Opinion
F073186
11-28-2017
THE PEOPLE, Plaintiff and Respondent, v. TONG YANG, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F13906549)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Poochigian, J. and Smith, J.
-ooOoo-
INTRODUCTION
Appellant Tong Yang was convicted of corporal injury to a spouse (Pen. Code, § 273.5, subd. (a); count 1), and dissuading a witness by force or threat (§ 136.1, subd. (c)(1); count 3). The probation report stated section 1170.15 "mandated" a consecutive term for count 3. At the December 29, 2015 sentencing hearing, the trial court said it had read and considered the probation report, then proceeded to impose a sentence that included a consecutive term for count 3. This court's decision in People v. Woodworth (2016) 245 Cal.App.4th 1473 (Woodworth), published March 29, 2016, held section 1170.15 does not mandate a consecutive term for section 136.1 convictions; a trial court retains discretion to impose a concurrent term.
References to code sections are to the Penal Code.
In this appeal, Yang contends: (1) the trial court was unaware it had discretion to impose a concurrent term for the count 3 offense; and (2) section 654 mandates a stay of the term imposed for the count 3 offense.
We conclude section 654 does not mandate a stay of the term imposed for the count 3 offense; however, we will vacate the sentence and remand the case for the trial court to exercise its discretion to impose a concurrent or consecutive term for the count 3 offense.
FACTUAL AND PROCEDURAL SUMMARY
There is no challenge to the sufficiency of the evidence to support the convictions; therefore, we provide a recitation of only those facts relevant to a resolution of the issues.
Yang was charged with corporal injury to a spouse, in violation of section 273.5, subdivision (a); criminal threats in violation of section 422; and dissuading a witness by force or threat in violation of section 136.1, subdivision (c)(1).
Testimony at trial established that at approximately 9:30 p.m. on July 10, 2013, V. heard her father, Yang, and her mother, M., arguing. V. and her younger sister, K., went to see "what was going on." V. saw that Yang was holding M. by both wrists, then he picked up the TV remote and started hitting M. with it. V. yelled at Yang to stop and grabbed him. Yang used a closed fist to punch M. in the cheek "a few times." M. bit Yang's arm "a few times" in an effort to get away.
M. testified that she and Yang were arguing over Yang's use of a credit card and a job for which he had applied. M. was seated when Yang took the TV remote and hit her with it. M. stood up and asked Yang why he had hit her; Yang responded by hitting her in the side of the face with his clenched fist, causing an injury to her ear. The injury to M.'s ear caused lingering hearing problems that eventually required surgical repair.
M. tried to get to the telephone to "call somebody for help." Yang pushed her down; she got up and "grabbed the phone." M. sat down and tried to dial 911 to call the police. Yang sat on top of her and bit her at least twice, making her drop the phone. M. thought if she did not drop the phone, Yang was going to keep biting her. When interviewed by police at the time of the incident, M. said she told Yang she was calling the police and that he began yelling at her that she was "not going to call the police."
Meanwhile, V. had taken the phone and locked herself in the master bathroom, where she called her aunt. Yang headed toward the master bathroom and M. followed. When V. refused to open the door, Yang dragged M. from the bedroom back to the living room. V. came out of the master bathroom; all six of Yang's and M.'s children, including V., were in the living room.
M. asked V. and K. why they had not called someone to come and help. M. picked up her cell phone and purse from a nearby table; Yang reached out and took the cell phone, telling her not to call anyone. M. tried to leave, but Yang stated neither M. nor the children were to leave and if they left, "he was going to kill" them. At this point, M.'s sisters-in-law, Kay and Julie, arrived. M. hurriedly went and called 911.
The 911 call was admitted into evidence and played for the jury. In the call, Yang can be heard telling M. to open the door. M. told Yang she was on the phone with the police and opened the door. Yang grabbed the phone from her, removed the battery, and dropped the phone.
Shortly thereafter, Officers Thong Her and Matt Balbach arrived at the residence. Balbach asked Yang if he had hit his wife; Yang admitted he had. Balbach handcuffed Yang and placed him in the back of the patrol vehicle. When interviewed, Yang claimed M. hit him. M. stated she was going to call the police and Yang told her not to call. Yang acknowledged that he might have grabbed the phone when M. was trying to call the police.
Yang testified in his own behalf. He stated M. told him he had wasted money; she was very upset. M. was determined to call police no matter what; Yang thought this was something that could be resolved by calling the Hmong elders. Yang denied preventing M. from calling anyone and denied threatening her. He did admit biting M. The jury convicted Yang of the section 273.5, subdivision (a) and section 136.1, subdivision (c)(1) offenses. He was found not guilty of the section 422 offense.
At the December 29, 2015 sentencing, the trial court noted it had received the probation report and indicated it intended to impose, but stay, a term of imprisonment and place Yang on probation. The probation report included the statement, "Pursuant to PC 1170.15, the term in Count Three is mandated to be imposed consecutively."
Defense counsel proceeded to address the probation report and argue mitigating factors, but did not address section 1170.15 or the trial court's statement that it mandated consecutive sentencing. The People responded, but also did not address section 1170.15. The People asked the trial court to impose 365 days in local custody, or 240 days in local custody with a waiver of time credits.
The trial court said it had "read and considered the probation report." The trial court commented that Yang had "been in California for a sufficient amount of time to know ... what is appropriate and inappropriate conduct under the laws of this state ...." The trial court then imposed the mitigated term for the section 273.5, subdivision (a) offense and a consecutive term for the section 136.1 offense, stating:
"As to the felony violation of Penal Code section 136.1(c)(1), that is dissuading a witness or a victim in this case, ... , the Court is imposing the middle term of three years. And pursuant to Penal Code section 1170.15, that is a full term middle term consecutive. For a total commitment in this case of five years."
The trial court then proceeded to stay the term of imprisonment and place Yang on probation, subject to numerous terms and conditions. When the trial court asked Yang if he accepted the terms of probation, Yang responded that he "can't decide." The trial court replied, "Would you like me to decide for you?" At this point, defense counsel conferred with his client. When asked again, Yang accepted the terms of probation.
Yang filed a timely notice of appeal.
DISCUSSION
Yang raises two issues in this appeal: (1) the trial court was unaware it had discretion to impose a concurrent term for the count 3 offense; and (2) section 654 mandates a stay of the term imposed for the count 3 offense.
I. Section 1170.15 Discretion
Yang contends that the trial court did not understand it had discretion to impose a concurrent or consecutive term for the count 3 offense of violating section 136.1, subdivision (c)(1). He asserts that sections 669, 1170.1, and 1170.15 require the sentence be vacated and the matter be remanded for resentencing. On this record, we agree the sentence should be vacated and will remand for resentencing.
Factual Summary
The probation report, in listing criteria that affect the imposition of concurrent or consecutive sentences, states, "Pursuant to PC 1170.15, the term in Count Three is mandated to be imposed consecutively." At the December 29, 2015 sentencing hearing, the trial court noted for the record that it had "read and considered the probation report." Both defense counsel and the prosecutor argued recommendations made in the probation report, but neither party addressed the imposition of consecutive sentences for the count 3 offense pursuant to section 1170.15. In imposing a term for the count 3 offense, the trial court stated specifically "the Court is imposing the middle term of three years. And pursuant to Penal Code section 1170.15, that is a full term middle term consecutive."
Analysis
Section 669, subdivision (a), provides in part that at sentencing, the trial court "shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively." (§ 669, subd. (a).) "Section 1170.1, subdivision (a) explains that if a defendant is to be sentenced for more than one felony, the total term of imprisonment is the aggregate term for all the convictions. The aggregate term is determined by imposition of a full sentence on the felony with the greatest term of imprisonment including enhancements (the principal term), and then adding a one-third the midterm sentence for each felony for which a consecutive sentence is imposed, including one-third the term for any enhancements applicable to those felonies (the subordinate term(s))." (Woodworth, supra, 245 Cal.App.4th at p. 1478.)
Section 1170.15 is an exception to the rule set forth in section 1170.1, subdivision (a). (Woodworth, supra, 245 Cal.App.4th at p. 1478, fn. omitted.) Section 1170.15 provides, in relevant part:
"Notwithstanding 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 with respect to, or a person who was about to give material information pertaining to, the first felony . . . 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, and shall include the full term prescribed for any enhancements imposed for being armed with or using a dangerous or deadly weapon or a firearm, or for inflicting great bodily injury."
Yang's sentencing occurred approximately three months before this court published its decision in Woodworth, supra, 245 Cal.App.4th 1473. In Woodworth, this court held that "the plain language of section 1170.15 does not mandate consecutive sentences." (Id. at p. 1479.) As we stated, "The section does not require the trial court to impose a consecutive sentence, but instead indicates that if the trial court chooses consecutive sentencing it must impose a full-term sentence for the witness dissuasion count." (Ibid.)
"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. [Citation.] [¶] Remand for resentencing is not required, however, if the record demonstrates the trial court was aware of its sentencing discretion. [Citations.] Further, remand is unnecessary if the record is silent concerning whether the trial court misunderstood its sentencing discretion. Error may not be presumed from a silent record." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228-1229 (Brown); see People v. Downey (2000) 82 Cal.App.4th 899, 912.)
Section 1170.15 was interpreted by the probation officer as requiring a consecutive term be imposed for the count 3 offense of violating section 136.1; the probation report specifically so stated. Both defense counsel and the prosecutor argued recommendations made in the probation report at the sentencing hearing, but neither party addressed the imposition of consecutive sentences for the count 3 offense pursuant to section 1170.15.
After hearing argument from counsel, the trial court noted it had read and considered the probation report, then proceeded to impose the sentence recommended by the probation officer. In imposing a term for the count 3 offense, the trial court stated it was imposing the middle term of three years, "[a]nd pursuant to Penal Code section 1170.15, that is a full term middle term consecutive."
The trial court said nothing at sentencing to indicate it (1) disagreed with the statement in the probation report that a consecutive term for the section 136.1 offense was mandatory; (2) understood its discretion to impose a concurrent or consecutive term for count 3; or (3) would impose a consecutive sentence on count 3, even if it had the discretion to do otherwise. Based upon the record, we cannot assume the trial court would have the imposed the sentence it did, regardless. The trial court imposed the mitigated term for the section 273.5, subdivision (a) offense and granted probation, staying the term of imprisonment.
The People argue the record is silent on whether the trial court misunderstood its discretion to impose concurrent or consecutive terms. We disagree. Where the record contains specific statements that consecutive terms were mandatory, there is no indication from the trial court that it understood otherwise, and sentencing occurred prior to this court's decision in Woodworth, the record is not silent. A trial court unaware of its discretion cannot exercise informed discretion. (Brown, supra, 147 Cal.App.4th at p. 1228.)
We will vacate the sentence and remand for resentencing to allow the trial court to exercise its informed discretion. (Woodworth, supra, 245 Cal.App.4th at p. 1480.)
II. Section 654
Because we are remanding this matter for resentencing and the trial court will again have to address this issue, we will resolve Yang's contention that section 654 mandates a stay of the term imposed for the count 3 offense of dissuading a witness. It does not.
A criminal defendant can suffer multiple convictions for a single criminal act or series of related criminal acts. However, a defendant cannot be punished more than once for the same criminal act or for a series of criminal acts committed "incident to one objective." (§ 954; § 654; Neal v. State of California (1960) 55 Cal.2d 11, 19; People v. Kirvin (2014) 231 Cal.App.4th 1507, 1517.) Section 654 provides, in relevant part: "An 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 proscription against double punishment in section 654 is applicable where there is a course of conduct which ... comprises an indivisible transaction punishable under more than one statute .... The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.' [Citation.] 'The defendant's intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced.'" (People v. Coleman (1989) 48 Cal.3d 112, 162, italics added.) "The failure of defendant to object on this basis in the trial court does not forfeit the issue on appeal." (People v. McCoy (2012) 208 Cal.App.4th 1333, 1338.)
Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312 (Hutchins).) Its findings will not be reversed on appeal if there is any substantial evidence to support them. (Hutchins, supra, 90 Cal.App.4th at p. 1312; People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.) We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. (Hutchins, supra, 90 Cal.App.4th at pp. 1312-1313; People v. Jones (2002) 103 Cal.App.4th 1139, 1142-1144.)
Here, there is substantial evidence supporting the trial court's implied finding Yang had a separate intent and objective in committing the section 136.1 offense. Section 136.1 is one of several statutes contained within part I, title 7, chapter 6 of the Penal Code, "which establishes a detailed and comprehensive statutory scheme for penalizing the falsification of evidence and efforts to bribe, influence, intimidate or threaten witnesses." (People v. Fernandez (2003) 106 Cal.App.4th 943, 948.) A violation of section 136.1, subdivision (c)(1) occurs when the defendant knowingly attempts to dissuade or prevent a victim or witness to a crime from making a report of the crime to any peace officer and the attempt to dissuade is accompanied by force or by an express or implied threat of force or violence. (People v. Brown (2016) 6 Cal.App.5th 1074, 1079; People v. Ortiz (2002) 101 Cal.App.4th 410, 416.) Section 136.1 is a specific intent crime. (People v. Wahidi (2013) 222 Cal.App.4th 802, 806.)
On the other hand, section 273.5, subdivision (a), occurs when the defendant willfully inflicts a corporal injury resulting in a traumatic condition on a spouse or cohabitant. (§ 273.5, subd. (a).) Nothing in the language of section 273.5, subdivision (a) requires an intent to dissuade or prevent the victim from reporting the offense. Despite use of the word willfully, section 273.5 is a general intent crime. (People v. Thurston (1999) 71 Cal.App.4th 1050, 1054-1055.)
Consequently, violations of sections 273.5 and 136.1 require different intents and have different objectives. The evidence establishes that Yang and the victim were arguing over finances. Yang hit the victim with a TV remote, and then punched her with a closed fist on the right side of her face. At this point, the section 273.5 offense is complete.
When the victim pulled away from Yang to get to a telephone and call the police, Yang yelled at her not to make the call. After the victim picked up the telephone and tried to dial 911, Yang sat on her and bit her twice to get her to drop the phone. These acts by Yang had a different intent and purpose - to prevent the victim from making a report of the section 273.5 crime he had just committed.
The trial court has broad latitude in making a section 654 determination. (Hutchins, supra, 90 Cal.App.4th at p. 1312.) Despite the fact the acts occurred on the same occasion, there is substantial evidence supporting the trial court's implied finding they were committed with different intents and objectives. (See People v. Galvez (2011) 195 Cal.App.4th 1253, 1263 [defendant committing assault and attempting to dissuade a witness had multiple objectives and could be punished for both offenses].)
DISPOSITION
The sentence is vacated and the matter remanded for resentencing.