the trial court can exercise its discretion regarding whether to strike the firearm enhancement associated with defendant's kidnapping conviction (§ 12022.53, subd. (b)). (§ 12022.53, subd. (h).) The People concede the case should be remanded.
Defendant was originally sentenced on July 16, 2015. At that time a 10-year consecutive prison term was mandatory for a violation of section 12022.53, subdivision (b). On January 1, 2018, section 12022.53, subdivision (h), became effective. (Sen. Bill. No. 620 (2017-2018 Reg. Sess.) § 2.) That subdivision provides, "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.53, subd. (h).)
Section 12022.53 applies "to any resentencing that may occur." We have concluded ante that defendant must be resentenced for the firearm enhancement associated with the kidnapping conviction (§ 12022.53, subd. (b)). Thus, at the resentencing, the trial court must exercise its discretion regarding whether to strike the firearm enhancement associated with the kidnapping conviction (§ 12022.53, subd. (b)). (§ 12022.53, subd. (h).)
II. UNAUTHORIZED SENTENCE
A. NOTICE OF APPEAL
The People did not file a notice of appeal. Nevertheless, the People assert portions of defendant's sentence are unauthorized. It is " 'well established that when the trial court pronounces a sentence which is unauthorized by the Penal Code that sentence must be vacated and a proper sentence imposed whenever the mistake is appropriately brought to the attention of the . . . reviewing court' [Citation.] Consequently, the People may challenge an 'unauthorized sentence' even on a defendant's appeal." (People v. Rowland (1988) 206 Cal.App.3d 119, 126.)
"The unauthorized sentence exception is 'a narrow exception' to the waiver doctrine that normally applies where the sentence 'could not lawfully be imposed under any circumstance in the particular case.' " (People v. Brach (2002) 95 Cal.App.4th 571, 578.) We address the issues raised by the People to determine if the trial court imposed an unlawful sentence.
B. DOUBLING THE MINIMUM TERM
The People contend the trial court erred by not doubling the minimum term of defendant's indeterminate sentence, which is associated with the torture conviction.
Under the "Three Strikes" law, "[i]f a defendant has one prior serious and/or violent felony conviction as defined in subdivision (d) that has been pled and proved, the . . . minimum term for an indeterminate term shall be twice the term otherwise provided." (§ 667, subd. (e)(1); People v. Jefferson (1999) 21 Cal.4th 86, 89-90.) "Torture is punishable by imprisonment in the state prison for a term of life." (§ 206.1.) The minimum parole eligibility for a life term is seven years when a statute does not otherwise specify a minimum term. (§ 3046, subd. (a)(1).)
For the torture conviction, the trial court sentenced defendant to prison for "life with [a] minimum parole eligibility of seven years." The prior strike conviction was not pled in relation to count 6/torture. In the first amended information, the People alleged, "It is further alleged pursuant to Penal Code sections 1170.12(a) through (d) and 667(b) through (i) as to count(s) 1, 2, 3, 4 that said defendant(s) Tony Ernest Wilson, has suffered the following prior conviction of a serious or violent felony or juvenile adjudication."
Because the strike prior was not pled in relation to count 6/torture, we cannot conclude that the trial court was legally required to double the minimum parole eligibility. As explained ante, an unauthorized sentence is a sentence that " 'could not lawfully be imposed under any circumstance in the particular case.' " (People v. Anderson (2010) 50 Cal.4th 19, 26.) In this case, the decision to not double the minimum parole eligibility could be lawful because section 667, subdivision (e)(1), includes a pleading requirement, and the People did not plead the prior strike in relation to count 6/torture. (See People v. Perez (2015) 240 Cal.App.4th 1218, 1227 [alternate sentencing scheme allegation is a count-specific allegation].) In other words, the People have not shown the trial court acted unlawfully by not doubling the minimum term for defendant's parole eligibility in count 6.
C. PRIOR SERIOUS FELONY
The People contend the trial court erred by striking the prior serious felony. (§ 667, subd. (a)(1).)
A trial court is not authorized "to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667." (§ 1385, subd. (b); People v. Garcia, supra, 167 Cal.App.4th at pp. 1560-1561.) At the sentencing hearing, the trial court struck the prior serious felony enhancement (§ 667, subd. (a)(1)). The trial court erred. The trial court found the prior serious felony allegation to be true and therefore must impose the five-year sentence (§ 667, subd. (a)(1)).
The People assert a five-year term should be added to defendant's determinate and indeterminate sentences. The People rely on People v. Misa (2006) 140 Cal.App.4th 837 to support their contention. In Misa, the appellate court held that a five-year prison term for a serious felony enhancement could be added to each indeterminate prison term imposed under the Three Strikes law. (Id. at p. 847.)
The Misa rule is inapplicable in this case because defendant's indeterminate sentence for torture is not a Three Strikes sentence. As explained ante, the prosecutor did not allege a prior strike in relation to count 6/torture, and therefore defendant's indeterminate sentence is the standard statutory sentence of life in prison with a minimum parole eligibility of seven years. (§§ 206.1, 3046, subd. (a)(1).) Because Misa concerns Three Strikes sentences, and the indeterminate term in this case is not a Three Strikes term, we cannot conclude the trial court was legally required to apply the five-year enhancement to both the determinate and indeterminate sentences.
DISPOSITION
The following sentences are reversed: (1) the 16-year prison term for the kidnapping conviction (§ 207, subd. (a)) (count 1); (2) the 10-year prison term for the firearm enhancement (§ 12022.53, subd. (b)) (count 1); (3) the three-year prison term for the GBI enhancement (§ 12022.7, subd. (a)) (count 1); (4) the two-year prison term for the assault with a firearm (§ 245, subd. (a)(2)) (count 2); (5) the two-year prison term for the assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)) (count 4); and (6) the stayed prison terms for the GBI enhancements (§ 12022.7, subd. (a)) associated with the assault convictions (counts 2 and 4). The trial court is directed to resentence defendant for the kidnapping and assault convictions and the associated enhancements. When resentencing defendant for the firearm enhancement associated with the kidnapping conviction (§ 12022.53, subd. (b)), the trial court shall exercise its discretion pursuant to section 12022.53, subdivision (h).
The one-year sentence for the prison prior (§ 667.5, subd. (b)) associated with prior case No. FIV1702567 is reversed. The trial court is directed to strike the prison prior enhancement (§ 667.5, subd. (b)) associated with prior case No. FIV1702567. The striking of the prior serious felony enhancement (§ 667, subd. (a)(1)) is reversed. The trial court is directed to impose the five-year sentence for the prior serious felony conviction. (§ 667, subd. (a)(1).) The trial court is directed to issue an amended abstract of judgment and send the amended abstract to the appropriate agency/agencies. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. SLOUGH
J.