Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters and Susan S. Pithey, Assistant Attorneys General, Ana R. Duarte and Kenneth C. Byrne, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. KA116082 APPEAL from a judgment of the Superior Court of Los Angeles County, Thomas C. Falls, Judge. Affirmed in part, sentence vacated, and remanded with directions. Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters and Susan S. Pithey, Assistant Attorneys General, Ana R. Duarte and Kenneth C. Byrne, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Corrinna Carabajal was sentenced to 21 years in state prison after a jury found her guilty of committing aggravated assault. She contends the trial court committed prejudicial error by not instructing the jury on simple assault as a lesser-included offense and by failing to obtain a waiver of her trial rights prior to accepting a factual stipulation. Defendant also asks us to remand for resentencing under Senate Bill No. 1393 and Senate Bill No. 136. We agree defendant is entitled to the benefit of the changes in sentencing law. We therefore vacate her sentence and remand the matter to allow the court to exercise its discretion regarding the five-year sentence enhancement under SB 1393, and direct it to strike defendant's one-year prison priors as mandated by SB 136. In all other respects, we affirm.
Defendant also contends the court violated her due process rights by imposing a restitution fine and court fees without a determination of her ability to pay under People v. Dueñas (2019) 30 Cal.App.5th 1157. This issue is presently pending before our Supreme Court in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844. Because the lower court may decide not to impose the challenged fine and fees upon resentencing, we do not address defendant's Dueñas argument; defendant should raise this issue at the resentencing hearing.
By information, the People charged defendant with one count of aggravated assault (Pen. Code, § 245, subd. (a)(1)). The information alleged defendant personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)) while defendant was released from custody on bail or her own recognizance (§ 12022.1). The information also alleged one strike prior (§ 667, subds. (a), (b)-(j)), one serious-felony prior (§ 667, subd. (a)), and three prison priors (§ 667.5, subd. (b)). Defendant pled not guilty and denied the allegations.
All undesignated statutory references are to the Penal Code.
After a trial at which she testified on her own behalf, a jury found defendant guilty of the aggravated assault, and found the conduct allegations true. The court held a bench trial on the prior conviction allegations and found them to be true.
The court denied defendant's motion to dismiss the prior strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and sentenced her to an aggregate term of 21 years. The court imposed 8 years for the substantive offense (the upper term of 4 years, doubled for the prior strike), plus 3 years for the great-bodily-injury enhancement, 2 years for the on-bail enhancement, 5 years for the serious-felony prior, and 3 years for the prison priors. At the same hearing, the court sentenced defendant to a consecutive term of 16 months in a separate case, which was the subject of a separate appeal. (See People v. Carabajal (Oct. 29, 2019, B290813) [nonpub. opn.] (Carabajal I).)
Defendant filed a timely notice of appeal.
1. Prosecution Case
1.1. The Assault in the Garage
Defendant and Ashley Gail were tenants in a group home. For days, the women argued over a newly vacant room, and Gail eventually stopped talking to defendant to defuse the situation.
On August 21, 2017, Gail was drinking alcohol and talking with a few other people in the group home garage. Sometime thereafter, defendant walked in and began arguing with Gail about the room. Following the argument, defendant walked out of the garage.
Less than a minute later, defendant returned and "charged" at Gail. Gail saw defendant's hand coming forward; believing she was about to get punched, Gail braced herself. After feeling an impact from the punch, Gail reached out and lunged at defendant. The women engaged in a struggle that took them through the open garage door to the outside. During the struggle, Gail noticed defendant had a knife. The people in the garage rushed outside and yelled for the women to stop fighting.
After the women separated, Gail touched her face and realized she had sustained lacerations. Defendant held the knife in her hand as she walked back into the group home.
An unnamed male tenant of the group home called 911, reporting Gail "has a really big slice on [her] forehead" and was "bleeding really bad. She's cut open really bad." The caller said that his roommate—who was still at the scene of the assault—might have attacked Gail.
1.2. The Investigation
Officer Chris Lewis responded to the call. Lewis noticed Gail had lacerations on her face and appeared to have defensive wounds on her hands. Lewis called for additional units and paramedics. Lewis believed the clean lacerations to Gail's forehead were consistent with a knife slash. Gail told Lewis that defendant had cut her face with a "[b]uck knife, pocket knife."
Lewis next spoke with defendant, who had no visible injuries and did not look like she had been in a fight. Defendant denied having a knife and said she did not know how Gail had been injured. Defendant told Lewis that Gail attacked her. Defendant fell down and blacked out. Defendant's friend helped defendant get up.
Lewis believed defendant "exaggerated" her version of the events by pretending to cry without any tears. Defendant was arrested following her conversation with Lewis.
Gail was taken to the emergency room for the lacerations to her forehead. One of the lacerations required six stitches, and her forehead remained scarred.
Later that evening, Gail brought a four-inch black folding knife to the police station. She told the police she found the knife locked in the open position on the floor of one of the group home's bedrooms.
1.3. Defendant's In-custody Telephone Calls
Between August 24 and September 27, 2017, defendant made 11 recorded phone calls from jail to family and friends, mostly to her wife, Monica Mendoza. The prosecution played recordings of ten of the calls for the jury.
In one call, defendant admitted to Mendoza that she had a "black knife" during the incident, which defendant said could be found "in the other room by the dresser on the floor."
In another call, a friend of defendant's said, "But girl, you fucking stabbed that girl in the face!" Defendant responded that her attorney would call the friend so the friend could say Gail choked defendant. Defendant promised to help the friend get a car when she got out of jail.
The remaining calls were about defendant's concern that Gail would testify against her at trial. At one point, defendant told a friend "God bless you" after he said he would make sure Gail would not appear in court. During another call, defendant told Mendoza that Gail could "go but she doesn't have to say anything[.] Tell her to plead the fifth."
1.4. Victim Testimony
At trial, Gail testified that she could not recall whether she struggled with defendant, how she sustained her injuries, talking with the police, or turning in the knife. Gail believed her memory loss was caused by suffering a head injury, drinking a cup of vodka before the incident, taking pain medication, and getting into two car accidents after the incident.
2. Defense Case
Defendant testified on her own behalf and played for the jury her own 911 call, made less than one minute after the male tenant called 911. Defendant told the operator she had been talking with another resident at the group home when Gail approached. Out of nowhere, Gail started hitting defendant and grabbed her by the throat. Gail "knocked [defendant] out." Defendant said she "must have" pulled Gail, stating: "[S]he hit me so hard. And I got up. And she says that I cut her. Well, and then I don't have any idea she knocked me out." Defendant did not know why Gail's forehead was bleeding because she "fell out." The operator asked defendant if she had a knife, and defendant responded, "No! I—A knife? I didn't—a, a knife? No!"
The jury asked one question during deliberations: "What was the time of the 911 calls made by the unknown male and [defendant]?" In response, the court stated the male called at 1:49:43 p.m. and defendant called at 1:50:32 p.m.
At trial, defendant acknowledged she lied about not having a knife during the incident: "I did have a knife when I went to the garage." She also acknowledged that she lied to the 911 operator about her age.
Defendant testified that she swung at Gail to defend herself. Defendant did not tell the 911 operator or police she swung at Gail because "[e]verything just happened so fast." Defendant later testified that she did not remember if she swung at Gail because everything was "hazy."
1. The trial court was not required to instruct the jury on simple assault.
Defendant contends the court was required, sua sponte, to instruct the jury on simple assault as a lesser-included offense of aggravated assault. She premises her argument on her own 911 phone call, which she contends constitutes substantial evidence from which the jury could have concluded she assaulted Gail without a knife. We disagree.
1.1. The Duty to Instruct on Lesser-included Offenses
" 'California law requires a trial court, sua sponte, to instruct fully on all lesser necessarily included offenses supported by the evidence.' [Citation.]" (People v. Vasquez (2018) 30 Cal.App.5th 786, 792 (Vasquez).) However, "the existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense ... ." (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) Instead, such instructions are only required when the evidence " 'is substantial enough to merit consideration' by the jury [Citations.]" (ibid.), "that is, evidence that a reasonable jury could find persuasive. [Citation.]" (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8; accord People v. Turner (1990) 50 Cal.3d 668, 720 [sua sponte duty arises when there exists "evidence that would justify a conviction of such a lesser offense"].)
"In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury." (Breverman, supra, 19 Cal.4th at p. 162.) Moreover, "the sua sponte duty to instruct on lesser included offenses, unlike the duty to instruct on mere defenses, arises even against the defendant's wishes, and regardless of the trial theories or tactics the defendant has actually pursued." (Ibid.) Hence, "substantial evidence to support instructions on a lesser included offense may exist even in the face of inconsistencies presented by the defense itself ... ." (Id. at pp. 162-163.)
We review de novo the trial court's failure to instruct on a lesser-included offense. (People v. Cook (2006) 39 Cal.4th 566, 596.)
1.2. Assault is a lesser-included offense of aggravated assault.
Defendant was charged with and convicted of aggravated assault, which is defined as "an assault upon the person of another with a deadly weapon or instrument other than a firearm." (§ 245, subd. (a)(1), italics added.) Thus, section 245, subdivision (a)(1) subsumes "assault," which is defined as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240; People v. McDaniel (2008) 159 Cal.App.4th 736, 747 ["simple assault (§ 240) is a lesser included offense of aggravated assault"].)
1.3. There was no substantial evidence warranting an instruction on simple assault.
After reviewing defendant's 911 phone call, upon which she relies to advance her claim, we discern two slightly different factual scenarios presented in the call. Neither scenario constitutes substantial evidence of a simple assault.
In the first scenario, defendant told the 911 operator Gail had suddenly come upon her, punching her and grabbing her throat. Gail "knocked [defendant] out." Defendant "went out after that. I don't remember. And I must have pulled her ... ." Although these statements could establish that defendant touched Gail, they also indicate defendant was unconscious at the time she made contact with Gail. Under such a scenario, defendant's touching of Gail would not amount to a criminal assault. (§ 26, par. Four; People v. James (2015) 238 Cal.App.4th 794, 805.)
A defendant who commits an assaultive act "without being conscious thereof" cannot be criminally liable. (§ 26, para. Four.) An unconscious act "need not rise to the level of [an inability to] perform manual movements; it can exist 'where the subject physically acts but is not, at the time, conscious of acting.' " (People v. Halvorsen (2007) 42 Cal.4th 379, 417; People v. Sedeno (1974) 10 Cal.3d 703, 717 ["unconscious act ... is one committed by a person who because of ... a blow on the head, or similar cause is not conscious of acting and whose act therefore cannot be deemed volitional"], overruled on another ground in Breverman, supra, 19 Cal.4th 142, and disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.)
In the second scenario, defendant again said Gail had suddenly punched her and grabbed her by the throat. This time, defendant stated, "all I remember is pulling her with me" while defendant was falling. But defendant was adamant she did not hit Gail. Defendant's pulling of Gail was therefore either accidental or an intentional, defensive response to being attacked. Neither would amount to an assault. (See CALCRIM No. 915.)
Because defendant's 911 call does not constitute substantial evidence that she assaulted Gail without using a knife, the court did not err in failing to instruct the jury on simple assault.
2. The trial court was not required to obtain a waiver of defendant's trial rights before accepting the parties' stipulation to her on-bail status.
In her opening brief, defendant argues automatic reversal is required because the record does not indicate that the court obtained a rights waiver before accepting a stipulation that on "August 21st, 2017, the date of the alleged commission of th[e] offense, [defendant] was released on bail in case KA115675." In her reply brief, defendant concedes the argument is foreclosed by People v. Adams (1993) 6 Cal.4th 570, 574-581 [Boykin-Tahl requirements not required for stipulation that defendant was out of custody on own recognizance for purposes of section 12022.1 on-bail enhancement]). We agree with defendant that the Supreme Court rejected this argument in Adams, which is binding on this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
3. Senate Bill No. 1393
When the court imposed five years for defendant's serious-felony prior, it lacked discretion to strike or dismiss it. (See People v. Jones (1993) 12 Cal.App.4th 1106, 1116-1117.) Senate Bill No. 1393 (SB 1393), which went into effect on January 1, 2019 (2017-2018 Reg. Sess.), amended section 667, subdivision (a), and section 1385, subdivision (b), to allow a court to exercise its discretion to strike or to dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.)
In supplemental briefing, the parties agree SB 1393 applies in this case because the appeal was not final on the law's effective date. (People v. Vieira (2005) 35 Cal.4th 264, 305-306.) The People, however, oppose remand for resentencing, arguing the following statements by the trial judge clearly show the court would not have exercised its discretion in defendant's favor:
In Carabajal I, we stated that we would address SB 1393 in this appeal. On our own motion, we take judicial notice of the documents and filings from Carabajal I. (Evid. Code, § 452, subd. (d).)
"Just so we're clear. I don't know that I stated this earlier. The court fully understands its discretion at every stage of the sentencing, and though the majority of the sentencing the court feels was mandated, I would not have done anything differently if it was purely my discretion. When I say 'mandated,' that is with the 12022.1 out-on-bail allegation, the five-year priors. I would have imposed the sentence the same whether it was mandatory or not."
Notwithstanding the court's strong statements during sentencing, our high court has recognized that a trial court " 'which is unaware of the scope of its discretionary powers can no more exercise that 'informed discretion' than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.]" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
Here, the court not only lacked discretion to strike the five-year enhancement when it pronounced defendant's sentence, but also imposed less than the maximum sentence in defendant's second criminal case, which it disposed of during the same proceeding. (See People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081-1082 [suggestion by court it would not strike an enhancement if it had discretion is not dispositive if it expressed no intent to impose the maximum possible sentence].) Thus, we cannot definitively say the court would not exercise its discretion to strike the five-year enhancement if given the opportunity to do so. (See People v. McDaniels (2018) 22 Cal.App.5th 420, 427 [given "high stakes" involved, "a reviewing court has all the more reason to allow the trial court to decide in the first instance whether these enhancements should be stricken, even when the reviewing court considers it reasonably probable that the sentence will not be modified on remand"].)
We express no opinion as to how the trial court should exercise its newly-granted discretion under sections 667, subdivision (a) and 1385, subdivision (b), but simply remand the matter so that it may do so in the first instance.
At the resentencing hearing, defendant may also raise, and the court may consider, defendant's ability to pay fines, fees, and assessments. --------
4. Senate Bill No. 136
When it sentenced defendant, the court was also required to impose one year for each prior separate prison term. (See former § 667.5, subd. (b) ["in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term"].) On October 8, 2019, however, the governor signed Senate Bill No. 136 (SB 136), which limits that enhancement to defendants whose prior prison terms were for sexually violent offenses. (§ 667.5, subd. (b), as amended by Stats. 2019, ch. 590 ["the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of section 6600 of the Welfare and Institutions Code"].)
Because SB 136 ameliorates the possible punishment for a class of persons (those who have served prior prison terms), it applies retroactively to judgments, like this one, that are not final on the statute's effective date of January 1, 2020. (Cal. Const., art. IV, §8, subd. (c)(1); People v. Buycks (2018) 5 Cal.5th 857, 883; In re Estrada (1965) 63 Cal.2d 740, 745.) As defendant's prior prison terms were not for sexually violent offenses, they must be stricken.
The sentence is vacated and the matter is remanded for resentencing. The trial court is directed to strike the three one-year prison priors pursuant to Senate Bill 136, and resentence defendant. Upon resentencing, the court may consider the full range of options available to it at that time, including defendant's ability to pay any imposed fine, fee, or assessment. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J. WE CONCUR:
EDMON, P. J.